Case Number: PSES GAAR 010105
Province: Eastern Cape
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 22 May 2000
Arbitrator: EBRAHIM PATELIA
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 010105 GDE
In the arbitration between:
DEPARTMENT OF EDUCATION -
GAUTENG PROVINCE RESPONDENT
1 . DETAILS OF HEARING AND REPRESENTATION
.1 For the sake of convenience the Department of Education - Gauteng Province will be referred to as “the employer” or “the Department”. SADTU will be referred to as the Applicant.
.2 Ms P Belwane of the Department represented the employer. Mr E Mahlangu and Mr P Mbhela of SADTU represented the Applicant.
2 . POWERS
In terms of the Arbitration Agreement as contained in the Education Labour Relations Council Resolution no 7 of 1997, I am required to:
.1 Determine the issues in dispute, as reflected below, on the evidence presented to me.
.2 Award any sanction that I consider to be fair and/or appropriate to settle this matter.
3 . ISSUES NOT IN DISPUTE
From the evidence led and the arguments’ presented to the arbitration the following issues are common between the parties:
.1 This dispute stems from certain recommendations made by the SGB for the appointment of three educators at Unity Secondary School in terms of vacancy list 7(A) & (B). A grievance was lodged to the District Grievance Committee in terms Circular 5 of 1998. This committee found that there were irregularities in the recommendations by the SGB. The committee ordered that the posts be re-advertised. Also those persons already short-listed would remain as short-listed candidates for the new interview process. These persons as per the letter of the district director, dated 14 October 1999, should be exempted from re-applying.
.2 It appears fro the evidence that, the principal or an educator (the evidence is not clear on who the person was) of the school who was a member of the SGB, then took up this matter with Mr J Thipe as an appeal. Mr J Thipe was “Acting deputy chief education specialist - Directorate Labour Relations” at the time. Mr J Thipe then issued a letter dated 25 June 1999, to Unity SGB, stating that :
“(The) appeal with regards to the decision taken by the District Grievance Committee has been upheld. The district has been informed about the decision and requested to process the School Governing Body’s recommendation expediently”.
.3 The recommendations of the SGB have not been affected by the department to date. The school has re-advertised only two posts of the three in issue. No interviews have taken place on these applications.
4 . THE ISSUES IN DISPUTE
From the arguments and evidence presented by the parties the following issue is in dispute :
.1 Whether the letter dated 25 June 1999, has the force and effect to allow the Department to appoint as per the SGB’s recommendations.
5 . SUMMARY OF THE APPLICANT’S CASE
.1 The representatives of the union presented its case by way of their argument.
.2 The union argued that the letter of 25 June 1998 was a decision by the Department and needs to be given full effect. This letter was generated after the author of the letter considered all parties arguments on the issue.
.3 The union argued that the appeal process was a legitimate process. They also testified that they were part of the District Grievance Committee meeting. They agreed that the SGB’s recommendations were flawed in that the forms were not fully completed. However, this matter on appeal to the Department was decided upon. This decision must be given force and effect.
.4 The union argued that the process of re-advertising goes against the grain of Circular 5 of 1998. It allows for certain people to be short-listed automatically. It also has the effect of allowing more than 5 people to be short-listed. This is an unfair process.
.5 The union accordingly argued that the recommendations of the SGB be immediately implemented.
6 . SUMMARY OF THE DEPARTMENT’S CASE
.1 The Department representative presented her argument in support of her case.
.2 The Department argued that this letter was issued. However only the HOD must affect appointments after considering the recommendations of the SGB. In this case the letter of Mr J Thipe was written without considering the laws of the SGB recommendations.
.3 The irregularities on the recommendations were as follows : Only three members out of six signed the recommendations, the posts were advertised as restricted to internal candidates of the school, candidates from outside the school were not scored, and no motivations for the recommendations were made.
.4 These flaws needed to be rectified. It would be unfair to appoint persons to positions after such an unfair process. It was therefore decided to go with the recommendations of the District Grievance Committee. All the posts needed to be re-advertised. However, due to a slip-up at the school, only two posts were re-advertised.
.5 The reason for allowing those persons already short-listed not to re-apply was to limit the unfairness. Those persons were already part of the process and needed to be given consideration.
7 . FINDINGS
.1 This matter must be determined on the basis of fairness in the particular circumstances.
.2 It is clear from my reading of the Employment of Educators Act 76 of 1998 that the Head of Department (HOD) in a provincial appointment has the sole right to make appointments of educators based on the recommendations from the school. The agent acting under the SGB structure has the duty to investigate and interview prospective candidates and make recommendations to the HOD. The HOD would then exercise its discretion before confirming the appointment. A similar method of contracting is utilised in most government departments and is the nature of contracting with some companies.
.3 In this particular case it is admitted by the union that the recommendations by the SGB was flawed. The forms contain no motivation for the recommendations. I also find the other flaws mentioned by the Department to be more probable as the Applicants did not challenge them in any manner. It is also undisputed that the legitimate structure of the District Grievance Committee, which included the union’s representatives, found the process to be flawed. Their recommendation was for the post to be re-advertised.
.4 I find, based on the above, that it is more probable that the process by the SGB was materially flawed. I find that the Applicants presented no evidence to even suggest that the decision by the District Grievance Committee was invalid or lacked insight. I find that since the union was part of the process, the decision by the District Grievance Committee is very important to this matter.
.5 The process of the “appeal” to Mr J Thipe is not provided for in any regular or procedure. I find that this “appeal” could only have been an accommodation by the said person. Mr J Thipe was the Acting Deputy Chief Education Specialist - Directorate Labour Relations at the time. As Mr J Thipe was not available to testify at the arbitration, it is unclear as to what he considered before writing the letter dated 25 June 2000. It is clear that the letter states, “the district has been informed and requested to process the School Governing Bodies recommendations”.
.6 I find that Mr J Thipe had no authority to appoint any person to a position. The HOD can only confirm an appointment. Also it is clear that recommendations by the SGB were flawed materially, as explained above. Mr J Thipe cannot make such a flawed process valid. He had no authority to make such a ruling. However, it is clear that his letter simply states that he has “requested” the District to proceed with the appointments. The letter as per my reading in no way confirms the appointment of the recommended candidates.
.7 I accordingly find that even though the letter is an official department letter, such alleged decision cannot be enforced. Letters creating unfairness in a company cannot be enforced simply because it is written by person of the employer and on the employer’s letterhead. To allow this would be to allow numerous unfair and ultra vires decisions by officials of the Department to be upheld simply because it is contained on an official letter of the Department. The HOD is the only person authorised to confirm an appointment in this case there was no such confirmation of Mr J Thipe’s letter.
.8 The only valid and enforceable decision is that of the District Grievance Committee. I find that the Department and the Applicants must immediately implement the full decision of the District Grievance Committee.
Date : 22 May 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR 010105
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPOINT AS PER SGB RECOMMEND.
ARBITRATOR EBRAHIM PATELIA
DATE OF ARBITRATION 08 MAY 2000
APPLICANT MESSRS E MAHLANGU, P MBHELA
RESPONDENT MS P BELWANE
The only valid and enforceable decision is that of the District Grievance Committee. I find that the Department and the Applicants must immediately implement the full decision of the District Grievance Committee.
DATE OF AWARD 22 MAY 2000