PSES 248 KZN
PSES 248 KZN
Award Date:
30 June 2000
Case Number: PSES 248 KZN
Province: KwaZulu-Natal
Applicant: P GOVENDER
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: DURBAN
Award Date: 30 June 2000
Arbitrator: J KALIDEEN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 248 KZN
In the arbitration between:
P GOVENDER APPLICANT
and
DEPARTMENT OF EDUCATIONKWAZULU-NATAL RESPONDENT
ARBITRATION AWARD
PARTIES PRESENT : Applicant represented by Mr G Maharaj from APEK
Respondent represented by Mr P J Jenkins
Assisted by Mr S E Mdletshe and Messrs
Ramcheron and R R Ramdin from SADTU
DATE : 14 May / 12 June (2 days)
VENUE : Port Shepstone
1 . THE ISSUE IN DISPUTE
Unfair Labour Practice : The unfair conduct of the Department relating to the non appointment of Mr P Govender to post of Principal of Roseville Secondary School.
2 . TERMS OF REFERENCE & POWERS
2.1 The arbitration was conducted in terms of an agreement reaching between the Applicant represented by Mr G Maharaj, APEK and the Department of Education, Mr Jenkins, after an unsuccessful conciliation process.
2.2 I am required to determine, based on the evidence presented in the arbitration :
2.2.1 There is a fair cause to make a finding of an Unfair Labour Practice.
2.2.2 What sanction or remedy is fair.
2.2.3 Whether the employee had a fair opportunity to state his case.
2.3 As arbitrator, I am empowered to make an award, which I deem appropriate and with due regard, to fairness. The parties agree that this award will be final and binding on them.
2.4 It is not the intention to document a full record but a summary only of the proceedings.
2.5 I am grateful to all parties for their assistance and the manner in which the Representatives presented their arguments. All parties handed in documentary evidence at the arbitration. 1 witness testified for SADTU, 7 witnesses for the Applicant and no witnesses for the Department.
2.6 The Point in Limine raised by SADTU was taken into cognizance. SADTU placed on record that the dispute around the Principalship of Roseville was resolved at conciliation. The arbitrator then noted that this dispute was a fresh dispute between Mr Govender and the Department on the non-appointment of Mr Govender to the post of Principal, Roseville Secondary and the department was bound to resolve this dispute. This no doubt had a bearing on the nomination of Mr Reddy to the post, which was resolved at another dispute, namely conciliation on 8 Marsh 2000. The dispute between Mr Reddy and the Department was another dispute on the non-appointment of Mr Reddy to the post of Principal Roseville Secondary that was settled. These were 2 separate disputes for the same post by 2 different applicants.
2.7 SADTU’s presence at the arbitration was in accordance to the CCMA rules governing at Joinder and SADTU was also a party at the conciliation of this dispute.
3 . EVIDENCE & ARGUMENT
3.1 Background
The dispute was centered on the non-appointment of the Applicant and the following was alleged :
3.1.1 The Department failed to appoint Mr Govender to the post of Principal and this constituted an Unfair Labour Practice and the Applicant was prejudiced at various stages in the process and such prejudice affected his chances of being appointed.
3.2 Applicant’s Contention
3.2.1 The Applicant’s representative, Mr George Maharaj based his arguments on 3 grounds, namely:
3.2.1.1 Prejudice suffered by the Applicant at the nomination stage;
3.2.1.2 Prejudice suffered by the Applicant at the interview stage;
3.2.1.3 Prejudice suffered by the Applicant at the dispute stage.
3.2.2 He argued that the selection committee submitted two EC6 forms (Exhibit page 80 & 89) dated 4 March 1998 and the other was undated. The Governing Body ratified the one-dated 4 Marsh 1998 and the other was not ratified. Mr Govender was nominated by the Governing Body, which was chaired by Ms R F Tomlinson, on 12 June 1998, and accepted by Mr Govender on 17 June 1998. On 23 June 1998 Mr Govender received a further nomination as Deputy Principal of Umkomaas Secondary which he rejected.
3.2.3 On 7 September 1998 the same Governing Body nominated Mr Reddy to the post of Principal, Roseville Secondary School. This nomination was not ratified by the GB and could not have been made without first withdrawing the nomination to Mr Govender. Mr Reddy also accepted a previous nomination, Principal of Sezela Primary School. He also accepted the nomination to Rosevile Secondary School.
3.2.4 The union then argued that the Applicant was prejudiced at the interview stage. The scores were averaged instead of arriving at a consensus score. The Applicant or non-application of the supersession clause also prejudiced the Applicant in not being appointed to the post. The scores were averaged at the interview process. There was a difference of 5 points between the average score of Mr Govender who scored 34.75 and Mr Reddy who scored 39.75.
3.2.5 It was argued by the Applicant’s representative that the Applicant was not successful as the nominated candidate as the difference in score of 6 points in the final score disqualified him from benefiting from supersession clause. Reaching a final score by consensus was mandatory and this was not followed as the scores were averaged. The Management representative at the interview process, Mr S M Zuma advised the Governing Body to submit a motivation for Mr Govender for supersession and this was done. It was also argued that the Applicant who had acted in the post was the only Applicant with the relevant experience.
3.2.6 The Union then focussed its argument on the prejudice suffered at the dispute stage. The SADTU observer, Mr S S Pillay objected to the averaging of the scores and declared a dispute in the form of a letter, which was undated. It was argued that the Dispute Resolution Committees had been declared Ultra Vires and whatever decisions they had taken were null and void. Thereafter the dispute was referred to the ELRC for resolution. A conciliation agreement was reached between the Department and SADTU whereby Mr Reddy was then nominated to the post of Principal. It was argued that neither Mr Govender nor his Union was informed of this process or the dispute. The conciliator presented the parties with 3 options and the conciliator was intimidatory and biassed in his approach and had pre-judged the outcome. The options were arbitration; nominate Mr Reddy; or if the Governing Body was not capable of performing this function, a ruling could be made regarding this appointment by the State.
3.2.7 The Applicant (Mr P Govender) testified as a witness. He was a level 2 educator at that time, testified that he accepted the nomination for the post of principal (level 4), Roseville Secondary School and declined the post of Umkomaas Secondary deputy principal post (level 3). He was not aware of the conciliation and was not informed by the department but heard about the conciliation process that took place. He was not aware of what happened at the conciliation.
3.2.8 Under cross-examination Mr Govender confirmed that it was the responsibility of the Department and the Governing Body regarding his nomination, and firmly stated that the Department had a responsibility with due regard to the nominations submitted by the Governing Body for the same post.
3.2.9 Mr Govender confirmed that he referred his own dispute to his lawyer after not having heard from his Union, SADTU. He was unable to inform the arbitration on the time frames from the time he referred his dispute to SADTU and then through to his lawyer. He then confirmed that it was about 2-3 weeks time delay only before he went directly to his lawyer. His lawyer was unable to indicate the status of Govender’s dispute.
3.2.10 Under re-examination Mr Govender stated he did not receive a copy of the circular.
3.2.11 Another witness, Mr H Khan, confirmed that he was a Governing Body member after the selection had taken place. He was only involved at the conciliation process. He testified that a certain attorney, Mr Rajah Naidoo, informed them that if there is a difference of 5 points, the person with the lower score drops off. He also claimed that he informed Mr Rajah Naidoo that the people who took the decision were not notified about the scoring and also asked why the process could not be redone. He was then told that he must forget about Mr Govender and talk about Mr Reddy. He claimed that he was forced to accept Reddy because of the point difference. He was disappointed that the decision of the GB was rejected.
3.2.12 Under cross-examination he testified that he was a co-opted member of the GB with no voting rights. He was also not aware of the procedures manual regarding the selection process when Mr Rajah Naidoo referred to the manual. He claimed that he had no option but to accept and sign the nomination of Mr Reddy at the conciliation process. He also testified that he had no problem with the procedure followed at the conciliation.
3.2.13 Under cross-examination he confirmed that he was only involved at the conciliation. He confirmed the process followed at the conciliation. The conciliator put up the steps to be followed on the board, explained the procedures, asked to follow the procedures and that was the process of the conciliation. The scores of all the candidates were put up and if the difference in scores was greater than 5 then those persons were not to be considered in terms of the procedures manual (supersession). Mr Khan was not sure if the EC6 was referred to or the number of options that the conciliator tabled. He also claimed that this was a dispute and may end up in court. He also claimed that there were mixed feelings within the GB regarding the nomination of Mr Reddy and he had no option but to sign. He also testified that they were not asked to sign and they signed. He also could not remember whether the conciliator asked them to talk about the decision of nominating Mr Reddy. He also could not remember what they spoke about when the conciliator left the members to discuss their decision to nominate. He also could not recall what the decision of the Governing Body was at that time. He did confirm that the decision taken by the GB was that Mr Reddy should be the principal and that this decision was recorded. He also confirmed that the conciliator did not ask them to go with any particular person but simply to follow the rules and that was what was followed by the GB at the conciliation.
3.2.14 Under cross-examination, Mr Khan stated that the procedures were followed and that the conciliator did mention that the case can go to court and there was a dispute from both sided.
3.2.15 Another witness, Mr S S Pillay, confirmed that the was a SADTU observer at that time and the process was irregular. The SEM, Mr Zuma pointed out that a specific applicant must not be considered. It was also grossly unfair that a certain question was asked bout statistics. The score was only to be used as a guide and there was no consensus taken on the scores and the names were in order of preference.
3.2.16 Under cross-examination by the department he confirmed that he submitted a letter to the staff selection committee and declared a dispute with the GB who were literate and that the procedure manual was available and accessible to the GB. He did point out to the GB that he was unhappy with the interview process from the start. He also claimed that he did not sign the EC6 form (nomination form) to nominate Mr Govender but he did sing the nomination form fro Mr L S Chetty on 4 March 1998 and did record that a dispute was declared. He accepted that even though he declared a dispute he did not follow the procedures to declare a dispute correctly. He also accepted that no appointment could be made until a dispute was resolved.
3.2.17 Under cross-examination he confirmed that the questions were consistently asked and he testified that he was not sure. He was present when Mr Reddy was being interviewed and confirmed that Mr Reddy was the acting Deputy Principal, a member of SADTU and chairman of the Branch at the time of the interview and agreed that a specific question asked at the interview could have prejudiced Mr Reddy. He also claimed that he did communicate with the SEM verbally regarding his dispute and afterwards in writing. He also testified that he was aware of the procedures to lodge a dispute and knew how to declare a dispute. With reference to the ratification of the EC6, he testified that he was not informed.
3.2.18 Under re-examination Mr S S Pillay confirmed that there was no clear directive from SADTU regarding his dispute and that the Branch Chairman was a Mr Naidoo.
3.2.19 Another witness, Mr M Moonsamy stated he was also a co-opted member and was present at the dispute meeting and at conciliation. He confirmed that supersession was not applicable as the score was greater than 5 and that there were 3 options. He testified that there was majority agreement at the conciliation including his participation.
3.2.20 Under cross-examination he stated he was co-opted to the GB because of his concerns regarding the vested interests that existed at that time by certain GB members.
3.2.21 Witness, B Govender, admin clerk was present at the meeting but not at the ratification process. He was present at the conciliation and there were 3 options tabled and a decision was taken by the show of hands. He was led to believe that the higher score was the best. He also thought that the conciliator influenced the process.
3.2.22 Under cross-examination he confirmed that only the council signs the EC6 and he did not sign but was aware of the procedures manual and in terms of the procedures manual the next person in terms of preference was Mr Reddy to be nominated. He also testified that the conciliator had indicated at the conciliation why Mr Govender could not be appointed because of the 5 point score for supersession. He testified that they had to make a choice from the 3 options and also that the GB can nominate a person. The 3 options were considered on their own and thereafter it was a combined effort. The pupils and parents agreed to Mr Reddy’s nomination at the conciliation process. He confirmed that the decision at the end was a majority decision, 6:4 for Mr Reddy.
3.2.23 Another witness, Anita was co-opted member and was not presented at the ratification and heard about the dispute and the supersession. She came on board after there were irregularities regarding the supersession.
3.2.24 Under cross-examination she could not recall the date of the meeting and confirmed that she was co-opted by the staff after it was established that Mr P M Govender was the nephew of Mr P Govender, the Applicant. There was no-examination.
3.2.25 In closing the Applicant’s representative stated that there was a collective agreement and referred to Resolution 11 of 1997. The nomination of 17 May was not ratified and was ultra vires. Resolution 13 of 1995 made no mention of supersession. Mr Govender was nominated in terms of preference and there was a motivation for supersession. The scores were to only be used as a guide. The relief sought was that Mr Govender be appointed retrospective 1 August 1998. The HRM 20 of 1998 was in breach of a collective agreement and the Applicant had no sight of this circular. The SADTU observer stated that the scores were averaged and the averaging of scores went against the procedural manual. The scores should have been by consensus. The process was both procedurally and substantively flawed. At the conciliation the Applicant was absent and his rights and interest were affected and he ought to have been informed. Also the DRC were illegal creatures and only after an illegal creature intervened the nomination of Mr Reddy materialised.
3.2.26 The relief sought was that Mr Govender be appointed retrospective 1 August 1998.
4 . DEPARTMENT’S CONTENTION
4.1 The Department represented by Mr Jenkins stated that the Applicant lodged the dispute. The information requested by APEK was pertaining to records for the Umtalumi and Olwasini High Schools where supersession took place. This information was only requested after APEK presented their case. The department argued that Mr Govender was nominated and not appointed to the post. The department was party to the dispute resolution process via the ELRC and wished to resolve the dispute timeously. The information pertaining to the school had no relevance to this matter on hand. The Department was not hiding anything and was transparent.
4.2 Document “A” was the response tot he information being sought, letter of nomination. Document “B” was the scores for the post, which was as follows (8 nominations in order of preference).
Chetty 38; Reddy 41; Moodley 35; Naidoo 36; Sewnarain 36;
Govender 35; Ramdhun 34; Bagudhee 31.
4.3 It was argued that Mr Govender was the 6th person (35 points) on the list and reference was made to exhibit “D” where the Governing Body initially preferred Mr Govender with a score of 35 over Mr Reddy with a score of 41. The difference in their score was 6. This difference in score of greater than 5 points was in violation of the Procedures Manual which clearly states that the difference in score must be less than 5. This matter came through to the Dispute Resolution Committee (DRC) and it was established that the difference in score was greater than 5 and this was irregular.
4.4 Mr Jenkins referred to Exhibit “A” where the Governing Body was asked to adhere to the EC6 form in order of preference. Mr Chetty was placed elsewhere and the second preferred person was Mr Reddy and therefore Mr Govender could not supercede Mr Reddy, as Mr Reddy was the second preferred candidate.
4.5 It was argued that if the 1st person declined then reference must be made to the DRC to seek further advise and if supersession was to be considered then Mr Moodley could also be the person in terms of the supersession rules and this was applicable to Mr Moodley as well.
4.6 The Governing Body then responded in a letter dated 4 September 1998. On 7 September 1998 Mr Reddy was nominated for the post of Principal, Roseville Secondary School at a conciliation process and the chairperson of the Governing Body, Ms Tomlinson after conciliation process sanctioned this nomination. On 8 September 1998 she received the nomination signed by Mr Reddy accepting the post of Principalship, Roseville Secondary School.
4.7 The non-withdrawal of the first nomination to Mr Govender was the responsibility of the Governing Body and that was a matter between Mr Govender and the Governing Body.
4.8 The appointment was delayed due to the correspondence/dispute between Mr Govender and his lawyers. Mr Reddy then lodged a dispute regarding his non-appointment to the post, as he was the second preferred candidate on the EC6.
4.9 The Department in March 2000 conciliated the matter via the ELRC. It was agreed that the matter goes to conciliation via IMSSA. The dispute was between Mr Reddy and the Governing Body. The successful outcome of the conciliation process resulted in Mr Reddy being nominated to the post by the Governing Body and the dispute was successfully resolved. The settlement by majority vote was as follows :
4.9.1 Revoke all previous nominations.
4.9.2 Nominated/Ratify/Recommend Mr Reddy to the post of Principal, Roseville Secondary School.
4.9.3 Mandate the Department to appoint Mr Reddy to the post.
4.10 Mr Govender then took the matter to the Labour Court in April 2000 and the Labour Court ruled and interdicted the Department from appointing Mr Reddy until the dispute between Mr Govender and the Department was resolved.
4.11 APEK raised their concerns and why the person with 38 points was given 1st preference and why supersession occurred when the GB wants someone and the department responded that the GB contradicted the procedure manual in recommending P Govender. The Department also testified that Mr L S Chetty who was the 1st preferred candidate was not appointed as he was placed elsewhere at that pint in time and therefore Mr Reddy became the preferred candidate for the post. APEK also clarified why Mr Govender was not informed of the conciliation and the response was that the dispute was between Mr Reddy and the Governing Body and Mr Govender was not party to that dispute.
4.12 In closing the Department summarised that the nomination of Mr Govender was invalid and the process to nominate him was flawed. It was impossible to appoint Mr Govender if the process was flawed (supersession). With regards to the dispute process, S S Pillay under cross-examination confirmed that the process was fair and that Mr Reddy is the legitimate nominated person. The conciliation process was legal and the conciliation did not influence the parties to appoint Mr Reddy and Mr Reddy was nominated. Mr P M Govender was the nephew and the educator representative on the Governing Body and he failed to absent himself and there was an undue influence. Resolution 11 of 1997 was signed by APEK and APEK was party to this document as evident by their signature (documentary evidence submitted). The procedures manual of 1998 was in force and this manual outlined the process to be followed including supersession. The supersession of Mr Govender was a breach and it was the contention of the Department that there was no Unfair Labour Practice in the non-appointment of Mr Govender. The conciliation agreement revoked all previous nominations and was signed by all relevant stakeholders, which nominated Mr Reddy for the post. There was no expectation by Mr Govender to be a party to the conciliation. The Dispute Resolution Committee of 1998 was a valid body and at the time of the dispute was legitimate and was now dispensed off. The DRC 2000 s the new process. The expectation to be appointed by Mr Govender was not valid. The relief sought was the appointment of Mr Reddy to the date of the award and Mr Govender to compensate Mr Reddy.
4.13 The Department referred to the case law De Vires vs Western Cape Educational Department and another (12 December 1998) where the nomination was withdrawn and there was no legitimate expectation to be appointed. The court ruled that the final decision regarding appointment of candidates vested with the employing department and not the nomination committee. The nomination committee was confined to ranking candidates. There was no basis for concluding that the Applicant enjoyed a right to be appointed after having been nominated, even where the nomination procedure was lawful as was assumed to be so in the case and application was dismissed with costs.
5 . SADTU’s CONTENTION
5.1 SADTU argued that the process was fair up to the point of the EC6 forms were submitted. The Selection committee comprising 3 members of the GB were appointed and submitted an EC6 form that was irregular as the person nominated were as follows : Govender 35 points; Reddy 41 points, Chetty 38 points, Moodley 35 points; J Naidoo 36 points; Sewnarain 36 points; Ramdhun 34 points. This was in order of preference. The difference in score between the nominated candidate and the person nominated second was greater than 5 points. Where a candidate with a lower score is preferred over a candidate with a higher score, the following factors must be strictly observed :
5.1.1 the difference in score must not be greater than 5 points.
5.1.2 Sound reasons must be advanced for such supersession.
5.1.3 There must be sufficient evidence recorded in the EC4 of the affected candidates to justify such a decision.
5.1.4 Factors amongst others that could be advanced for supersession are gender balance and demographic representativity.
5.2 The nomination of Mr Govender was contrary tot he rules governing supersession and this nomination was therefore not valid and the reasons for the motivation were not educationally sound and discriminatory in nature. It was noted that there was an improper influence by the SEM, Mr S M Zuma, who was the Department’s representative at the interview process who also wrongfully advised that the nomination go ahead and a motivation be done bo appoint Mr Govender as the preferred candidate.
5.3 It was also argued that Mr Reddy had a right to the post of principalship after having accepted a nomination for principalship at Sezela Primary, as this was a post level 3 principalship. The rules (Clause 3.1) governing this states that “an applicant may only accept one nomination at a particular level e.g. Principal P3 this means that it an applicant accepted a principalship level 3 away from his home by August 1998, he cannot accept another post level 3 post later nearer home.” Clause 3.2 “an applicant may however, having accepted a post of lower level, P3, may later accept a post at a higher level, say principal P4".
5.4 The Governing Body then agreed to a conciliation process to appoint a principal, which then nominated Mr Reddy.
5.5 Witness, Mr R Sawathien, the regional SADTU treasurer, testified that he was a teacher rep at the conciliation process and he was mandated by the teachers to appoint a principal for Roseville Secondary School. He testified that the conciliator, Mr Rajah Naidoo explained the process in expediting the appointment. The GB had 3 options and the power to appoint a principal. The 3 options were :
5.5.1 Appoint the correct principal according to the procedure manual.
5.5.2 Arbitrate the matter.
5.5.3 Allow 21 days to lapse and allow the State to appoint the principal.
5.6 The witness testified that the names and their scores were listed on the board by the conciliator as follows :
5.6.1 P Govender 35; K Reddy 41; L S Chetty 38; J Naidoo 36; Moodley 35.
5.6.2 He also testified that the conciliator did not ask the GB to appoint Mr Reddy. The issue at hand was the supersession clause and Mr Govender was not appointable.
5.6.3 The persons nominated in order of preference were L S Chetty/Reddy/Naidoo. They were all eligible. The choice to appoint was by the GB whilst the conciliator went outside. The discussions with the GB took about 15-20 minutes to agree on the person to be appointed. The persons present a the discussions were Messrs Mbule, Tomlison, Khan, Ramiah and Govender. It was claimed that the conciliator remained in the room whilst the GB went outside to caucus and arrive at a decision.
5.6.4 The chairperson, Ms Tomlinson agreed that they wished to appoint Mr Reddy to the post. The Learners as well as the staff representatives supported this decision. There was consensus between the 3 stakeholder teams at the conciliation. There was a written document/statement from the Governing Body who wrote a declaration, which was typed and signed by all parties present. At no time was the document prepared by the conciliator.
5.7 Under cross-examination by APEK the witness stated that the was not a member of the GB but a staff representative and that he replaced Mr P M Govender whom was the nephew of Mr P Govender. He stated that he participated at the conciliation and he was not an elected member but asked to be the staff representative who democratically elected him to represent the staff at the conciliation process. He also testified that the Governing Body signed the document nominating Mr Reddy to the post.
5.8 Under cross-examination by the department the witness testified that Mr P M Govender only stepped down at the conciliation process and was party to the full interview process. He only stepped down after the dispute was lodged. The witness was not able to answer whether Mr P M Govender was present at the interview stages, as he only became involved at the conciliation. He also stated that the conciliation process did not use any force and that they were not under any duress. The decision to appoint was the decision of the Governing Body. There were 5 parents present and there was no duress to appoint Mr Reddy. As the staff observer he answered that the conciliation process was fair and again claimed that the staff elected him and Mr Moonsamy as the staff representatives to ensure the fair appointment of the principal.
5.9 In closing SADTU summarized as follows : The interview process was fair until the EC6 was submitted (supersession); the selection committee submitted a nomination with a supersession clause for a candidate with a score of greater than 5 point score. This was contrary to the procedure manual and does not qualify the candidate, Mr Govender. The reasons submitted as motivation for the supersession clause were discriminatory and were not credible justification. The Governing Body also overlooked the supersession of 3 other candidates who qualified as well. This was discriminatory.
5.10 Mr L S Chetty accepted a post elsewhere and therefore in accordance to EC7 the next candidate to be appointed was Mr Reddy in terms of the preference list (EC6). The Governing Body and SADTU agreed to a dispute resolution mechanism namely, conciliation to resolve the dispute submitted by Mr Reddy as he was the person to be appointed in accordance to the preference list and his scores. This was done and Mr Reddy was successfully nominated by the Governing Body. SADTU also agreed with APEK that the DRC was ultra vires. However, this did not alter the decision of the irregular nomination and the conciliation agreement signed between the Governing Body, staff representatives and the Learners in nominating Mr Reddy.
5.11 The relief sought was that the Department appoints Mr Reddy retrospectively to March 2000, date of the conciliation nomination as the Department withheld the appointment pending the outcome of the dispute between Mr P Govender and the Department.
6 . ANALYSIS OF EVIDENCE & ARGUMENT
6.1 As stated above, my terms of reference allow me to make a finding if I am satisfied that there was any unfair conduct by the Department relating to the Applicant, Mr Govender.
6.2 I will address both the substantive and procedural fairness/unfairness of the non-appointment of Mr Govender. Mr Govender had good intentions in trying to secure his promotion based on the nomination that was rejected by the Department.
6.3 I refer to the scores itself and the EC6 and the ranked preference that was in contention. The question to be asked is whether the scores reflected on the EC6 form submitted by the Department was the legitimate EC6. The scores on this EC6 were most definitely not average scores as per the exhibit but total scores or consensus scores as was evident on the EC6 submitted as documentary evidence by the Department. I now refer to the table under the Unions contentions, which clearly spells out the average scores. I most definitely agree with and accept APEK’s arguments that the difference in the average scores is 5 points. This was also the testimony of the SADTU witness. However, it is regretful that the average scores were not reflected on the EC6 even though the method of arriving at the total scores were by averaging and then arriving at a total score and APEK rightfully points out this difference. However APEK failed to acknowledge the 6-point difference in the total score and was silent on this matter. The candidates were then ranked in acknowledge the 6-point difference in the total scores, which was unfortunate. If the average scores were documented on the EC6 then the matter would been looked at differently and the supersession clause may have been applicable. If the panel wished to submit average scores then those scores were never reflected on the EC6 as average scores but as consensus scores. I take the view that the scores reflected on the EC6 were consensus scores in accordance with the Targeted Selection Interviewing Methodology, which the Department subscribed to. The methodology used was averaging the scores first and then recording their total scores. These average scores then became a score that was now a consensus score by the very fact that it was recorded not as an average score. If I am to accept APEK’s arguments that the scores were averaged then the average score should have been reflected on the EC6. This was not the case. The scores on the EC6 submitted as documentary evidence reflects a score, which to my mind is a consensus score. The scores may have been averaged at the interview process; however, when recorded the very same average scores were recorded as a consensus score. I am therefore satisfied with the scores on the EC6 that they were not recorded as average scores and therefore there is a clear 6-point difference where the supersession does not apply.
6.4 I now refer to the validity of the nomination process whereby the nephew of the Applicant was a member of the Governing Body who nominated Mr Govender, the uncle of the GB member. This member failed to recluse himself from the panel to ensure fairness in the selection of the principal for Roseville Secondary School. I am also surprised that the Applicant himself failed to disclose that the Governing Body panel member was his nephew. Therefore both the Applicant, Mr Govender and the GB panel member failed to disclose this fact and therefore this nomination process was flawed as the Department rightfully points out. The validity of this nomination is also questionable on this ground apart from the supersession irregularity.
6.5 With regard to the supersession clause I am inclined to accept the argument of the Department where it was stated that there is clearly a 6-point difference in the scores and therefore this was a breach of the rules governing supersession. APEK rightfully points out that the score is only a guide to be used. I agree with this. However, the decision to appoint uses these very scores to rank the candidates in order of preference. I do not believe that Mr Govender qualified for the supersession clause based on the 5 point difference in the method of averaging the scores according to their calculations and the testimony of their witness. The average scores are not reflected on the EC6, which was the document submitted to the Department for appointment.
6.6 I have considered the submission of the EC6 forms. There were 2 exhibits submitted by APEK and one EC6 by the Department and SADTU. The EC6 with Mr Govender as the preferred first ranked candidate with 35 points and Mr Reddy was the second preferred candidate with 41 points was rejected by the Department based on the irregular supersession clause and this was then followed by another EC6 with Mr Chetty as the first preferred, ranked candidate and Mr Reddy the second preferred ranked candidate. Mr Chetty was no longer eligible for the post as he was appointed elsewhere and the next candidate on the list was Mr Reddy who automatically became the eligible candidate for appointment. This appointment never materialised due to the 2 disputes lodged by both Mr Reddy and Mr Govender and the court interdict which I accept.
6.7 I now refer to the conciliation process. I accept the Department’s arguments that the conciliation process was a legitimate dispute resolution mechanism to expedite the appointment the principal to this post. I also am sympathetic with the Applicant regarding this conciliation which he was not aware of or not invited to. However, this dispute that was conciliated was between Mr Reddy and the Governing Body where the learners and the staff representatives were present. This process legitimately nominated Mr Reddy which was well documented and signed for by all relevant stakeholders as per the conciliation agreement submitted as documentary evidence.
6.8 With reference to the biasness and undue pressure and influence on the parties to appoint Mr Reddy my view is that the evidence presented by certain witnesses were corroborated. I accept Mr Govender’s evidence and he was credible. He did however admit to going directly through to his layers with 2-3 weeks of raising his dispute with SADTU. He also believed that the Department was jointly responsible with the Governing Body for his nomination and not the Governing Body on it’s own as the Department argued. I am inclined to believe that the Governing Body is responsible in terms of the procedures in place for the nomination and the appointment of the candidate vested with the Department. The DRC or the “illegal creatures” as APEK points out, were in place at that point in time and rightfully rejected the nomination where there was a 6 point difference which was wrongfully advised and motivation requested for by the Department’s SEM, Mr Zuma. This was then remedied with the second EC6 nominating Mr Chetty as the first preferred candidate and Mr Reddy as the second candidate who was then legitimately finalised at the conciliation whereby Mr Reddy was successfully nominated.
6.9 I now refer to the reliability and credibility of the 7 witnesses. Mr H Khan tended to have memory lapses as and when it suited him. I do acknowledge that the matter was some 2 years old and there maybe a tendency to forget detail. I do not accept that he was forced into the decision to nominate Mr Reddy to the post as he looked of strong character and of a sound mind when he testified. I therefore find it difficult to accept his evidence. He also was a signatory to the conciliation agreement that was submitted as documentary evidence. He also presented contradictory evidence when cross examined by both SADTU and Mr Jenkins and was not a reliable witness.
6.10 Mr S S Pillay was reliable and testified that the process was irregular with the scores being averaged and his dispute was not addressed. As a Union observer he failed in his duties to pursue his objections. The presence of Union observers at these processes is simply to ensure that fairness prevails at all times. He did however note his objections on the EC6 and followed this through with an undated letter in writing, which was supposedly faxed, but no records evident. He also accepted that the was aware of the dispute procedures as a Unionist.
6.11 There were 2 witnesses who were co-opted members elected by the staff as staff representatives that came on board after it was established that Mr P M Govender, a GB member was the nephew of Mr Govender. Both Anita and B Govender confirmed that they were present at the conciliation. Mr B Govender believed that the conciliator influenced the conciliation process to nominate Mr Reddy and I am very doubtful about their evidence and it is highly probable that their evidence is corroborated to discredit the process and the candidate nominated. Mr M Moonsamy did however accept that there was a majority agreement to appoint Mr Reddy and this also included his participation in the nomination.
6.12 The evidence of Mr R Sawathien, a teacher representative was mandated to attend the conciliation process and testified that the process was fair and that there were 3 options available to them and the Governing Body nominated Mr Reddy which then resulted in the learners, staff representatives and the GB agreed to the nomination with a vote of 6:4 in favour of Mr Reddy.
6.13 Having considered the evidence of 8 witnesses who primarily were involved with the conciliation process, I am satisfied that the conciliation was fair and the majority agreed to Mr Reddy as the principal and all the stakeholders, 5 parents (GB) including the chairperson of the GB, Ms Tomlinson, 2 staff representatives and the learners signed the conciliation agreement drawn up by themselves on 8 March 2000.
6.14 With reference to the information required after APEK presented their case regarding the supersession for 2 other schools. This information was not required prior to the hearing and the Department was not in a possession to table this information as required and responded that it was not relevant which I do not believe.
6.15 I do not accept the Department’s arguments that the nomination is the sole responsibility of the Governing Body alone. I agree the GB is tasked with this and it is their responsibility to nominate, however, the Department’s representative is present in an advisory role with Union observers to ensure fairness and this did not happen which subsequently resulted in 2 disputes for the same post. Had the supersession clause been properly applied in the first place then there would not have been all the controversy regarding this appointment.
6.16 With reference to the non-withdrawal of the first nomination to Mr Govender, I accept that this could not have happened as there was a court interdict that required Mr Govender’s dispute to be settled and therefore the Department was not in a position to withdraw his nomination. His nomination was a serious infringement of the procedures applicable to promotion and supersession. This then delayed the appointment of Mr Reddy pending the outcome of this dispute.
6.17 I accept the Department’s arguments that the Applicant, Mr Govender was placed 6th in terms of his scores and did not qualify in terms of supersession or the motivation which stated that he was the acting principal, resides in the areas and was well liked which I agree were not sound reasons and could be perceived to be discriminatory as well as there were 3 other applicants who also qualified for supersession in terms of their scores.
6.18 After considering all the evidence put before me at the arbitration I am satisfied that there is no need to redo the process as was suggested by the one witness which was also declined at the conciliation. Mr Govender cannot be appoint to the post and Mr Reddy appointed to the post.
7 . AWARD
It is my award :
7.1 That the Department did not act unfairly in the non-appointment of Mr Govender to the Post of Roseville Secondary School. There is no Unfair Labour Practice by the Department.
7.2 The Department appoint Mr Reddy retrospective 1 April 2000 to the post of Principal, Roseville Secondary School in accordance with the Conciliation Agreement.
7.3 The Department officially withdraws the nomination to Mr P Govender in writing.
7.4 There is not order as to costs.
_______________________
ARBITRATOR
J KALIDEEN
Date : 30 June 2001
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 248 KZN
APPLICANT P GOVENDER
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR J KALIDEEN
DATE OF ARBITRATION 14 MAY + 12 JUNE 2000
VENUE DURBAN
REPRESENTATION:
APPLICANT MR G MAHARAJ
RESPONDENT MR P J JENKINS
AWARD:
1 That the Department did not act unfairly in the non-appointment of Mr Govender to the Post of Roseville Secondary School. There is no Unfair Labour Practice by the Department.
2 The Department appoint Mr Reddy retrospective 1 April 2000 to the post of Principal, Roseville Secondary School in accordance with the Conciliation Agreement.
3 The Department officially withdraws the nomination to Mr P Govender in writing.
4 There is not order as to costs.
DATE OF AWARD 30 JUNE 2001
Province: KwaZulu-Natal
Applicant: P GOVENDER
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: DURBAN
Award Date: 30 June 2000
Arbitrator: J KALIDEEN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 248 KZN
In the arbitration between:
P GOVENDER APPLICANT
and
DEPARTMENT OF EDUCATIONKWAZULU-NATAL RESPONDENT
ARBITRATION AWARD
PARTIES PRESENT : Applicant represented by Mr G Maharaj from APEK
Respondent represented by Mr P J Jenkins
Assisted by Mr S E Mdletshe and Messrs
Ramcheron and R R Ramdin from SADTU
DATE : 14 May / 12 June (2 days)
VENUE : Port Shepstone
1 . THE ISSUE IN DISPUTE
Unfair Labour Practice : The unfair conduct of the Department relating to the non appointment of Mr P Govender to post of Principal of Roseville Secondary School.
2 . TERMS OF REFERENCE & POWERS
2.1 The arbitration was conducted in terms of an agreement reaching between the Applicant represented by Mr G Maharaj, APEK and the Department of Education, Mr Jenkins, after an unsuccessful conciliation process.
2.2 I am required to determine, based on the evidence presented in the arbitration :
2.2.1 There is a fair cause to make a finding of an Unfair Labour Practice.
2.2.2 What sanction or remedy is fair.
2.2.3 Whether the employee had a fair opportunity to state his case.
2.3 As arbitrator, I am empowered to make an award, which I deem appropriate and with due regard, to fairness. The parties agree that this award will be final and binding on them.
2.4 It is not the intention to document a full record but a summary only of the proceedings.
2.5 I am grateful to all parties for their assistance and the manner in which the Representatives presented their arguments. All parties handed in documentary evidence at the arbitration. 1 witness testified for SADTU, 7 witnesses for the Applicant and no witnesses for the Department.
2.6 The Point in Limine raised by SADTU was taken into cognizance. SADTU placed on record that the dispute around the Principalship of Roseville was resolved at conciliation. The arbitrator then noted that this dispute was a fresh dispute between Mr Govender and the Department on the non-appointment of Mr Govender to the post of Principal, Roseville Secondary and the department was bound to resolve this dispute. This no doubt had a bearing on the nomination of Mr Reddy to the post, which was resolved at another dispute, namely conciliation on 8 Marsh 2000. The dispute between Mr Reddy and the Department was another dispute on the non-appointment of Mr Reddy to the post of Principal Roseville Secondary that was settled. These were 2 separate disputes for the same post by 2 different applicants.
2.7 SADTU’s presence at the arbitration was in accordance to the CCMA rules governing at Joinder and SADTU was also a party at the conciliation of this dispute.
3 . EVIDENCE & ARGUMENT
3.1 Background
The dispute was centered on the non-appointment of the Applicant and the following was alleged :
3.1.1 The Department failed to appoint Mr Govender to the post of Principal and this constituted an Unfair Labour Practice and the Applicant was prejudiced at various stages in the process and such prejudice affected his chances of being appointed.
3.2 Applicant’s Contention
3.2.1 The Applicant’s representative, Mr George Maharaj based his arguments on 3 grounds, namely:
3.2.1.1 Prejudice suffered by the Applicant at the nomination stage;
3.2.1.2 Prejudice suffered by the Applicant at the interview stage;
3.2.1.3 Prejudice suffered by the Applicant at the dispute stage.
3.2.2 He argued that the selection committee submitted two EC6 forms (Exhibit page 80 & 89) dated 4 March 1998 and the other was undated. The Governing Body ratified the one-dated 4 Marsh 1998 and the other was not ratified. Mr Govender was nominated by the Governing Body, which was chaired by Ms R F Tomlinson, on 12 June 1998, and accepted by Mr Govender on 17 June 1998. On 23 June 1998 Mr Govender received a further nomination as Deputy Principal of Umkomaas Secondary which he rejected.
3.2.3 On 7 September 1998 the same Governing Body nominated Mr Reddy to the post of Principal, Roseville Secondary School. This nomination was not ratified by the GB and could not have been made without first withdrawing the nomination to Mr Govender. Mr Reddy also accepted a previous nomination, Principal of Sezela Primary School. He also accepted the nomination to Rosevile Secondary School.
3.2.4 The union then argued that the Applicant was prejudiced at the interview stage. The scores were averaged instead of arriving at a consensus score. The Applicant or non-application of the supersession clause also prejudiced the Applicant in not being appointed to the post. The scores were averaged at the interview process. There was a difference of 5 points between the average score of Mr Govender who scored 34.75 and Mr Reddy who scored 39.75.
3.2.5 It was argued by the Applicant’s representative that the Applicant was not successful as the nominated candidate as the difference in score of 6 points in the final score disqualified him from benefiting from supersession clause. Reaching a final score by consensus was mandatory and this was not followed as the scores were averaged. The Management representative at the interview process, Mr S M Zuma advised the Governing Body to submit a motivation for Mr Govender for supersession and this was done. It was also argued that the Applicant who had acted in the post was the only Applicant with the relevant experience.
3.2.6 The Union then focussed its argument on the prejudice suffered at the dispute stage. The SADTU observer, Mr S S Pillay objected to the averaging of the scores and declared a dispute in the form of a letter, which was undated. It was argued that the Dispute Resolution Committees had been declared Ultra Vires and whatever decisions they had taken were null and void. Thereafter the dispute was referred to the ELRC for resolution. A conciliation agreement was reached between the Department and SADTU whereby Mr Reddy was then nominated to the post of Principal. It was argued that neither Mr Govender nor his Union was informed of this process or the dispute. The conciliator presented the parties with 3 options and the conciliator was intimidatory and biassed in his approach and had pre-judged the outcome. The options were arbitration; nominate Mr Reddy; or if the Governing Body was not capable of performing this function, a ruling could be made regarding this appointment by the State.
3.2.7 The Applicant (Mr P Govender) testified as a witness. He was a level 2 educator at that time, testified that he accepted the nomination for the post of principal (level 4), Roseville Secondary School and declined the post of Umkomaas Secondary deputy principal post (level 3). He was not aware of the conciliation and was not informed by the department but heard about the conciliation process that took place. He was not aware of what happened at the conciliation.
3.2.8 Under cross-examination Mr Govender confirmed that it was the responsibility of the Department and the Governing Body regarding his nomination, and firmly stated that the Department had a responsibility with due regard to the nominations submitted by the Governing Body for the same post.
3.2.9 Mr Govender confirmed that he referred his own dispute to his lawyer after not having heard from his Union, SADTU. He was unable to inform the arbitration on the time frames from the time he referred his dispute to SADTU and then through to his lawyer. He then confirmed that it was about 2-3 weeks time delay only before he went directly to his lawyer. His lawyer was unable to indicate the status of Govender’s dispute.
3.2.10 Under re-examination Mr Govender stated he did not receive a copy of the circular.
3.2.11 Another witness, Mr H Khan, confirmed that he was a Governing Body member after the selection had taken place. He was only involved at the conciliation process. He testified that a certain attorney, Mr Rajah Naidoo, informed them that if there is a difference of 5 points, the person with the lower score drops off. He also claimed that he informed Mr Rajah Naidoo that the people who took the decision were not notified about the scoring and also asked why the process could not be redone. He was then told that he must forget about Mr Govender and talk about Mr Reddy. He claimed that he was forced to accept Reddy because of the point difference. He was disappointed that the decision of the GB was rejected.
3.2.12 Under cross-examination he testified that he was a co-opted member of the GB with no voting rights. He was also not aware of the procedures manual regarding the selection process when Mr Rajah Naidoo referred to the manual. He claimed that he had no option but to accept and sign the nomination of Mr Reddy at the conciliation process. He also testified that he had no problem with the procedure followed at the conciliation.
3.2.13 Under cross-examination he confirmed that he was only involved at the conciliation. He confirmed the process followed at the conciliation. The conciliator put up the steps to be followed on the board, explained the procedures, asked to follow the procedures and that was the process of the conciliation. The scores of all the candidates were put up and if the difference in scores was greater than 5 then those persons were not to be considered in terms of the procedures manual (supersession). Mr Khan was not sure if the EC6 was referred to or the number of options that the conciliator tabled. He also claimed that this was a dispute and may end up in court. He also claimed that there were mixed feelings within the GB regarding the nomination of Mr Reddy and he had no option but to sign. He also testified that they were not asked to sign and they signed. He also could not remember whether the conciliator asked them to talk about the decision of nominating Mr Reddy. He also could not remember what they spoke about when the conciliator left the members to discuss their decision to nominate. He also could not recall what the decision of the Governing Body was at that time. He did confirm that the decision taken by the GB was that Mr Reddy should be the principal and that this decision was recorded. He also confirmed that the conciliator did not ask them to go with any particular person but simply to follow the rules and that was what was followed by the GB at the conciliation.
3.2.14 Under cross-examination, Mr Khan stated that the procedures were followed and that the conciliator did mention that the case can go to court and there was a dispute from both sided.
3.2.15 Another witness, Mr S S Pillay, confirmed that the was a SADTU observer at that time and the process was irregular. The SEM, Mr Zuma pointed out that a specific applicant must not be considered. It was also grossly unfair that a certain question was asked bout statistics. The score was only to be used as a guide and there was no consensus taken on the scores and the names were in order of preference.
3.2.16 Under cross-examination by the department he confirmed that he submitted a letter to the staff selection committee and declared a dispute with the GB who were literate and that the procedure manual was available and accessible to the GB. He did point out to the GB that he was unhappy with the interview process from the start. He also claimed that he did not sign the EC6 form (nomination form) to nominate Mr Govender but he did sing the nomination form fro Mr L S Chetty on 4 March 1998 and did record that a dispute was declared. He accepted that even though he declared a dispute he did not follow the procedures to declare a dispute correctly. He also accepted that no appointment could be made until a dispute was resolved.
3.2.17 Under cross-examination he confirmed that the questions were consistently asked and he testified that he was not sure. He was present when Mr Reddy was being interviewed and confirmed that Mr Reddy was the acting Deputy Principal, a member of SADTU and chairman of the Branch at the time of the interview and agreed that a specific question asked at the interview could have prejudiced Mr Reddy. He also claimed that he did communicate with the SEM verbally regarding his dispute and afterwards in writing. He also testified that he was aware of the procedures to lodge a dispute and knew how to declare a dispute. With reference to the ratification of the EC6, he testified that he was not informed.
3.2.18 Under re-examination Mr S S Pillay confirmed that there was no clear directive from SADTU regarding his dispute and that the Branch Chairman was a Mr Naidoo.
3.2.19 Another witness, Mr M Moonsamy stated he was also a co-opted member and was present at the dispute meeting and at conciliation. He confirmed that supersession was not applicable as the score was greater than 5 and that there were 3 options. He testified that there was majority agreement at the conciliation including his participation.
3.2.20 Under cross-examination he stated he was co-opted to the GB because of his concerns regarding the vested interests that existed at that time by certain GB members.
3.2.21 Witness, B Govender, admin clerk was present at the meeting but not at the ratification process. He was present at the conciliation and there were 3 options tabled and a decision was taken by the show of hands. He was led to believe that the higher score was the best. He also thought that the conciliator influenced the process.
3.2.22 Under cross-examination he confirmed that only the council signs the EC6 and he did not sign but was aware of the procedures manual and in terms of the procedures manual the next person in terms of preference was Mr Reddy to be nominated. He also testified that the conciliator had indicated at the conciliation why Mr Govender could not be appointed because of the 5 point score for supersession. He testified that they had to make a choice from the 3 options and also that the GB can nominate a person. The 3 options were considered on their own and thereafter it was a combined effort. The pupils and parents agreed to Mr Reddy’s nomination at the conciliation process. He confirmed that the decision at the end was a majority decision, 6:4 for Mr Reddy.
3.2.23 Another witness, Anita was co-opted member and was not presented at the ratification and heard about the dispute and the supersession. She came on board after there were irregularities regarding the supersession.
3.2.24 Under cross-examination she could not recall the date of the meeting and confirmed that she was co-opted by the staff after it was established that Mr P M Govender was the nephew of Mr P Govender, the Applicant. There was no-examination.
3.2.25 In closing the Applicant’s representative stated that there was a collective agreement and referred to Resolution 11 of 1997. The nomination of 17 May was not ratified and was ultra vires. Resolution 13 of 1995 made no mention of supersession. Mr Govender was nominated in terms of preference and there was a motivation for supersession. The scores were to only be used as a guide. The relief sought was that Mr Govender be appointed retrospective 1 August 1998. The HRM 20 of 1998 was in breach of a collective agreement and the Applicant had no sight of this circular. The SADTU observer stated that the scores were averaged and the averaging of scores went against the procedural manual. The scores should have been by consensus. The process was both procedurally and substantively flawed. At the conciliation the Applicant was absent and his rights and interest were affected and he ought to have been informed. Also the DRC were illegal creatures and only after an illegal creature intervened the nomination of Mr Reddy materialised.
3.2.26 The relief sought was that Mr Govender be appointed retrospective 1 August 1998.
4 . DEPARTMENT’S CONTENTION
4.1 The Department represented by Mr Jenkins stated that the Applicant lodged the dispute. The information requested by APEK was pertaining to records for the Umtalumi and Olwasini High Schools where supersession took place. This information was only requested after APEK presented their case. The department argued that Mr Govender was nominated and not appointed to the post. The department was party to the dispute resolution process via the ELRC and wished to resolve the dispute timeously. The information pertaining to the school had no relevance to this matter on hand. The Department was not hiding anything and was transparent.
4.2 Document “A” was the response tot he information being sought, letter of nomination. Document “B” was the scores for the post, which was as follows (8 nominations in order of preference).
Chetty 38; Reddy 41; Moodley 35; Naidoo 36; Sewnarain 36;
Govender 35; Ramdhun 34; Bagudhee 31.
4.3 It was argued that Mr Govender was the 6th person (35 points) on the list and reference was made to exhibit “D” where the Governing Body initially preferred Mr Govender with a score of 35 over Mr Reddy with a score of 41. The difference in their score was 6. This difference in score of greater than 5 points was in violation of the Procedures Manual which clearly states that the difference in score must be less than 5. This matter came through to the Dispute Resolution Committee (DRC) and it was established that the difference in score was greater than 5 and this was irregular.
4.4 Mr Jenkins referred to Exhibit “A” where the Governing Body was asked to adhere to the EC6 form in order of preference. Mr Chetty was placed elsewhere and the second preferred person was Mr Reddy and therefore Mr Govender could not supercede Mr Reddy, as Mr Reddy was the second preferred candidate.
4.5 It was argued that if the 1st person declined then reference must be made to the DRC to seek further advise and if supersession was to be considered then Mr Moodley could also be the person in terms of the supersession rules and this was applicable to Mr Moodley as well.
4.6 The Governing Body then responded in a letter dated 4 September 1998. On 7 September 1998 Mr Reddy was nominated for the post of Principal, Roseville Secondary School at a conciliation process and the chairperson of the Governing Body, Ms Tomlinson after conciliation process sanctioned this nomination. On 8 September 1998 she received the nomination signed by Mr Reddy accepting the post of Principalship, Roseville Secondary School.
4.7 The non-withdrawal of the first nomination to Mr Govender was the responsibility of the Governing Body and that was a matter between Mr Govender and the Governing Body.
4.8 The appointment was delayed due to the correspondence/dispute between Mr Govender and his lawyers. Mr Reddy then lodged a dispute regarding his non-appointment to the post, as he was the second preferred candidate on the EC6.
4.9 The Department in March 2000 conciliated the matter via the ELRC. It was agreed that the matter goes to conciliation via IMSSA. The dispute was between Mr Reddy and the Governing Body. The successful outcome of the conciliation process resulted in Mr Reddy being nominated to the post by the Governing Body and the dispute was successfully resolved. The settlement by majority vote was as follows :
4.9.1 Revoke all previous nominations.
4.9.2 Nominated/Ratify/Recommend Mr Reddy to the post of Principal, Roseville Secondary School.
4.9.3 Mandate the Department to appoint Mr Reddy to the post.
4.10 Mr Govender then took the matter to the Labour Court in April 2000 and the Labour Court ruled and interdicted the Department from appointing Mr Reddy until the dispute between Mr Govender and the Department was resolved.
4.11 APEK raised their concerns and why the person with 38 points was given 1st preference and why supersession occurred when the GB wants someone and the department responded that the GB contradicted the procedure manual in recommending P Govender. The Department also testified that Mr L S Chetty who was the 1st preferred candidate was not appointed as he was placed elsewhere at that pint in time and therefore Mr Reddy became the preferred candidate for the post. APEK also clarified why Mr Govender was not informed of the conciliation and the response was that the dispute was between Mr Reddy and the Governing Body and Mr Govender was not party to that dispute.
4.12 In closing the Department summarised that the nomination of Mr Govender was invalid and the process to nominate him was flawed. It was impossible to appoint Mr Govender if the process was flawed (supersession). With regards to the dispute process, S S Pillay under cross-examination confirmed that the process was fair and that Mr Reddy is the legitimate nominated person. The conciliation process was legal and the conciliation did not influence the parties to appoint Mr Reddy and Mr Reddy was nominated. Mr P M Govender was the nephew and the educator representative on the Governing Body and he failed to absent himself and there was an undue influence. Resolution 11 of 1997 was signed by APEK and APEK was party to this document as evident by their signature (documentary evidence submitted). The procedures manual of 1998 was in force and this manual outlined the process to be followed including supersession. The supersession of Mr Govender was a breach and it was the contention of the Department that there was no Unfair Labour Practice in the non-appointment of Mr Govender. The conciliation agreement revoked all previous nominations and was signed by all relevant stakeholders, which nominated Mr Reddy for the post. There was no expectation by Mr Govender to be a party to the conciliation. The Dispute Resolution Committee of 1998 was a valid body and at the time of the dispute was legitimate and was now dispensed off. The DRC 2000 s the new process. The expectation to be appointed by Mr Govender was not valid. The relief sought was the appointment of Mr Reddy to the date of the award and Mr Govender to compensate Mr Reddy.
4.13 The Department referred to the case law De Vires vs Western Cape Educational Department and another (12 December 1998) where the nomination was withdrawn and there was no legitimate expectation to be appointed. The court ruled that the final decision regarding appointment of candidates vested with the employing department and not the nomination committee. The nomination committee was confined to ranking candidates. There was no basis for concluding that the Applicant enjoyed a right to be appointed after having been nominated, even where the nomination procedure was lawful as was assumed to be so in the case and application was dismissed with costs.
5 . SADTU’s CONTENTION
5.1 SADTU argued that the process was fair up to the point of the EC6 forms were submitted. The Selection committee comprising 3 members of the GB were appointed and submitted an EC6 form that was irregular as the person nominated were as follows : Govender 35 points; Reddy 41 points, Chetty 38 points, Moodley 35 points; J Naidoo 36 points; Sewnarain 36 points; Ramdhun 34 points. This was in order of preference. The difference in score between the nominated candidate and the person nominated second was greater than 5 points. Where a candidate with a lower score is preferred over a candidate with a higher score, the following factors must be strictly observed :
5.1.1 the difference in score must not be greater than 5 points.
5.1.2 Sound reasons must be advanced for such supersession.
5.1.3 There must be sufficient evidence recorded in the EC4 of the affected candidates to justify such a decision.
5.1.4 Factors amongst others that could be advanced for supersession are gender balance and demographic representativity.
5.2 The nomination of Mr Govender was contrary tot he rules governing supersession and this nomination was therefore not valid and the reasons for the motivation were not educationally sound and discriminatory in nature. It was noted that there was an improper influence by the SEM, Mr S M Zuma, who was the Department’s representative at the interview process who also wrongfully advised that the nomination go ahead and a motivation be done bo appoint Mr Govender as the preferred candidate.
5.3 It was also argued that Mr Reddy had a right to the post of principalship after having accepted a nomination for principalship at Sezela Primary, as this was a post level 3 principalship. The rules (Clause 3.1) governing this states that “an applicant may only accept one nomination at a particular level e.g. Principal P3 this means that it an applicant accepted a principalship level 3 away from his home by August 1998, he cannot accept another post level 3 post later nearer home.” Clause 3.2 “an applicant may however, having accepted a post of lower level, P3, may later accept a post at a higher level, say principal P4".
5.4 The Governing Body then agreed to a conciliation process to appoint a principal, which then nominated Mr Reddy.
5.5 Witness, Mr R Sawathien, the regional SADTU treasurer, testified that he was a teacher rep at the conciliation process and he was mandated by the teachers to appoint a principal for Roseville Secondary School. He testified that the conciliator, Mr Rajah Naidoo explained the process in expediting the appointment. The GB had 3 options and the power to appoint a principal. The 3 options were :
5.5.1 Appoint the correct principal according to the procedure manual.
5.5.2 Arbitrate the matter.
5.5.3 Allow 21 days to lapse and allow the State to appoint the principal.
5.6 The witness testified that the names and their scores were listed on the board by the conciliator as follows :
5.6.1 P Govender 35; K Reddy 41; L S Chetty 38; J Naidoo 36; Moodley 35.
5.6.2 He also testified that the conciliator did not ask the GB to appoint Mr Reddy. The issue at hand was the supersession clause and Mr Govender was not appointable.
5.6.3 The persons nominated in order of preference were L S Chetty/Reddy/Naidoo. They were all eligible. The choice to appoint was by the GB whilst the conciliator went outside. The discussions with the GB took about 15-20 minutes to agree on the person to be appointed. The persons present a the discussions were Messrs Mbule, Tomlison, Khan, Ramiah and Govender. It was claimed that the conciliator remained in the room whilst the GB went outside to caucus and arrive at a decision.
5.6.4 The chairperson, Ms Tomlinson agreed that they wished to appoint Mr Reddy to the post. The Learners as well as the staff representatives supported this decision. There was consensus between the 3 stakeholder teams at the conciliation. There was a written document/statement from the Governing Body who wrote a declaration, which was typed and signed by all parties present. At no time was the document prepared by the conciliator.
5.7 Under cross-examination by APEK the witness stated that the was not a member of the GB but a staff representative and that he replaced Mr P M Govender whom was the nephew of Mr P Govender. He stated that he participated at the conciliation and he was not an elected member but asked to be the staff representative who democratically elected him to represent the staff at the conciliation process. He also testified that the Governing Body signed the document nominating Mr Reddy to the post.
5.8 Under cross-examination by the department the witness testified that Mr P M Govender only stepped down at the conciliation process and was party to the full interview process. He only stepped down after the dispute was lodged. The witness was not able to answer whether Mr P M Govender was present at the interview stages, as he only became involved at the conciliation. He also stated that the conciliation process did not use any force and that they were not under any duress. The decision to appoint was the decision of the Governing Body. There were 5 parents present and there was no duress to appoint Mr Reddy. As the staff observer he answered that the conciliation process was fair and again claimed that the staff elected him and Mr Moonsamy as the staff representatives to ensure the fair appointment of the principal.
5.9 In closing SADTU summarized as follows : The interview process was fair until the EC6 was submitted (supersession); the selection committee submitted a nomination with a supersession clause for a candidate with a score of greater than 5 point score. This was contrary to the procedure manual and does not qualify the candidate, Mr Govender. The reasons submitted as motivation for the supersession clause were discriminatory and were not credible justification. The Governing Body also overlooked the supersession of 3 other candidates who qualified as well. This was discriminatory.
5.10 Mr L S Chetty accepted a post elsewhere and therefore in accordance to EC7 the next candidate to be appointed was Mr Reddy in terms of the preference list (EC6). The Governing Body and SADTU agreed to a dispute resolution mechanism namely, conciliation to resolve the dispute submitted by Mr Reddy as he was the person to be appointed in accordance to the preference list and his scores. This was done and Mr Reddy was successfully nominated by the Governing Body. SADTU also agreed with APEK that the DRC was ultra vires. However, this did not alter the decision of the irregular nomination and the conciliation agreement signed between the Governing Body, staff representatives and the Learners in nominating Mr Reddy.
5.11 The relief sought was that the Department appoints Mr Reddy retrospectively to March 2000, date of the conciliation nomination as the Department withheld the appointment pending the outcome of the dispute between Mr P Govender and the Department.
6 . ANALYSIS OF EVIDENCE & ARGUMENT
6.1 As stated above, my terms of reference allow me to make a finding if I am satisfied that there was any unfair conduct by the Department relating to the Applicant, Mr Govender.
6.2 I will address both the substantive and procedural fairness/unfairness of the non-appointment of Mr Govender. Mr Govender had good intentions in trying to secure his promotion based on the nomination that was rejected by the Department.
6.3 I refer to the scores itself and the EC6 and the ranked preference that was in contention. The question to be asked is whether the scores reflected on the EC6 form submitted by the Department was the legitimate EC6. The scores on this EC6 were most definitely not average scores as per the exhibit but total scores or consensus scores as was evident on the EC6 submitted as documentary evidence by the Department. I now refer to the table under the Unions contentions, which clearly spells out the average scores. I most definitely agree with and accept APEK’s arguments that the difference in the average scores is 5 points. This was also the testimony of the SADTU witness. However, it is regretful that the average scores were not reflected on the EC6 even though the method of arriving at the total scores were by averaging and then arriving at a total score and APEK rightfully points out this difference. However APEK failed to acknowledge the 6-point difference in the total score and was silent on this matter. The candidates were then ranked in acknowledge the 6-point difference in the total scores, which was unfortunate. If the average scores were documented on the EC6 then the matter would been looked at differently and the supersession clause may have been applicable. If the panel wished to submit average scores then those scores were never reflected on the EC6 as average scores but as consensus scores. I take the view that the scores reflected on the EC6 were consensus scores in accordance with the Targeted Selection Interviewing Methodology, which the Department subscribed to. The methodology used was averaging the scores first and then recording their total scores. These average scores then became a score that was now a consensus score by the very fact that it was recorded not as an average score. If I am to accept APEK’s arguments that the scores were averaged then the average score should have been reflected on the EC6. This was not the case. The scores on the EC6 submitted as documentary evidence reflects a score, which to my mind is a consensus score. The scores may have been averaged at the interview process; however, when recorded the very same average scores were recorded as a consensus score. I am therefore satisfied with the scores on the EC6 that they were not recorded as average scores and therefore there is a clear 6-point difference where the supersession does not apply.
6.4 I now refer to the validity of the nomination process whereby the nephew of the Applicant was a member of the Governing Body who nominated Mr Govender, the uncle of the GB member. This member failed to recluse himself from the panel to ensure fairness in the selection of the principal for Roseville Secondary School. I am also surprised that the Applicant himself failed to disclose that the Governing Body panel member was his nephew. Therefore both the Applicant, Mr Govender and the GB panel member failed to disclose this fact and therefore this nomination process was flawed as the Department rightfully points out. The validity of this nomination is also questionable on this ground apart from the supersession irregularity.
6.5 With regard to the supersession clause I am inclined to accept the argument of the Department where it was stated that there is clearly a 6-point difference in the scores and therefore this was a breach of the rules governing supersession. APEK rightfully points out that the score is only a guide to be used. I agree with this. However, the decision to appoint uses these very scores to rank the candidates in order of preference. I do not believe that Mr Govender qualified for the supersession clause based on the 5 point difference in the method of averaging the scores according to their calculations and the testimony of their witness. The average scores are not reflected on the EC6, which was the document submitted to the Department for appointment.
6.6 I have considered the submission of the EC6 forms. There were 2 exhibits submitted by APEK and one EC6 by the Department and SADTU. The EC6 with Mr Govender as the preferred first ranked candidate with 35 points and Mr Reddy was the second preferred candidate with 41 points was rejected by the Department based on the irregular supersession clause and this was then followed by another EC6 with Mr Chetty as the first preferred, ranked candidate and Mr Reddy the second preferred ranked candidate. Mr Chetty was no longer eligible for the post as he was appointed elsewhere and the next candidate on the list was Mr Reddy who automatically became the eligible candidate for appointment. This appointment never materialised due to the 2 disputes lodged by both Mr Reddy and Mr Govender and the court interdict which I accept.
6.7 I now refer to the conciliation process. I accept the Department’s arguments that the conciliation process was a legitimate dispute resolution mechanism to expedite the appointment the principal to this post. I also am sympathetic with the Applicant regarding this conciliation which he was not aware of or not invited to. However, this dispute that was conciliated was between Mr Reddy and the Governing Body where the learners and the staff representatives were present. This process legitimately nominated Mr Reddy which was well documented and signed for by all relevant stakeholders as per the conciliation agreement submitted as documentary evidence.
6.8 With reference to the biasness and undue pressure and influence on the parties to appoint Mr Reddy my view is that the evidence presented by certain witnesses were corroborated. I accept Mr Govender’s evidence and he was credible. He did however admit to going directly through to his layers with 2-3 weeks of raising his dispute with SADTU. He also believed that the Department was jointly responsible with the Governing Body for his nomination and not the Governing Body on it’s own as the Department argued. I am inclined to believe that the Governing Body is responsible in terms of the procedures in place for the nomination and the appointment of the candidate vested with the Department. The DRC or the “illegal creatures” as APEK points out, were in place at that point in time and rightfully rejected the nomination where there was a 6 point difference which was wrongfully advised and motivation requested for by the Department’s SEM, Mr Zuma. This was then remedied with the second EC6 nominating Mr Chetty as the first preferred candidate and Mr Reddy as the second candidate who was then legitimately finalised at the conciliation whereby Mr Reddy was successfully nominated.
6.9 I now refer to the reliability and credibility of the 7 witnesses. Mr H Khan tended to have memory lapses as and when it suited him. I do acknowledge that the matter was some 2 years old and there maybe a tendency to forget detail. I do not accept that he was forced into the decision to nominate Mr Reddy to the post as he looked of strong character and of a sound mind when he testified. I therefore find it difficult to accept his evidence. He also was a signatory to the conciliation agreement that was submitted as documentary evidence. He also presented contradictory evidence when cross examined by both SADTU and Mr Jenkins and was not a reliable witness.
6.10 Mr S S Pillay was reliable and testified that the process was irregular with the scores being averaged and his dispute was not addressed. As a Union observer he failed in his duties to pursue his objections. The presence of Union observers at these processes is simply to ensure that fairness prevails at all times. He did however note his objections on the EC6 and followed this through with an undated letter in writing, which was supposedly faxed, but no records evident. He also accepted that the was aware of the dispute procedures as a Unionist.
6.11 There were 2 witnesses who were co-opted members elected by the staff as staff representatives that came on board after it was established that Mr P M Govender, a GB member was the nephew of Mr Govender. Both Anita and B Govender confirmed that they were present at the conciliation. Mr B Govender believed that the conciliator influenced the conciliation process to nominate Mr Reddy and I am very doubtful about their evidence and it is highly probable that their evidence is corroborated to discredit the process and the candidate nominated. Mr M Moonsamy did however accept that there was a majority agreement to appoint Mr Reddy and this also included his participation in the nomination.
6.12 The evidence of Mr R Sawathien, a teacher representative was mandated to attend the conciliation process and testified that the process was fair and that there were 3 options available to them and the Governing Body nominated Mr Reddy which then resulted in the learners, staff representatives and the GB agreed to the nomination with a vote of 6:4 in favour of Mr Reddy.
6.13 Having considered the evidence of 8 witnesses who primarily were involved with the conciliation process, I am satisfied that the conciliation was fair and the majority agreed to Mr Reddy as the principal and all the stakeholders, 5 parents (GB) including the chairperson of the GB, Ms Tomlinson, 2 staff representatives and the learners signed the conciliation agreement drawn up by themselves on 8 March 2000.
6.14 With reference to the information required after APEK presented their case regarding the supersession for 2 other schools. This information was not required prior to the hearing and the Department was not in a possession to table this information as required and responded that it was not relevant which I do not believe.
6.15 I do not accept the Department’s arguments that the nomination is the sole responsibility of the Governing Body alone. I agree the GB is tasked with this and it is their responsibility to nominate, however, the Department’s representative is present in an advisory role with Union observers to ensure fairness and this did not happen which subsequently resulted in 2 disputes for the same post. Had the supersession clause been properly applied in the first place then there would not have been all the controversy regarding this appointment.
6.16 With reference to the non-withdrawal of the first nomination to Mr Govender, I accept that this could not have happened as there was a court interdict that required Mr Govender’s dispute to be settled and therefore the Department was not in a position to withdraw his nomination. His nomination was a serious infringement of the procedures applicable to promotion and supersession. This then delayed the appointment of Mr Reddy pending the outcome of this dispute.
6.17 I accept the Department’s arguments that the Applicant, Mr Govender was placed 6th in terms of his scores and did not qualify in terms of supersession or the motivation which stated that he was the acting principal, resides in the areas and was well liked which I agree were not sound reasons and could be perceived to be discriminatory as well as there were 3 other applicants who also qualified for supersession in terms of their scores.
6.18 After considering all the evidence put before me at the arbitration I am satisfied that there is no need to redo the process as was suggested by the one witness which was also declined at the conciliation. Mr Govender cannot be appoint to the post and Mr Reddy appointed to the post.
7 . AWARD
It is my award :
7.1 That the Department did not act unfairly in the non-appointment of Mr Govender to the Post of Roseville Secondary School. There is no Unfair Labour Practice by the Department.
7.2 The Department appoint Mr Reddy retrospective 1 April 2000 to the post of Principal, Roseville Secondary School in accordance with the Conciliation Agreement.
7.3 The Department officially withdraws the nomination to Mr P Govender in writing.
7.4 There is not order as to costs.
_______________________
ARBITRATOR
J KALIDEEN
Date : 30 June 2001
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 248 KZN
APPLICANT P GOVENDER
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR J KALIDEEN
DATE OF ARBITRATION 14 MAY + 12 JUNE 2000
VENUE DURBAN
REPRESENTATION:
APPLICANT MR G MAHARAJ
RESPONDENT MR P J JENKINS
AWARD:
1 That the Department did not act unfairly in the non-appointment of Mr Govender to the Post of Roseville Secondary School. There is no Unfair Labour Practice by the Department.
2 The Department appoint Mr Reddy retrospective 1 April 2000 to the post of Principal, Roseville Secondary School in accordance with the Conciliation Agreement.
3 The Department officially withdraws the nomination to Mr P Govender in writing.
4 There is not order as to costs.
DATE OF AWARD 30 JUNE 2001