PSES KZN
PSES KZN
Award Date:
4 August 2000
Case Number: PSES KZN
Province: KwaZulu-Natal
Applicant: D REDDY
Respondent: DEPARTMENT OF EDUCATION AND CULTURE
Issue: Unfair Dismissal - Constructive Dismissal
Venue: KWAZULU-NATAL
Award Date: 4 August 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES
In the arbitration between:
D REDDY APPLICANT
and
KZN DEPARTMENT OF EDUCATION AND CULTURE RESPONDENT
ARBITRATION AWARD
1 . REPRESENTATION
The Grievant was represented by Mr Gcwabaza from SADTU and the Employer was represented by Mr M M Moodley from KZNDE. In view of the role played by the School Governing Body (SGB) in the events giving rise to this dispute and their direct interest in the appointment of their school’s principal, members of S M Jhavary Primary School’s Governing Body were notified of this arbitration, invited to attend and were given an opportunity to testify and/or make submissions through the Department’s representative, Mr Moodley.
2 . THE DISPUTE, TERMS AND REFERENCE AND ISSUES TO BE DECIDED
2.1 This dispute was referred to the ELRC by the Union on February 4, 1999. It was referred in terms of paragraph 1.2(h) of the Council’s then Dispute Resolution Procedures, recorded in Resolution 7 of 1997. Paragraph 1.2(h) relates to unfair labour practices as contemplated in schedule 7, item 2(1) Of the Labour Relations Act. Item 2(1)(a) is relevant in this case. It defines an unfair labour practice to mean any unfair act or omission that arises between an employer and employee, involving on any arbitrary ground. A number of grounds are listed which is expressly not an exhaustive list.
2.2 The dispute referral is motivated in the Union’s letter of February 4, 1999. The post of principal for the school S M Jhavary Primary School was advertised by the Employer during 1997. The grievant applied for the post in June that year. He was shortlisted and interviewed by the Staff Selection Committee (SSC) of the SGB in May 1998. He was recommended by the SSC as their first choice to the SGB. Eight months later, in February 1999, the Employer had not yet appointed him.
2.3 Although in the letter of referral, the Union does not elaborate on the grounds of the alleged discrimination, these grounds became apparent during subsequent discussions between the parties and during conciliation proceedings. In summary it is the grievant’s case that he was not appointed to the post by the Employer because the relevant SGB discriminated against him on the grounds that he was an ANC Councillor and an Executive Member of a SADTU branch.
2.4 Being an alleged unfair labour practice involving unfair discrimination, this dispute, if unresolved through conciliation, would normally, in terms of both the Dispute Resolution Procedure of the ELRC, paragraph 1.6 of Resolution 7 of 1997 and item 4(4)(a), schedule 7 of the LRA, be referred to the Labour Court by one of the parties for adjudication. However, at conciliation both parties to this dispute agreed the conciliator be appointed as arbitrator and that he be given the powers to adjudicate the matter. The powers of the arbitrator must, therefore, be the same as the powers conferred on the Labour Court in terms of item 4(1) schedule 7 of the LRA, namely to determine the dispute on terms it deems reasonable, including but not limited to, the ordering of reinstatement or compensation.
2.5 For the purposes of determining this dispute and making an appropriate award, the parties agreed that I should confine myself to the following specific terms of reference:
2.5.1 Whether the process which gave rise to the SSC’s recommendation that the grievant be considered first choice for the post of principal was fair both procedurally and substantively.
2.5.2 Whether the objections raised by the SGB when they referred the matter back to the SSC were fair, reasonable and justifiable grounds for not accepting the grievant as top candidate.
2.5.3 Whether in the circumstances the grievant was unfairly discriminated against in not being recommended to the Department of Education for the post of principal.
3 . EVIDENCE
For the sake of clarity I will deal with the evidence under two separate headings, namely, the fairness of the selection process and thereafter whether the grounds stated by the SGB for not ratifying the SSC’s recommendation were fair, reasonable and justifiable.
4 . FAIRNESS OR OTHERWISE OF THE SELECTION PROCESS
4.1 Mr A K Maharajh testified on behalf of the Grievant. At the time of the interviews he was SADTU’s representative observer on the SSC. He participated in the selection process for the entire period, about three weeks, and was present during all the interviews of the eight candidates. Everyone was given equal time and the prescribed manual was used throughout. In his view there were no irregularities and all candidates were treated fairly. He testified that the grievant and another candidate, Mr Persad scored equally and that not all members of the SSC agreed that Mr Reddy was the best candidate. He conceded that Mr Ngcobo, a departmental representative, voiced concern about an unrealistic score awarded to the grievant in respect of one question. At the end of the process the members of the SSC debated who should be their first choice in view of the fact that the top score was shared by two candidates. According to Mr Maharajh consensus was eventually reached and the grievant was placed on top of the list. All members of the SSC signed the EX 6 Rank Order Preference List. He refuted any suggestion that there had been any coercion. During cross-examination it was suggested to the witness that he might have acted beyond his role as an observer by reading the CV’s and/or trying to influence the scores. Although he could not remember whether he had read the CV’s he denied that he tried to influence the scores in any way. It should be noted that the Department did not lead any evidence to prove that this witness acted improperly during the interview process.
4.2 Mr Reddy testified that he has completed 25 years of service with the Department of Education. He is presently head of Department, having been promoted to that post in January this year.
4.3 With regard to the fairness or otherwise the selection process, the grievant’s testimony was restricted to two points. Firstly, his experience of his interview was that it was fair in all respects. Obviously he is not in a position to compare his interview with any of the other candidates. Secondly he was asked about his relationship with the chairperson of the SGB and the SSC, Mr A Singh. It was suggested in cross-examination that he had a close relationship with Mr Singh, that their respective families had been on holiday together and that they were house friends.
4.4 The grievant conceded that they had on one occasion, coincidentally, been on holiday at the same resort. He denied that they were close friends and in his view there was no reason why Mr Singh should have recused himself from the SSC while he Mr Reddy was being interviewed.
4.5 The employer called Mr M Devadran as its first witness. He is a Senior Administration Clerk at the school. At the time of the interviews he was Recording Secretary for the SGB. In his opinion there were material irregularities during the interviews. He testified that at the ratification meeting of the SGB when the SSC’s choice of the grievant as top candidate was rejected, the Chairperson admitted that he, Mr Singh and Mr Reddy were personal friends.
4.6 That according to him was one of the reasons why the SGB refused to ratify the SSC’s choice. The minutes of the meeting dated June 5, 1998 refer to nepotism, although there is no elaboration as to what is meant by that. There is no record in the minutes that Mr Singh acknowledged a close friendship with the grievant. His other point was that Mr Singh took the box of applicants to his house before the interviews.
4.7 On the question of scoring, his evidence as essentially the same as that of Mr A K Maharajh. There was initially a division and at the end the grievant was given a consensus score of 41 points which made him top candidate.
4.8 The next witness to testify for the employer was Mr Ngcobo. He has extensive experience in education and is currently a Superintendent of Education Management in KZNDE. HE attended the interviews as an observer for the Department although he only arrived on the second day half through Mr Persad’s interview. He was present throughout the grievant’s interview. He testified that after the interview he recorded a concern that in his view the scoring for Mr Reddy was too high and that he would have scored Mr Persad higher.
4.9 As a result he signed the EC5 and 6 forms with reservations and made an oral report to the Department.
4.10 He also testified that he observed a familiarity between the grievant and the interviewers although he did not believe that there as any nepotism.
4.11 Finally, when asked about Mr Maharajh’s behaviour during the interviews he answered that he did not observe anything irregular or unbecoming.
4.12 The last witness to be called was Mr K S Gounden. He was an elected member, parent representative of the SGB and a member of the SSC. He initially scored Mr Persad higher than the grievant, but subsequently after discussion agreed to Mr Reddy’s name as first choice. HE did not feel that he had been either coerced or pressurized.
5 . GROUNDS FOR NOT RATIFYING THE SSC’s RECOMMENDATION
5.1 The best evidence dealing with the grounds on which the SGB decided not to ratify the SSC’s recommendation is contained in the minutes of the SGB’s meeting on June 5, 1998. These can be summarized as follows:
5.1.1 That the selection process was irregular because the grievant was a friend of members of the SSC and in particular a close friend of the Chairperson of both the SGB and the SSC, Mr Singh. This would leave both the SGB and the SSC open to accusations of nepotism.
5.1.2 That Mr Reddy lacked managerial experience.
5.1.3 That the grievant’s wife was a member of staff at the same school and if he were to be appointed principal he would not be able to be totally objective in his dealings with her. In sum she would be treated more favourably than the other educators would. It was emphasized that the controversy was, therefore, Mr Reddy himself.
5.1.4 That previously the school had problems of absenteeism with the former principal; that the grievant was an ANC Councillor who would be absent from school from time to time which would be unacceptable.
5.1.5 That the grievant was an Executive Member of SADTU which would also take him away from the school on occasions.
5.1.6 That Mr Reddy would not be acceptable to the staff which would impact on staff morale and the integrity of the SGB.
5.2 When the grievant testified he confirmed that at the time of the interview he was an Executive Member of SADTU and an ANC Councillor.
5.3 He also testified that during his interview and at any subsequent time he was never questioned about his involvement with either the ANC or SADTU. He was also not questioned about what he would do to ensure that this would not impact negatively on his work if he were to be appointed as principal. He was also not given an opportunity to express his feelings about the fact that his wife was on the staff and how he would deal with that. As already recorded he denies that he and Mr Singh were close personal friends.
5.4 During the arbitration Mr Moodley, representing the Department of Education questioned the grievant on his attitude and response to these grounds. Although I was reluctant to allow these questions since the grievant’s answers would in my view not be relevant if they were not tested at the time of the interview, I permitted Mr Moodley to proceed, subject to a later ruling on admissibility. I have decided that his answers are not relevant and will, therefore, not deal with that evidence.
5.5 As I explained at the arbitration, the test must be what transpired at the interview. The arbitration cannot be used to hold a fresh interview to gauge the suitability of the grievant for the post.
5.6 Concerning the six grounds extracted from the minutes of the SGB meeting of June 5, 1998, these were repeated by the employer’s witnesses during the arbitration, although there was no significant elaboration.
5.7 Mr Devandran raised a further ground during his evidence. This issue has been dealt with at great length in correspondence between the parties and was also part of the discussions during the conciliation meeting. He testified that the SSC was illegally constituted because two members, Mr Govender and the Chairperson, Mr Singh had got on to the SGB fraudulently and it was through there membership of the SGB that they were appointed to the SSC. The basis of the alleged fraud was that neither had children at the school at the time.
5.8 To qualify for the SGB they allegedly claimed to have taken on the guardianship of children whose parents were not in the region. According to Mr Devandran it was established on June 5, 1998 that they were in fact not guardians of the two children as alleged.
5.9 I wish to record that this issue was resolved at the conciliation meeting. I am therefore, surprised that Mr Moodley pursued it in his written submission. At that meeting on April 25, 2000 the Department recorded its dissatisfaction with the SGB’s insistence that it had been illegally constituted and stated unequivocally that in its view this point was an after-thought. According to my notes of the Conciliation Meeting, this was not an issue to be referred to Arbitration and was not intended to be part of my terms of reference. If the Department had taken this point seriously when it was first raised by the SGB in 1998 it surely would have refused to have any dealing with an illegally constituted SGB.
5.10 Furthermore, one cannot help but question the integrity and bona fides of the members of a SGB, which claims to be illegally constituted so that it can nullify what it has done in the past. It then continues to function in the future, inter alia, setting aside its previous decisions, duly constituted in precisely the same way as it was when, in its view, it was illegally constituted.
5.11 Finally, it was common cause at the Conciliation Meeting that the SSC which speedily reconvened on June 5, 1998 to reconsider its listing of candidates with a view to making a fresh recommendation to the SGB, was illegally constituted since none of the observers were invited to attend. Paragraph 9 of Resolution 13 of 1995 of the KZN Education Labour Relation Chamber, which deals with shortlisting and reviewing procedures and practices, provides that observers from shortlisting and interviewing process. Assessing candidates, scoring them and preparing a list is an integral part of the interviewing process.
6 . ANALYSIS OF EVIDENCE AND THE PARTIES SUBMISSIONS
6.1 FAIRNESS OR OTHERWISE OF THE SELECTION PROCESS
6.1.1 As far as the grievant is concerned there was nothing irregular or unfair with the selection process, which gave rise to the SSC’s EC6 Rank Order Preference List ranking him, as the best candidate for the job.
6.1.2 If it is the Department’s case that the selection process, for which it is ultimately responsible, was irregular or unfair, the onus is upon the Department to prove its case. On analysing the employer’s evidence the grounds for challenging the fairness of the selection process seem to be:
6.1.2.1 That there may have been a degree of coercion by Mr Singh and Mr Govender in persuading Mr Gounden to support the grievant as top candidate.
6.1.2.2 That the Chairperson of the SGB and the SSC, Mr Singh is a close personal friend of the grievant and he should, therefore have recused himself form the process. His failure to do so amounts to nepotism.
6.1.2.3 That the high score given to the grievant by Mr Singh and Mr Govender in particular was unrealistic and proof of bias.
6.1.2.4 That Mr Singh had taken the ballot box to his home and that this was irregular.
6.1.3 In his written submission, Mr Moodley, representing the employer challenged the selection process on two grounds. Firstly, he argued that on the strength of Mr Ngoco’s evidence I should find that Mr Reddy had been overrated.
6.1.4 He pointed out that if one has reference to the EC5 form it is evident that Mr Govender scored Mr Reddy 45 out of 49, while Me Gounden scored him 37 out of 49. It is true that in his evidence Mr Ngcobo expressed his concern about the high score given to the grievant and that in his opinion Mr Persad was a more impressive candidate. This point is also made in a separate written submission made to me by the SGB through the Department. I regard this submission as part and parcel of the Department’s submission.
6.1.5 In its written submission, SADTU, representing the grievant argued that at no stage during or after the interview process did any party express dissatisfaction to the point of having to declare a dispute. Mr Gcwabaza from SADTU’s made the point that if there had been a stalemate no recommendation would have been referred to the SGB.
6.1.6 Although Mr Ngcobo expressed concern about the high score given to the grievant and was of the view that Mr Persad was a more impressive candidate, he clearly did not conclude that the process was either procedurally or substantively unfair as a result. He did not file a formal complaint or declare a dispute. More importantly, in his evidence he at no stage said that the high score given to Mr Reddy rendered the entire process unfair.
6.1.7 In fact when he testified about familiarity he observed between the grievant and the interviewers he said that he did not believe that there was any nepotism.
6.1.8 In the circumstances, on this point the employer has not proved that the high score given to the grievant by two of the interviewers constitutes material bias or unfairness.
6.1.9 My Moodley’s second ground for challenging the fairness of the interview process is that the grievant and Mr Singh are close personal friends and that the latter’s failure to recuse himself was fatal to the process. Mr Moodley was not satisfied with responses he got from the grievant on this point during cross-examination.
6.1.10 In their written submission, the SGB argue that the issue of bias is without doubt. They base this conclusion on Mr Singh’s alleged behaviour in lying to the Superintendent of Education and misleading the Department with regard to his relationship with the grievant.
6.1.11 The only oral evidence presented to me in this regard came from the grievant and Mr Devandran. Mr Reddy denied that he and Mr Singh were close personal friends. On the other hand Mr Devandran testified that Mr Singh had admitted to him that they were. This is purely hearsay evidence. I should add that no explanation was offered by the Department as to why Mr Singh was not called to testify.
6.1.12 The minutes of the ratification meeting of the SGB of June 5, 1998 are not of great assistance in this regard. They refer to nepotism and are full of allegations of personal friendships, not only between the grievant and Mr Singh but also between grievant and other members of the SSC.
6.1.13 There are also questions as to the relationship between members of the SSC and Mr Persad. Nowhere in those minutes does Mr Singh admit to a close personal relationship with the grievant or concede that he should have recused himself.
6.1.14 In the circumstances, the employer has not discharged the onus of proving that the Chairperson of the SSC (ironically, carrying out an employer function) should have recused himself. On the contrary its own witness, Mr Ngcobo, testified that although he observed the familiarity between the grievant and the interviewers he did not believe that there was nepotism. He was in attendance during the interviews most of the time and was well placed to observe anything untoward.
6.1.15 Correctly, in my view, the Department has not pursued in argument the issues of coercion and the fact that Mr Singh took the ballot box home. It is clear from the evidence that there was no coercion. Even Mr Gounden who supported Mr Persad and who testified on behalf of the Department stated that he did not feel that he had been either coerced or pressurized into changing horses when he agreed to support the grievant as first choice.
6.1.16 As far as the ballot box is concerned, although taking it to his home was irregular, there is no evidence that this action by Mr Singh could have influenced the outcome of the process. It is thus immaterial for the purposes of this arbitration.
6.1.17 I note that the SGB raise as material issues the ballot box and the grievant’s failure to produce this ID book at the interview. My view of the former is recorded above. The purpose of bringing ones ID to an interview is so that the applicant’s identification can be verified. Against their complaint that Mr Singh and the grievant were personal friends it is surprising that they persist with this point.
6.1.18 In conclusion, my finding in regard to the fairness of the process which gave rise to the SSC’s recommendation that the grievant be considered first choice for the post of principal is that it was both substantively and procedurally fair.
6.2 GROUNDS FOR NOT RATIFYING THE SSC’s RECOMMENDATION
6.2.1 The factual grounds for not ratifying the SSC’s recommendations are not contested by the grievant. The grievant was not present at the ratification meeting. Therefore, I accept that the six grounds set out above are collectively the reasons why the SGB refused to ratify the recommendation. However, the grievant contests that these six objections constitute fair, reasonable, justifiable or legal grounds for referring the matter back to the SGB for reconsideration.
6.2.2 The evidence of the grievant that he was never given the opportunity to respond to any of these objections is not contested by the employer.
6.2.3 In his submission on these points Mr Moodley merely dealt with the general undesirability of spouses serving at the same school and speculated about executive members of trade unions having to leave schools during teaching hours. He said, and I quote: “the effect and consequences of each of them (referring to some of the objections) may impair and impact on the performance of one’s function as a school principal”. This is once again pure speculation, the reason being that no one has any idea how the grievant would have responded if these objections had been put to him at the time of his interview.
6.2.4 As I have already indicated, his answers to questions relating to some of these objections during the arbitration are not relevant. As I have already stated, the grievant contests that the grounds for referring the recommendation back to the SSC as fair, reasonable, justifiable or legal.
6.2.5 In their written submissions, SADTU referred me to the Promotions Procedure Manual 97/98, which is a binding document of the KZN Chamber of the ELRC. It deals specifically with the grounds on which a SGB may reject a recommendation of the SSC. Firstly, there must not be a points difference of more than give points between the recommended choice of the SSC and the choice considered by the SGB. Secondly, assuming the points difference is less than five there are three grounds on which the SGB should base their consideration: sound education requirements; adhering to demographic representation and; consideration of gender balance.
6.2.6 During the conciliation meeting SADTU referred to these grounds set out in the Promotions Procedure Manual as being the only grounds upon which a SGB could refer a recommendation back to the SSC. This was not contested by the Department. At no stage during these disputes resolution proceedings, either at conciliation or arbitration has the Department, correctly in my view, challenged the applicability of the Promotions Procedure Manual or attempted to argue that there are any other grounds upon which a recommendation may be referred back.
6.2.7 Neither the Department nor the SGB, which in terms of the South African Schools Act No 84 of 1996, is tasked with making recommendations to the HOD on the appointment of Educators, lead any evidence to show that in rejecting the SSC’s recommendation, education requirements, demographic representation or gender balance were taken into consideration.
6.2.8 In the circumstances it is evident that the SGB acted in contravention of the Promotions Procedure Manual. I should also record that at the conciliation meeting it was common cause between the parties that the reconstituted meeting of the SSC on June 5, 1998 was not a meeting of the SSC in view of the fact that the observers had not been notified.
6.2.9 I agree with the submissions of SADTU that it was nothing more than a side meeting of the SGB. Mr Moodley also made this point in the Department’s written submissions.
6.2.10 The question which I have to decide is whether the objections raised by the SGB were fair, reasonable and justifiable grounds for refusing to ratify the SSC’s choice of the grievant as top candidate. There is indisputable evidence that when the SSC chose the grievant as top candidate: they knew that his wife was a teacher at the school; they knew that the was an ANC Councillor; they knew that he was an Executive Member of SADTU.
6.2.11 Notwithstanding the above he was their first choice. Furthermore, it is clear from the minutes of the meeting of June 5, 1998 that they satisfied themselves that he had the necessary managerial experience.
6.2.12 The SGB did not undertake the interviews. Therefore, it is not in a position, nor does it have the right to review decisions diligently made by the SSC, except to a limited extent as provided for in the Promotions Procedure Manual.
6.2.13 The remaining two objections are that the selection process was irregular because of the relationship between the grievant and the Chairperson and that Mr Reddy would not be acceptable to the staff. With regard to the former I have already found that the Department has failed to prove that the selection process was irregular. Concerning the latter, it is evident from the minutes of the ratification meeting on June 5, 1998 that the grievant was, according to the staff component, unacceptable to the staff because of his wife’s employment at the school and because of his involvement with the ANC and SADTU.
6.2.14 In my opinion, the only legitimate concern raised by the SGB relates to the grievant’s wife’s employment at the school. However, if that had been their only concern and objection I have no doubt that creative attempts would have been made to resolve it. The grievant could for example have been asked whether his wife would consider a transfer to another school.
6.2.15 I find therefore, that the objections raised by the SGB, in rejecting the SSC’s recommendations, were unfair, unreasonable and unjustifiable.
7 . FINDING BE UNFAIR DISCRIMINATION
7.1 My third term of reference is a question of law, namely whether given the facts as found, there was unfair discrimination against the grievant.
7.2 I find that Mr D Reddy was unfairly discriminated against by the SGB in not recommending him to the Department of Education for the post of principal. I am satisfied that he was rejected primarily because of his wife’s employment at the school and because of his involvement with the ANC and SADTU. However, for the purposes of this award I will base my finding solely on the arbitrary discrimination against him on the grounds that he was an ANC Councillor and an Executive Member of SADTU.
7.3 Had this discrimination not taken place the would in all likelihood have been appointed principal by the Department.
8 . DETERMINATION
8.1 My powers are to determine this dispute on terms I deem reasonable including the ordering of reinstatement or compensation - item 4(1), schedule 7 of the LRA. Reinstatement does not come into play in this case.
8.2 SADTU representing the grievant argues that I have the power to appoint Mr Reddy to the post, presumable on the basis that, that would be a reasonable and fair manner in which to determine the dispute.
8.3 The Department contends that the selection process is still incomplete since the SSC, properly constituted with observers, has not yet met. Their argument is that the Department, other than in exceptional circumstances, may only act in making an appointment in terms of section 6(3)(a) of the Employment of Educators Act of 1998 and the SA Schools Act of 1996, after the SGB has ratified the recommendation from the SSC.
8.4 The Department acknowledges the provisions of the Education Laws Amendment Act of 1999 which inter alia amends section 6 of the Employment of Educators Act empowering the Department to make an appointment if a SGB has failed to do so within a period of six months. However, the Department is concerned that the amendment is not retrospective and, furthermore, for reasons not explained does not seem to feel that the SGB is at fault for the delay.
8.5 Therefore the Department is not empowered to appoint. Since the Department does not have the power to appoint, so the argument goes I too do not have the power to either appoint or order it to appoint.
8.6 Notwithstanding the fact that in my view the behaviour of members of the SGB during this entire incident has much to be desired I do not believe that a reasonable outcome of this dispute would be Departmental intervention resulting in the appointment of Mr Reddy to the post of principal of S M Jhavary Primary School. It is therefore not necessary for me to consider and decide upon the retrospectivity of Act No. 48 of 1999.
8.7 I was impressed with Mr Reddy as a witness. He struck me as an intelligent and sensitive man. He has been in the employ of the Department for 25 years and at the beginning of this year was promoted to Head of Department. I have no doubt that he has the diligence and determination to achieve further promotion. My concern is that if he were to be appointed as principal of JMJ, against the wishes of the SGB, particularly against the background of the past two years, he may well be set up to fail, notwithstanding his own qualities.
8.8 In support of my thinking I should point out that I have not been able to find a single reported case of the Labour Court or the Labour Appeal Court where with similar facts the court appointed or ordered the employer to appoint the applicant.
8.9 In my view an appropriate remedy would be compensation. The question, though, is whether I can order the Department to pay compensation to the grievant on the strength of discrimination perpetrated by a SGB. There can be no doubt that the Department is legally responsible for the actions of SGB’s which are undertaken in terms of the SA Schools Act. A SGB is a statutory body elected to govern a school. Its general purpose is to perform efficiently its functions in terms of the SA Schools Act on behalf of the school, which is a public school (Section 16).
8.10 One of its functions, or managerial duties, is to participate in the process of appointing educators (Section 20). It exercises this managerial duty on behalf of the Department. The SA Schools Act, sections 22 and 25, enable the Department to take action against a SGB which is not performing.
8.11 Therefore, the Department is, in these circumstances, liable to pay compensation to Mr D Reddy, against whom the SGB committed an act of unfair discrimination.
8.12 The only outstanding issue is computation of the compensation. In this regard I have taken into account the approach adopted by the Labour Court in the case of Whitehead v Woolworths (Pty) Ltd 1999 LC. One of the questions, which the court had to consider, was the basis for computing compensation. In this regard the court stated, and I quote:
“Item 4 of Schedule 7 of the Labour Relations Act empowers this Court to order compensation in disputes about unfair labour practices. There is no limited prescribed to the amount of compensation I may order nor is there any basis set out in the Act upon which I may calculate an appropriate compensation. It is therefore left to this Court to decide what principles it would apply in determining the compensation. The only condition being that the Court must be satisfied that the compensation ordered is fair and reasonable.”
8.13 It is evident from the above that in determining what is a fair and reasonable amount, computation should not be based on purely patrimonial or actual loss. This was emphasized in the judgement. Over and above consideration of financial loss the Court also took into consideration, the actions of the employer as well as the nature of the unfair labour practice.
8.14 In coming to an amount, which in my view would constitute fair and reasonable compensation, I have taken the following into consideration:
8.14.1 The fact that the grievant lost some income during the past two years as a result of him not being appointed to the post. I have taken account of the fact that at the beginning of this year he was promoted to Head of Department.
8.14.2 The fact that he has been in the employ of the Department for 25 years and from all accounts has been a loyal, conscientious and dedicated educator. Against that background he has, in my view been treated appallingly by the SGB of S M J Primary School. He has ben the victim of an incompetent, dishonest and hypocritical SGB which was tasked with the responsibility of managing a public school on behalf of the Department of Education.
8.14.3 The failure of the KZN DE to proactively intervene, thereby bringing an end to an unnecessarily long period of professional uncertainty for the grievant. As I have already mentioned, the SA Schools Act empowers the Department to act against a SGB, which is failing in its duties. This is particularly pertinent since the Department seems to be of the view that the SGB had been unlawfully constituted.
8.15 Taking the above factors into consideration, the Department is ordered to pay the grievant compensation in the amount of R100 000,00.
______________________
Arbitrator
BRIAN CURRIN
4 August 2000
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES KZN
APPLICANT D REDDY
RESPONDENT KZN DEPARTMENT OF EDUCATION AND CULTURE
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR BRIAN CURRIN
DATE OF ARBITRATION 4 FEBRUARY 1999
VENUE KWAZULU-NATAL
REPRESENTATION:
APPLICANT MR GCWABAZA
RESPONDENT M M MOODLEY
AWARD:
Taking the above factors into consideration, the Department is ordered to pay the grievant compensation in the amount of R100 000,00.
DATE OF AWARD 4 AUGUST 2000
Province: KwaZulu-Natal
Applicant: D REDDY
Respondent: DEPARTMENT OF EDUCATION AND CULTURE
Issue: Unfair Dismissal - Constructive Dismissal
Venue: KWAZULU-NATAL
Award Date: 4 August 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES
In the arbitration between:
D REDDY APPLICANT
and
KZN DEPARTMENT OF EDUCATION AND CULTURE RESPONDENT
ARBITRATION AWARD
1 . REPRESENTATION
The Grievant was represented by Mr Gcwabaza from SADTU and the Employer was represented by Mr M M Moodley from KZNDE. In view of the role played by the School Governing Body (SGB) in the events giving rise to this dispute and their direct interest in the appointment of their school’s principal, members of S M Jhavary Primary School’s Governing Body were notified of this arbitration, invited to attend and were given an opportunity to testify and/or make submissions through the Department’s representative, Mr Moodley.
2 . THE DISPUTE, TERMS AND REFERENCE AND ISSUES TO BE DECIDED
2.1 This dispute was referred to the ELRC by the Union on February 4, 1999. It was referred in terms of paragraph 1.2(h) of the Council’s then Dispute Resolution Procedures, recorded in Resolution 7 of 1997. Paragraph 1.2(h) relates to unfair labour practices as contemplated in schedule 7, item 2(1) Of the Labour Relations Act. Item 2(1)(a) is relevant in this case. It defines an unfair labour practice to mean any unfair act or omission that arises between an employer and employee, involving on any arbitrary ground. A number of grounds are listed which is expressly not an exhaustive list.
2.2 The dispute referral is motivated in the Union’s letter of February 4, 1999. The post of principal for the school S M Jhavary Primary School was advertised by the Employer during 1997. The grievant applied for the post in June that year. He was shortlisted and interviewed by the Staff Selection Committee (SSC) of the SGB in May 1998. He was recommended by the SSC as their first choice to the SGB. Eight months later, in February 1999, the Employer had not yet appointed him.
2.3 Although in the letter of referral, the Union does not elaborate on the grounds of the alleged discrimination, these grounds became apparent during subsequent discussions between the parties and during conciliation proceedings. In summary it is the grievant’s case that he was not appointed to the post by the Employer because the relevant SGB discriminated against him on the grounds that he was an ANC Councillor and an Executive Member of a SADTU branch.
2.4 Being an alleged unfair labour practice involving unfair discrimination, this dispute, if unresolved through conciliation, would normally, in terms of both the Dispute Resolution Procedure of the ELRC, paragraph 1.6 of Resolution 7 of 1997 and item 4(4)(a), schedule 7 of the LRA, be referred to the Labour Court by one of the parties for adjudication. However, at conciliation both parties to this dispute agreed the conciliator be appointed as arbitrator and that he be given the powers to adjudicate the matter. The powers of the arbitrator must, therefore, be the same as the powers conferred on the Labour Court in terms of item 4(1) schedule 7 of the LRA, namely to determine the dispute on terms it deems reasonable, including but not limited to, the ordering of reinstatement or compensation.
2.5 For the purposes of determining this dispute and making an appropriate award, the parties agreed that I should confine myself to the following specific terms of reference:
2.5.1 Whether the process which gave rise to the SSC’s recommendation that the grievant be considered first choice for the post of principal was fair both procedurally and substantively.
2.5.2 Whether the objections raised by the SGB when they referred the matter back to the SSC were fair, reasonable and justifiable grounds for not accepting the grievant as top candidate.
2.5.3 Whether in the circumstances the grievant was unfairly discriminated against in not being recommended to the Department of Education for the post of principal.
3 . EVIDENCE
For the sake of clarity I will deal with the evidence under two separate headings, namely, the fairness of the selection process and thereafter whether the grounds stated by the SGB for not ratifying the SSC’s recommendation were fair, reasonable and justifiable.
4 . FAIRNESS OR OTHERWISE OF THE SELECTION PROCESS
4.1 Mr A K Maharajh testified on behalf of the Grievant. At the time of the interviews he was SADTU’s representative observer on the SSC. He participated in the selection process for the entire period, about three weeks, and was present during all the interviews of the eight candidates. Everyone was given equal time and the prescribed manual was used throughout. In his view there were no irregularities and all candidates were treated fairly. He testified that the grievant and another candidate, Mr Persad scored equally and that not all members of the SSC agreed that Mr Reddy was the best candidate. He conceded that Mr Ngcobo, a departmental representative, voiced concern about an unrealistic score awarded to the grievant in respect of one question. At the end of the process the members of the SSC debated who should be their first choice in view of the fact that the top score was shared by two candidates. According to Mr Maharajh consensus was eventually reached and the grievant was placed on top of the list. All members of the SSC signed the EX 6 Rank Order Preference List. He refuted any suggestion that there had been any coercion. During cross-examination it was suggested to the witness that he might have acted beyond his role as an observer by reading the CV’s and/or trying to influence the scores. Although he could not remember whether he had read the CV’s he denied that he tried to influence the scores in any way. It should be noted that the Department did not lead any evidence to prove that this witness acted improperly during the interview process.
4.2 Mr Reddy testified that he has completed 25 years of service with the Department of Education. He is presently head of Department, having been promoted to that post in January this year.
4.3 With regard to the fairness or otherwise the selection process, the grievant’s testimony was restricted to two points. Firstly, his experience of his interview was that it was fair in all respects. Obviously he is not in a position to compare his interview with any of the other candidates. Secondly he was asked about his relationship with the chairperson of the SGB and the SSC, Mr A Singh. It was suggested in cross-examination that he had a close relationship with Mr Singh, that their respective families had been on holiday together and that they were house friends.
4.4 The grievant conceded that they had on one occasion, coincidentally, been on holiday at the same resort. He denied that they were close friends and in his view there was no reason why Mr Singh should have recused himself from the SSC while he Mr Reddy was being interviewed.
4.5 The employer called Mr M Devadran as its first witness. He is a Senior Administration Clerk at the school. At the time of the interviews he was Recording Secretary for the SGB. In his opinion there were material irregularities during the interviews. He testified that at the ratification meeting of the SGB when the SSC’s choice of the grievant as top candidate was rejected, the Chairperson admitted that he, Mr Singh and Mr Reddy were personal friends.
4.6 That according to him was one of the reasons why the SGB refused to ratify the SSC’s choice. The minutes of the meeting dated June 5, 1998 refer to nepotism, although there is no elaboration as to what is meant by that. There is no record in the minutes that Mr Singh acknowledged a close friendship with the grievant. His other point was that Mr Singh took the box of applicants to his house before the interviews.
4.7 On the question of scoring, his evidence as essentially the same as that of Mr A K Maharajh. There was initially a division and at the end the grievant was given a consensus score of 41 points which made him top candidate.
4.8 The next witness to testify for the employer was Mr Ngcobo. He has extensive experience in education and is currently a Superintendent of Education Management in KZNDE. HE attended the interviews as an observer for the Department although he only arrived on the second day half through Mr Persad’s interview. He was present throughout the grievant’s interview. He testified that after the interview he recorded a concern that in his view the scoring for Mr Reddy was too high and that he would have scored Mr Persad higher.
4.9 As a result he signed the EC5 and 6 forms with reservations and made an oral report to the Department.
4.10 He also testified that he observed a familiarity between the grievant and the interviewers although he did not believe that there as any nepotism.
4.11 Finally, when asked about Mr Maharajh’s behaviour during the interviews he answered that he did not observe anything irregular or unbecoming.
4.12 The last witness to be called was Mr K S Gounden. He was an elected member, parent representative of the SGB and a member of the SSC. He initially scored Mr Persad higher than the grievant, but subsequently after discussion agreed to Mr Reddy’s name as first choice. HE did not feel that he had been either coerced or pressurized.
5 . GROUNDS FOR NOT RATIFYING THE SSC’s RECOMMENDATION
5.1 The best evidence dealing with the grounds on which the SGB decided not to ratify the SSC’s recommendation is contained in the minutes of the SGB’s meeting on June 5, 1998. These can be summarized as follows:
5.1.1 That the selection process was irregular because the grievant was a friend of members of the SSC and in particular a close friend of the Chairperson of both the SGB and the SSC, Mr Singh. This would leave both the SGB and the SSC open to accusations of nepotism.
5.1.2 That Mr Reddy lacked managerial experience.
5.1.3 That the grievant’s wife was a member of staff at the same school and if he were to be appointed principal he would not be able to be totally objective in his dealings with her. In sum she would be treated more favourably than the other educators would. It was emphasized that the controversy was, therefore, Mr Reddy himself.
5.1.4 That previously the school had problems of absenteeism with the former principal; that the grievant was an ANC Councillor who would be absent from school from time to time which would be unacceptable.
5.1.5 That the grievant was an Executive Member of SADTU which would also take him away from the school on occasions.
5.1.6 That Mr Reddy would not be acceptable to the staff which would impact on staff morale and the integrity of the SGB.
5.2 When the grievant testified he confirmed that at the time of the interview he was an Executive Member of SADTU and an ANC Councillor.
5.3 He also testified that during his interview and at any subsequent time he was never questioned about his involvement with either the ANC or SADTU. He was also not questioned about what he would do to ensure that this would not impact negatively on his work if he were to be appointed as principal. He was also not given an opportunity to express his feelings about the fact that his wife was on the staff and how he would deal with that. As already recorded he denies that he and Mr Singh were close personal friends.
5.4 During the arbitration Mr Moodley, representing the Department of Education questioned the grievant on his attitude and response to these grounds. Although I was reluctant to allow these questions since the grievant’s answers would in my view not be relevant if they were not tested at the time of the interview, I permitted Mr Moodley to proceed, subject to a later ruling on admissibility. I have decided that his answers are not relevant and will, therefore, not deal with that evidence.
5.5 As I explained at the arbitration, the test must be what transpired at the interview. The arbitration cannot be used to hold a fresh interview to gauge the suitability of the grievant for the post.
5.6 Concerning the six grounds extracted from the minutes of the SGB meeting of June 5, 1998, these were repeated by the employer’s witnesses during the arbitration, although there was no significant elaboration.
5.7 Mr Devandran raised a further ground during his evidence. This issue has been dealt with at great length in correspondence between the parties and was also part of the discussions during the conciliation meeting. He testified that the SSC was illegally constituted because two members, Mr Govender and the Chairperson, Mr Singh had got on to the SGB fraudulently and it was through there membership of the SGB that they were appointed to the SSC. The basis of the alleged fraud was that neither had children at the school at the time.
5.8 To qualify for the SGB they allegedly claimed to have taken on the guardianship of children whose parents were not in the region. According to Mr Devandran it was established on June 5, 1998 that they were in fact not guardians of the two children as alleged.
5.9 I wish to record that this issue was resolved at the conciliation meeting. I am therefore, surprised that Mr Moodley pursued it in his written submission. At that meeting on April 25, 2000 the Department recorded its dissatisfaction with the SGB’s insistence that it had been illegally constituted and stated unequivocally that in its view this point was an after-thought. According to my notes of the Conciliation Meeting, this was not an issue to be referred to Arbitration and was not intended to be part of my terms of reference. If the Department had taken this point seriously when it was first raised by the SGB in 1998 it surely would have refused to have any dealing with an illegally constituted SGB.
5.10 Furthermore, one cannot help but question the integrity and bona fides of the members of a SGB, which claims to be illegally constituted so that it can nullify what it has done in the past. It then continues to function in the future, inter alia, setting aside its previous decisions, duly constituted in precisely the same way as it was when, in its view, it was illegally constituted.
5.11 Finally, it was common cause at the Conciliation Meeting that the SSC which speedily reconvened on June 5, 1998 to reconsider its listing of candidates with a view to making a fresh recommendation to the SGB, was illegally constituted since none of the observers were invited to attend. Paragraph 9 of Resolution 13 of 1995 of the KZN Education Labour Relation Chamber, which deals with shortlisting and reviewing procedures and practices, provides that observers from shortlisting and interviewing process. Assessing candidates, scoring them and preparing a list is an integral part of the interviewing process.
6 . ANALYSIS OF EVIDENCE AND THE PARTIES SUBMISSIONS
6.1 FAIRNESS OR OTHERWISE OF THE SELECTION PROCESS
6.1.1 As far as the grievant is concerned there was nothing irregular or unfair with the selection process, which gave rise to the SSC’s EC6 Rank Order Preference List ranking him, as the best candidate for the job.
6.1.2 If it is the Department’s case that the selection process, for which it is ultimately responsible, was irregular or unfair, the onus is upon the Department to prove its case. On analysing the employer’s evidence the grounds for challenging the fairness of the selection process seem to be:
6.1.2.1 That there may have been a degree of coercion by Mr Singh and Mr Govender in persuading Mr Gounden to support the grievant as top candidate.
6.1.2.2 That the Chairperson of the SGB and the SSC, Mr Singh is a close personal friend of the grievant and he should, therefore have recused himself form the process. His failure to do so amounts to nepotism.
6.1.2.3 That the high score given to the grievant by Mr Singh and Mr Govender in particular was unrealistic and proof of bias.
6.1.2.4 That Mr Singh had taken the ballot box to his home and that this was irregular.
6.1.3 In his written submission, Mr Moodley, representing the employer challenged the selection process on two grounds. Firstly, he argued that on the strength of Mr Ngoco’s evidence I should find that Mr Reddy had been overrated.
6.1.4 He pointed out that if one has reference to the EC5 form it is evident that Mr Govender scored Mr Reddy 45 out of 49, while Me Gounden scored him 37 out of 49. It is true that in his evidence Mr Ngcobo expressed his concern about the high score given to the grievant and that in his opinion Mr Persad was a more impressive candidate. This point is also made in a separate written submission made to me by the SGB through the Department. I regard this submission as part and parcel of the Department’s submission.
6.1.5 In its written submission, SADTU, representing the grievant argued that at no stage during or after the interview process did any party express dissatisfaction to the point of having to declare a dispute. Mr Gcwabaza from SADTU’s made the point that if there had been a stalemate no recommendation would have been referred to the SGB.
6.1.6 Although Mr Ngcobo expressed concern about the high score given to the grievant and was of the view that Mr Persad was a more impressive candidate, he clearly did not conclude that the process was either procedurally or substantively unfair as a result. He did not file a formal complaint or declare a dispute. More importantly, in his evidence he at no stage said that the high score given to Mr Reddy rendered the entire process unfair.
6.1.7 In fact when he testified about familiarity he observed between the grievant and the interviewers he said that he did not believe that there was any nepotism.
6.1.8 In the circumstances, on this point the employer has not proved that the high score given to the grievant by two of the interviewers constitutes material bias or unfairness.
6.1.9 My Moodley’s second ground for challenging the fairness of the interview process is that the grievant and Mr Singh are close personal friends and that the latter’s failure to recuse himself was fatal to the process. Mr Moodley was not satisfied with responses he got from the grievant on this point during cross-examination.
6.1.10 In their written submission, the SGB argue that the issue of bias is without doubt. They base this conclusion on Mr Singh’s alleged behaviour in lying to the Superintendent of Education and misleading the Department with regard to his relationship with the grievant.
6.1.11 The only oral evidence presented to me in this regard came from the grievant and Mr Devandran. Mr Reddy denied that he and Mr Singh were close personal friends. On the other hand Mr Devandran testified that Mr Singh had admitted to him that they were. This is purely hearsay evidence. I should add that no explanation was offered by the Department as to why Mr Singh was not called to testify.
6.1.12 The minutes of the ratification meeting of the SGB of June 5, 1998 are not of great assistance in this regard. They refer to nepotism and are full of allegations of personal friendships, not only between the grievant and Mr Singh but also between grievant and other members of the SSC.
6.1.13 There are also questions as to the relationship between members of the SSC and Mr Persad. Nowhere in those minutes does Mr Singh admit to a close personal relationship with the grievant or concede that he should have recused himself.
6.1.14 In the circumstances, the employer has not discharged the onus of proving that the Chairperson of the SSC (ironically, carrying out an employer function) should have recused himself. On the contrary its own witness, Mr Ngcobo, testified that although he observed the familiarity between the grievant and the interviewers he did not believe that there was nepotism. He was in attendance during the interviews most of the time and was well placed to observe anything untoward.
6.1.15 Correctly, in my view, the Department has not pursued in argument the issues of coercion and the fact that Mr Singh took the ballot box home. It is clear from the evidence that there was no coercion. Even Mr Gounden who supported Mr Persad and who testified on behalf of the Department stated that he did not feel that he had been either coerced or pressurized into changing horses when he agreed to support the grievant as first choice.
6.1.16 As far as the ballot box is concerned, although taking it to his home was irregular, there is no evidence that this action by Mr Singh could have influenced the outcome of the process. It is thus immaterial for the purposes of this arbitration.
6.1.17 I note that the SGB raise as material issues the ballot box and the grievant’s failure to produce this ID book at the interview. My view of the former is recorded above. The purpose of bringing ones ID to an interview is so that the applicant’s identification can be verified. Against their complaint that Mr Singh and the grievant were personal friends it is surprising that they persist with this point.
6.1.18 In conclusion, my finding in regard to the fairness of the process which gave rise to the SSC’s recommendation that the grievant be considered first choice for the post of principal is that it was both substantively and procedurally fair.
6.2 GROUNDS FOR NOT RATIFYING THE SSC’s RECOMMENDATION
6.2.1 The factual grounds for not ratifying the SSC’s recommendations are not contested by the grievant. The grievant was not present at the ratification meeting. Therefore, I accept that the six grounds set out above are collectively the reasons why the SGB refused to ratify the recommendation. However, the grievant contests that these six objections constitute fair, reasonable, justifiable or legal grounds for referring the matter back to the SGB for reconsideration.
6.2.2 The evidence of the grievant that he was never given the opportunity to respond to any of these objections is not contested by the employer.
6.2.3 In his submission on these points Mr Moodley merely dealt with the general undesirability of spouses serving at the same school and speculated about executive members of trade unions having to leave schools during teaching hours. He said, and I quote: “the effect and consequences of each of them (referring to some of the objections) may impair and impact on the performance of one’s function as a school principal”. This is once again pure speculation, the reason being that no one has any idea how the grievant would have responded if these objections had been put to him at the time of his interview.
6.2.4 As I have already indicated, his answers to questions relating to some of these objections during the arbitration are not relevant. As I have already stated, the grievant contests that the grounds for referring the recommendation back to the SSC as fair, reasonable, justifiable or legal.
6.2.5 In their written submissions, SADTU referred me to the Promotions Procedure Manual 97/98, which is a binding document of the KZN Chamber of the ELRC. It deals specifically with the grounds on which a SGB may reject a recommendation of the SSC. Firstly, there must not be a points difference of more than give points between the recommended choice of the SSC and the choice considered by the SGB. Secondly, assuming the points difference is less than five there are three grounds on which the SGB should base their consideration: sound education requirements; adhering to demographic representation and; consideration of gender balance.
6.2.6 During the conciliation meeting SADTU referred to these grounds set out in the Promotions Procedure Manual as being the only grounds upon which a SGB could refer a recommendation back to the SSC. This was not contested by the Department. At no stage during these disputes resolution proceedings, either at conciliation or arbitration has the Department, correctly in my view, challenged the applicability of the Promotions Procedure Manual or attempted to argue that there are any other grounds upon which a recommendation may be referred back.
6.2.7 Neither the Department nor the SGB, which in terms of the South African Schools Act No 84 of 1996, is tasked with making recommendations to the HOD on the appointment of Educators, lead any evidence to show that in rejecting the SSC’s recommendation, education requirements, demographic representation or gender balance were taken into consideration.
6.2.8 In the circumstances it is evident that the SGB acted in contravention of the Promotions Procedure Manual. I should also record that at the conciliation meeting it was common cause between the parties that the reconstituted meeting of the SSC on June 5, 1998 was not a meeting of the SSC in view of the fact that the observers had not been notified.
6.2.9 I agree with the submissions of SADTU that it was nothing more than a side meeting of the SGB. Mr Moodley also made this point in the Department’s written submissions.
6.2.10 The question which I have to decide is whether the objections raised by the SGB were fair, reasonable and justifiable grounds for refusing to ratify the SSC’s choice of the grievant as top candidate. There is indisputable evidence that when the SSC chose the grievant as top candidate: they knew that his wife was a teacher at the school; they knew that the was an ANC Councillor; they knew that he was an Executive Member of SADTU.
6.2.11 Notwithstanding the above he was their first choice. Furthermore, it is clear from the minutes of the meeting of June 5, 1998 that they satisfied themselves that he had the necessary managerial experience.
6.2.12 The SGB did not undertake the interviews. Therefore, it is not in a position, nor does it have the right to review decisions diligently made by the SSC, except to a limited extent as provided for in the Promotions Procedure Manual.
6.2.13 The remaining two objections are that the selection process was irregular because of the relationship between the grievant and the Chairperson and that Mr Reddy would not be acceptable to the staff. With regard to the former I have already found that the Department has failed to prove that the selection process was irregular. Concerning the latter, it is evident from the minutes of the ratification meeting on June 5, 1998 that the grievant was, according to the staff component, unacceptable to the staff because of his wife’s employment at the school and because of his involvement with the ANC and SADTU.
6.2.14 In my opinion, the only legitimate concern raised by the SGB relates to the grievant’s wife’s employment at the school. However, if that had been their only concern and objection I have no doubt that creative attempts would have been made to resolve it. The grievant could for example have been asked whether his wife would consider a transfer to another school.
6.2.15 I find therefore, that the objections raised by the SGB, in rejecting the SSC’s recommendations, were unfair, unreasonable and unjustifiable.
7 . FINDING BE UNFAIR DISCRIMINATION
7.1 My third term of reference is a question of law, namely whether given the facts as found, there was unfair discrimination against the grievant.
7.2 I find that Mr D Reddy was unfairly discriminated against by the SGB in not recommending him to the Department of Education for the post of principal. I am satisfied that he was rejected primarily because of his wife’s employment at the school and because of his involvement with the ANC and SADTU. However, for the purposes of this award I will base my finding solely on the arbitrary discrimination against him on the grounds that he was an ANC Councillor and an Executive Member of SADTU.
7.3 Had this discrimination not taken place the would in all likelihood have been appointed principal by the Department.
8 . DETERMINATION
8.1 My powers are to determine this dispute on terms I deem reasonable including the ordering of reinstatement or compensation - item 4(1), schedule 7 of the LRA. Reinstatement does not come into play in this case.
8.2 SADTU representing the grievant argues that I have the power to appoint Mr Reddy to the post, presumable on the basis that, that would be a reasonable and fair manner in which to determine the dispute.
8.3 The Department contends that the selection process is still incomplete since the SSC, properly constituted with observers, has not yet met. Their argument is that the Department, other than in exceptional circumstances, may only act in making an appointment in terms of section 6(3)(a) of the Employment of Educators Act of 1998 and the SA Schools Act of 1996, after the SGB has ratified the recommendation from the SSC.
8.4 The Department acknowledges the provisions of the Education Laws Amendment Act of 1999 which inter alia amends section 6 of the Employment of Educators Act empowering the Department to make an appointment if a SGB has failed to do so within a period of six months. However, the Department is concerned that the amendment is not retrospective and, furthermore, for reasons not explained does not seem to feel that the SGB is at fault for the delay.
8.5 Therefore the Department is not empowered to appoint. Since the Department does not have the power to appoint, so the argument goes I too do not have the power to either appoint or order it to appoint.
8.6 Notwithstanding the fact that in my view the behaviour of members of the SGB during this entire incident has much to be desired I do not believe that a reasonable outcome of this dispute would be Departmental intervention resulting in the appointment of Mr Reddy to the post of principal of S M Jhavary Primary School. It is therefore not necessary for me to consider and decide upon the retrospectivity of Act No. 48 of 1999.
8.7 I was impressed with Mr Reddy as a witness. He struck me as an intelligent and sensitive man. He has been in the employ of the Department for 25 years and at the beginning of this year was promoted to Head of Department. I have no doubt that he has the diligence and determination to achieve further promotion. My concern is that if he were to be appointed as principal of JMJ, against the wishes of the SGB, particularly against the background of the past two years, he may well be set up to fail, notwithstanding his own qualities.
8.8 In support of my thinking I should point out that I have not been able to find a single reported case of the Labour Court or the Labour Appeal Court where with similar facts the court appointed or ordered the employer to appoint the applicant.
8.9 In my view an appropriate remedy would be compensation. The question, though, is whether I can order the Department to pay compensation to the grievant on the strength of discrimination perpetrated by a SGB. There can be no doubt that the Department is legally responsible for the actions of SGB’s which are undertaken in terms of the SA Schools Act. A SGB is a statutory body elected to govern a school. Its general purpose is to perform efficiently its functions in terms of the SA Schools Act on behalf of the school, which is a public school (Section 16).
8.10 One of its functions, or managerial duties, is to participate in the process of appointing educators (Section 20). It exercises this managerial duty on behalf of the Department. The SA Schools Act, sections 22 and 25, enable the Department to take action against a SGB which is not performing.
8.11 Therefore, the Department is, in these circumstances, liable to pay compensation to Mr D Reddy, against whom the SGB committed an act of unfair discrimination.
8.12 The only outstanding issue is computation of the compensation. In this regard I have taken into account the approach adopted by the Labour Court in the case of Whitehead v Woolworths (Pty) Ltd 1999 LC. One of the questions, which the court had to consider, was the basis for computing compensation. In this regard the court stated, and I quote:
“Item 4 of Schedule 7 of the Labour Relations Act empowers this Court to order compensation in disputes about unfair labour practices. There is no limited prescribed to the amount of compensation I may order nor is there any basis set out in the Act upon which I may calculate an appropriate compensation. It is therefore left to this Court to decide what principles it would apply in determining the compensation. The only condition being that the Court must be satisfied that the compensation ordered is fair and reasonable.”
8.13 It is evident from the above that in determining what is a fair and reasonable amount, computation should not be based on purely patrimonial or actual loss. This was emphasized in the judgement. Over and above consideration of financial loss the Court also took into consideration, the actions of the employer as well as the nature of the unfair labour practice.
8.14 In coming to an amount, which in my view would constitute fair and reasonable compensation, I have taken the following into consideration:
8.14.1 The fact that the grievant lost some income during the past two years as a result of him not being appointed to the post. I have taken account of the fact that at the beginning of this year he was promoted to Head of Department.
8.14.2 The fact that he has been in the employ of the Department for 25 years and from all accounts has been a loyal, conscientious and dedicated educator. Against that background he has, in my view been treated appallingly by the SGB of S M J Primary School. He has ben the victim of an incompetent, dishonest and hypocritical SGB which was tasked with the responsibility of managing a public school on behalf of the Department of Education.
8.14.3 The failure of the KZN DE to proactively intervene, thereby bringing an end to an unnecessarily long period of professional uncertainty for the grievant. As I have already mentioned, the SA Schools Act empowers the Department to act against a SGB, which is failing in its duties. This is particularly pertinent since the Department seems to be of the view that the SGB had been unlawfully constituted.
8.15 Taking the above factors into consideration, the Department is ordered to pay the grievant compensation in the amount of R100 000,00.
______________________
Arbitrator
BRIAN CURRIN
4 August 2000
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES KZN
APPLICANT D REDDY
RESPONDENT KZN DEPARTMENT OF EDUCATION AND CULTURE
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR BRIAN CURRIN
DATE OF ARBITRATION 4 FEBRUARY 1999
VENUE KWAZULU-NATAL
REPRESENTATION:
APPLICANT MR GCWABAZA
RESPONDENT M M MOODLEY
AWARD:
Taking the above factors into consideration, the Department is ordered to pay the grievant compensation in the amount of R100 000,00.
DATE OF AWARD 4 AUGUST 2000