Case Number: PSES 01/2000 013 WC
Province: Western Cape
Applicant: E M C BOOYSEN
Respondent: DEPARTMENT OF EDUCATION WC
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 12 December 2000
Arbitrator: J KALIDEEN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 01/2000 013 WC
In the arbitration between:
E M C BOOYSEN APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . INTRODUCTION
This arbitration, concerning the alleged unfair supernumeration of Ms E Booysen from her post as remedial teacher at Dirk Boshoff Primary school, was held in George on 6 March 2000. The Applicant was represented by Mr Leonie of the Cape Teachers’ Professional Association (CTPA). Mr Faker represented the Western Cape Education Department (WCED).
2 . ISSUE IN DISPUTE
2.1 The issue in dispute is whether the decision to declare Ms Booysen supernumerate was properly and fairly taken. This depends on whether the prescribed process was adequately followed, particularly with regard to the requirement of union observation of these decisions and potential bias on the side of the persons making the decision.
2.2 A number of substantive issues, particularly with regard to her qualifications and the value of extra-mural activities, were also argued during the course of the arbitration.
3 . EVIDENCE
3.1 Common Ground
3.1.1 Ms Booysen is employed as remedial teacher at Dirk Boshoff Primary School in Uniondale. As earlier decision to declare her supernumerate was set aside during arbitration, because there were no union observers present.
3.1.2 A second exercise was held. Again the decision was that she was the excess educator on the staff. There is no dispute that one of the posts of remedial teacher was supernumerate.
3.1.3 The process followed in this second process amounted to a consultation process with the staff, held on 22 April 1999. During this meeting the staff recommended that one of the remedial teachers’ post should be declared in excess. No other recommendations were made.
3.1.4 Another meeting was held on 7 May 1999 in order to decide which one of the two remedial teachers should be declared in excess. This meeting was attended by the Circuit Manager (Mr Gunther), the Principal (Mr Jacobs), and the Assistant-Principal (Mr Du Plessis). Also present were representatives of the two trade unions, Mr Mitchell (SADTU) and Ms Loff (CPTU).
3.1.5 The minute of this meeting shows that Mr Mitchell reported that the staff recommended that only one remedial teacher be retained. The meeting then evaluated the two educators. In many ways they were the same, from educational qualifications to length of service. The meeting then turned their attention to other activities. Here they found that Ms Muller was involved in coaching netball, as well as cultural activities. Ms Booysen, on the other hand, was not involved in any extra-mural activities. On this basis the meeting declared Ms Booysen in excess.
3.2 Areas of Divergence
3.2.1 The union denied that :
220.127.116.11 the educational qualifications of the two educators were the same;
18.104.22.168 Ms Booysen was not involved in extra-mural activities;
22.214.171.124 Ms Loff was a properly mandated trade union representative.
3.2.2 It argued that, not only did the Circuit Manager and Principal err on those three grounds, they were not in a position to sit in such a meeting due to the fact that she had decided a number of disputes against both of them. By implication, they should have recused themselves from the meeting.
126.96.36.199 Educational Qualifications
On 21 April 1999 (not 12 April as the union argued) the Randse Afrikaanse Universiteit awarded a Verdere Diploma in die Onderwys, Remediërende Onderwys (Further Diploma in Education, Remedial Teaching) to Ms Booysen. This was an additional qualification when compared to the educational qualifications of her competitor. Although she did not have the actual diploma in her possession on the date of the meeting, she had submitted all her subjects passed to the Circuit Manager.
188.8.131.52 Extra-mural Activities
Ms Booysen used to be involved with netball
4 . TERMS OF REFERENCE & POWERS
4.1 The arbitration was conducted in terms of an agreement reached between the Applicant represented by Mr P Maharaj and the Department of Education after an unsuccessful conciliation process.
4.2 I am required to determine, based on the evidence presented in the arbitration :
4.2.1 There is a fair cause to make a finding of an Unfair Labour Practice.
4.2.2 What sanction or remedy is fair.
4.2.3 Whether the employee had a fair opportunity to state his case.
4.3 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 to them.
5 . EVIDENCE & ARGUMENT
5.1 Union’s Contention
5.1.1 The Applicant testified that he was an experienced Level 1 teacher, with 13 years of experience. He had 8 months of acting HOD management experience (with administration and management), organisation and professional development experience, with community related/extra mural activities.
5.1.2 The Union also referred to the post of 442 whereby the Applicant argued that the chairperson of the Governing Body (Henry) was not aware that the had applied for the post of Deputy Principal when he queried his application for this post.
5.1.3 He also argued that on 15 November 1999 he lodged a dispute with the Department and that the 2 posts 442 & 2772 were filled on 15 December 1999 in spite of the ruling that posts must be frozen until disputes lodged are resolved.
5.1.4 This dispute was re-lodged on 15 December 1999 when the announcements were made. It was also argued that in January 2000 the Department (Dlamini) denied that any disputes were lodged regarding this post and the Applicant then wrote to the Minister on 20 March 2000, which then resulted in a response from the ELRC (20 April 2000) taking the mater to conciliation.
5.1.5 Under cross-examination the Applicant agreed that he only acted for 8 months and his entitlement to short-listing was his performance levels and the positive comments from the Department during this acting period. He agreed that he did not fall into the category “acting for greater than 2 years in a continuous period”. He argued that he was historically disadvantaged and therefore should be short-listed for the post 442.
5.1.6 Under cross-examination he also acknowledged that his Union representative was not a “Teacher” organisation representative, which only included 3 representative unions. He also acknowledged that there were only 4 members present when he was interviewed and 5 members for the other candidates interviewed. The notification period was 1 day and he was informed verbally and that he agreed to attend the interview and availed himself for the interview. The witness stated that the co-opted member was scoring and allocating points at the interview process and that this Governing Bogy member had no voting power on the Governing Body as a co-opted member. The witness under cross-examination stated that it was not fair that he was not short-listed for the interview as he acted in the post. He submitted that Mr Murugan, a member of the interview committee was not present at all 6 interviews and that 2 Members who were co-opted were given full voting right.
5.1.7 In closing the Union argued that the Department acted unfairly in the interview process and in the short-listing process.
6 . EMPLOYER’S CONTENTION
6.1 The employer called in 1 witness, Sister Margaret.
6.2 In her evidence in chief, the witness stated that she is a Guardian at the Home and was a Governing Board member. It was argued that the interview committee was prepared for the interview process at a 1-day workshop on the procedures for the process, which included : committee set up; CV short-listing; selection of top 50 and interview process. The Departmental representative gave her over the shoulder training in an afternoon session, as she did not attend the workshop. This witness was a Governing Body member for 2-3 months at the time of the interview.
6.3 The witness also confirmed that the Applicant was informed verbally of the interview on the day before the interview process and that the Applicant availed himself at the interview with no objection.
6.4 The witness testified that there were about 300 applications for the Deputy Principal post and the Applicant was short-listed in the top 10 before the final list of 5 was arrived at and the Applicant was not in the top 5 for interviewing.
6.5 The witness maintained that there the scoring was done individually and the scores were then averaged after the interviews and the average score were not really impacted upon by the absence of 1 panel member as the number of panel members present at the interview divided the total scores of the interview panel members. The averaging of scores did not impact on any interviewee.
7 . ANALYSIS OF EVIDENCE & ARGUMENT
7.1 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 short-listing and interview process. My findings are as follows :
7.1.1 I accept the argument of the Department that in terms of the rules that there is an automatic short-listing of an Applicant if he or she acted in a post for a continuous period of greater than 2 years. I acknowledge the argument of the Applicant that he acted for a period of 8 months and his entitlement to short-listing was his performance levels and positive comments from the Department during this acting period. He agreed that he did not fall into the category “acting for greater than 2 years in a continuous period”. He argued that he was historically disadvantaged and therefore should be short-listed for the post 442. I accordingly do not accept that acting for 8 months is a good enough reason to shortlist and the criteria for short-listing in the procedures manual is well documented and transparent. The Department did not act unfairly in this instance.
7.1.2 I now refer to Head of Department post. The Applicant was informed verbally one day before the interview process of his interview, which is not accordance with the rules. He did accept this notification and did not object to the short notification period and attended the interview process. He was aware that he could object to the short period and acknowledged in his evidence that there were time constraints regarding the appointments to meet the Department’s deadlines. This maybe perceived as a contravention of the 5 day written notice period required in terms of the procedures manual, however, the Applicant availed himself for the interview with no objections.
7.1.3 I accept the Department’s arguments and agree that the Union representative was limited in terms of an agreement and the Applicant’s union representative was not legitimately listed and therefore the Department was not obliged to allow the Applicant’s representative as requested.
7.1.4 I now refer to the interview process. This interview process was flawed from the outset. I do not accept the Department’s arguments that there is no rule in the manual that states that all panel members must be present at all interviews. The absence of one interview panel member affects the consensus scores and this inconsistent panel composition makes the interview process unfair and most definitely prejudices any interviewee. The Department’s witness admitted that one panel member (Murugan) missed 2 interviews and I accept that this prejudiced the interviewees. The witness also corroborated with the Applicant that Mr Murugan was not part of the committee that interviewed the Applicant and that 4 members interviewed the Applicant only. I accept that the questions at the interview panel were consistent apart from the general questions that varied according to the panel members seeking clarity, which I agree with. I do not accept the witness’s testimony that a lot of other criteria were also used, which included personality and attitude measurements. These are subjective measurements. The criteria set out is very specific and is leadership, organization ability, professional development and community contributions.
7.1.5 There was some confusion by the witness regarding the scoring process and what was to be scored. According to this witness “Seniority” was a criteria and OBE, extra mural and conflict management were evaluated including attitudes and behaviours. However, I must point out that attitudes and behaviour measurements at an interview are subjective measurements.
7.1.6 This witness was not credible and was conflicting in her evidence. She did not present a clear and consistent version of the interview process. According to her there were general questions apart from the planned questions and the Applicants were therefore subjected to a different panel and different questions.
7.1.7 I accept and agree with the Department that all selection committee members have to score and arrive at a decision to rank all interviewees.
7.1.8 I do not accept the Department’s arguments that the interview panel members must score individually and average out the scores as opposed to arriving at a consensus score. There is a vast difference between average and consensus scores and average scores are not necessarily consensus scores and average scores were used to arrive at a decision for the HOD post. This is contrary to the Procedures Manual.
7.1.9 I am silent on the matter regarding Catholics being appointed to the promotion posts, as the Applicant himself is a Catholic.
7.1.10 I do not accept the argument that the one afternoon over the shoulder briefing was sufficient training for a targeted selection interview process, which resulted in confusion in the ind of the witness regarding what was being measured, and that the training was irrelevant as a resource person was always available for clarification if necessary. The witness measured seniority, attitudes, behaviours, and “lots of other criteria”. She also saw no harm in the one missing panel member ratifying the ranking and the decision to appoint at the ratification process was seen as fair and yet his absence at the interview process was acceptable. The witness also was party to the averaging of scores according to the number of panel members when in fact there should have been consensus scores. Average scores do not equal consensus scores.
7.1.11 I now refer to the criteria not given: The criteria is well documented for short-listing and the Applicant was short-listed according to the procedures and the curriculum vitae submitted made no mention of his acting in the post which he failed to document. I am however, not convinced that the interview panel were not aware that the Applicant did in fact act for a period in the post over a period of 8 months and also there were no departmental records of him acting. There maybe no formalised documents to this effect but he did in fact act for the period.
7.1.12 There was no legitimate expectation by the Applicant because he acted for a period of 8 months. Acting in a post is not a guarantee for short-listing and an interview. This has been covered sufficiently above.
7.1.13 I now refer to the dates of the disputes. I accept that the Applicant and his representative had formally lodged their dispute and there was documentary evidence presented proving conclusively that there was a dispute lodged and yet the Department went ahead and made an appointment on 15 December 1999. I have taken into cognizance the case referred to by the Department which restricts the setting aside of appointments dependent on the merits of the case. In this instance there was a violation of the rules and this very violation resulted in a procedurally unfair interview process and prejudiced the Applicant.
8 . AWARD
8.1 Issue 1:
8.1.1 That the Applicant was short-listed (final 10 Applicants) for the post of Deputy Principal but not interviewed for the post as he did not make the final shortlist (5 Applicants). Acting in a post for a period (8 months) less than 2 years does not automatically guarantee an incumbent short-listing and an interview.
8.1.2 The short-listing criteria, sifting and short-listing procedures and process is well documented in the Procedure Manual dated 20-22 September 1999 issued by the Human Resource Management with an automatic inclusion to an interview for acting for longer than two continuous years.
8.2 And there is no unfair labour practice.
8.3 Issue 2:
8.3.1 The interview process for the Head of Department post (2772) was procedurally unfair and prejudiced the Applicant resulting in an Unfair Labour Practice.
8.4 I accordingly award that the Department set aside the current appointment (post 2772), which was made after a dispute was lodged and re-interview the 6 short-listed candidates by a Fresh/New Interview Panel in terms of the Procedure Manual, dated 20/22 September 1999. This process to be finalized by 31 January 2001.
Date : 12 December 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 01/2000 013 WC
APPLICANT E M C BOOYSEN
RESPONDENT DEPARTMENT OF EDUCATION WC
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR J KALIDEEN
DATE OF ARBITRATION 6 MARCH 2000
APPLICANT MR LEONIE(CTPA)
RESPONDENT MR FAKER
1 That the Applicant was short-listed (final 10 Applicants) for the post of Deputy Principal but not interviewed for the post as he did not make the final shortlist (5 Applicants). Acting in a post for a period (8 months) less than 2 years does not automatically guarantee an incumbent short-listing and an interview.
The short-listing criteria, sifting and short-listing procedures and process is well documented in the Procedure Manual dated 20-22 September 1999 issued by the Human Resource Management with an automatic inclusion to an interview for acting for longer than two continuous years.
3 And there is no unfair labour practice.
1 The interview process for the Head of Department post (2772) was procedurally unfair and prejudiced the Applicant resulting in an Unfair Labour Practice.
2 I accordingly award that the Department set aside the current appointment (post 2772), which was made after a dispute was lodged and re-interview the 6 short-listed candidates by a Fresh/New Interview Panel in terms of the Procedure Manual, dated 20/22 September 1999. This process to be finalized by 31 January 2001.
DATE OF AWARD 12 DECEMBER 2000