Case Number: PSES 10/98 0432 KZN
Applicant: ODETTE R ABRAHAMS
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 8 January 2001
Arbitrator: MAHENDRA R CHETTY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 10/98 0432 KZN
In the arbitration between:
ODETTE R ABRAHAMS FIRST APPLICANT
APEK SECOND APPLICANT
DEPARTMENT OF EDUCATION(KWAZULU-NATAL) RESPONDENT
1 . REPRESENTATION
1.1 The Applicant, Mrs Odette Rita Abrahams, is an educator as defined in the Educators Employment Act and is presently employed as the Deputy Principal of Assegai Primary School in the suburb of Wentworth, south of Durban. Mr A Pierce of APEK represents the Applicant in these proceedings. The Respondent is represented by Dr Nzama, assisted by Mr Ngcobo and Ms Maphumulo. The issue referred to arbitration in terms of paragraph 1,2 (h) of Resolution 7 of 1997 of the Education Labour Relations Council, is an alleged unfair labour practice dispute as contemplated in Schedule 7, Item 1 of the Labour Relations Act.
1.2 The issues for determination in these proceedings is whether the Respondent acted in a manner which was procedurally fair in not appointing the Applicant to the post of Principal at Assegai Primary School and whether the School Government Body acted in a procedurally fair manner in overlooking the Applicant for the post of principal. The Applicant seeks to set aside the appointment of the incumbent, Mr Webster, and asks that the process of appointing a principal for Assegai Primary commence de novo. The Respondent on the other hand contends that there was no unfairness in the process of nominating and appointing the principal of Assegai Primary School.
1.3 At the commencement of the proceedings both parties submitted bound volumes containing the relevant documents in substantiation of their respective cases. I am indebted to them for their assistance to record that on 8 December 2000 the matter was enrolled for hearing. After certain factual enquiries undertaken by me, it emerged that no notification had been given to the Governing Body of Assegai Primary nor to Mr T Webster, the present principal whose post is being disputed, of these proceedings. This, in my opinion, is a task for the Respondents to take in all matters where the conduct of the Governing Body is being challenged, and more particularly where the rights of another individual may be adversely affected by a ruling from the arbitrator. At the very least, I am of the view that the incumbent principal as well as the Governing Body had a legitimate expectation to have been notified, and thereafter to have determined whether they intended to oppose the application. As a result, the proceedings were postponed to enabled adequate notice to be given to all affected parties. On 14 December 2000 the proceedings commenced only after the Respondent’s representative confirmed that Mr Webster and the Governing Body had been advised of the nature of proceedings and the specific relief being sought by the Applicant.
1.4 The Respondent did not consider it necessary to secure Mr Webster as a witness. The only witness for the Respondent was Mr A Leslie, the chairperson of the Assegai School Governing Body. The Applicant herself testified, as well as three witnesses - Mrs Choudree, Mrs Julius and Mrs Marian. The Applicant attempted to introduce into evidence an affidavit by Mrs Dawn Peffer, the secretary of the school and a member of the Governing Body. Peffer made various allegations regarding the process leading to Webster’s appointment. However, I ruled that the affidavit would not be admitted into evidence, as there was a valid reason as to why Peffer was not available to testify and be subjected to cross-examination.
2 . BACKGROUND TO THE DISPUTE
2.1 The Applicant has been an educator for 20 years and the Deputy Principal of Assegai Primary since January 1994. The serves as the secretary on the School Governing Body. Following the advertisement of promotion posts in 1997, the Applicant applied for the advertisement post of Principal at Assegai Primary (No 914, North Durban Region). Together with the Applicant, three other educators from Assegai Primary applied for the same post. In terms of Resolution 11 of 1997 of the KwaZulu-Natal Provincial Chambers of the Education Labour Relations Chamber, certain practices and procedures were negotiated and agreed to between the employer and employee sectors in respect of the criteria for short-listing and interviewing applicants. These procedures are contained in a document issued by the Directorate of Promotions : Department of Education & Culture (KZN) titled School Based Posts - Short listing and Interviewing: Procedures and Practices. The document is dated October 1997. It is common cause that the Government Body of Assegai Primary was invited to attend a workshop aimed at familiarising them with the procedures for nominating personnel to vacant positions at the school. It is common cause that the Governing Body established an interviewing committee for the purpose of short-listing applicants for the vacant post of principal. At this time, Mr T Webster, who was also an Applicant for the vacant post of principal, was holding the post of Acting Principal. The selection committee received 68 applicants and proceeded to shortlist 13 applicants. The interviewing committee consisted of Messrs Leslie (Chairperson of the Governing Body), Mrs Tarrin, Mr P Canham, Mr Emmanuel and Mr Malgas. At some stage during the process, Mr Hartze, a member of the governing body was co-opted onto this committee. The Applicant raises this as a point of unfairness with reference to section 6.1 of the Procedures and Practices Manual. I shall deal with this aspect later in the judgement.
3 . THE EVIDENCE
3.1 On the evidence of the Respondent’s witness, Mr Leslie, it appears that although the interviewing committee met over a period of three days, not all the members of the committee were present on each day. Moreover, although the presence of the Departmental representative is required during the process (in terms of section 6.1.3 of the Procedures and Practices circular), it is also common cause that the representative, Mr Naidoo, was only present for a few hours on the first day of the processes. He apparently left early, feeling reasonably satisfied that the process was being conducted according to the established and negotiated guidelines. The Department concedes in its written submissions that the Departmental representative was not present when the Applicant was interviewed.
3.2 During the course of the interviews, Mr Leslie testified that a member of the interviewing committee, Mr Manual, logged the scores of the respective candidates into his computer and thereafter generated an average score per candidate. It is also not in dispute that Mr Emmanuel and one other member of the committee were absent on more than one day during the interviewing process. It was during this stage that Mr Hartze was co-opted onto the committee during the absence of either Mrs Tarrin (who emigrated to Australia) or Mr Manual or Canham. The Applicant raises the inconsistent composition of the panel (which necessarily impacts on the manner of scoring candidates) as a ground of procedural irregularity. She also contends that it was irregular for the committee to co-opted Mr Hartze onto the panel.
3.3 Section 6 of the Short-listing and Interviewing Procedures and Practices Circular deals with the persons who comprise the selection committee. It states in clear terms that it should consist of either three or five persons, including a chairperson and two or four members. It further provides for the inclusion of the principal or acting principal (unless such person is an Applicant) and a Departmental representative. Provision is made in section 6.1.4 for another person to deputise for the chairperson if the latter is unavailable. Section 6.2 also provides for the committee to co-opt persons from outside the Governing Body, based on necessary expertise required.
3.4 In dealing with the contention that the composition of the panel was inconsistent and irregular, the Respondent submits that “the fact that some members of the Committee could not be available for some interviews does not constitute non-compliance”. It submits further that there is not clause in the Manual that “makes it imperative for all members to be present before the process may continue”. In regard to the co-option of Mr Hartze onto the panel, the Respondent contends that section 6.1.4 provides that “a new person may be brought in”. The Respondent, with respect, appears to have selected only portions of the Practices Manual, which would appear to favour its version. Section 6.1.4 only applies to the deputisation of the Chairperson. The facts in this arbitration do not relate to the absence of the chairperson. Further, as regards the application of section 6.2 and Mr Hartze’s involvement, no evidence was led as to what special expertise Hartze possessed or which he brought to the process.
3.5 Whilst the selection and interviewing process was taking place, two union representatives, Mrs Julius and Mrs Marion were present throughout as observers to the process, such post being catered for in Section 9.3 of the Practices and Procedures Manual. Mrs Julius is a member of SADTU and Mrs Marion of APEK. At the conclusion of the process both observers recorded their unhappiness with the procedures being followed. This was evident from the Interview Assessment form handed in as an exhibit where Mrs Julius records “The process has not been fair and just”. Marion records on behalf of APEK that “There has (sic) been irregularities in scoring of interviews”. Although both observers signed the EC4 Form following the interviews, they were adamant that they did not consider the process to be fair. The Applicant contended further that the composition of the panel was irregular as no secretary had been appointed and therefore no minute were kept as to how the candidates responded at the interviews. Mrs Marion however kept her own contemporaneous notes in a book, which she produced at the arbitration. Although the notes reflect her opinion of the candidates, it was clear from a perusal of the notes and scores that Mr Webster did not fare well with her. As the Respondent correctly submits, Mrs Marion is merely an observer and is not responsible for scoring of candidates. However, her opinion becomes relevant as the observers (Marion and Julius) were present when the scoring of the candidates was discussed and they contested the high score given to Mr Webster, following upon what both Julius and Marian regarded as a less than average performance at the interview. It is important to note that the Practices Manual recognises the importance of the role of the observer from registered Teacher Organisations. Section 9.3.2 provides that “The observer will not be directly involved in the process of short-listing and interviewing but will note that approved procedures and practices are adhered to in a fair, consistent and uniform manner”. Section 9.3.3 grants to an observer the right to intervene where he or she deems that an infringement has occurred. On the basis of the evidence before me, I am of the view that the observers did not venture outside the parameters mentioned in the Manual. Their actions in voicing the objections were consistent with the powers granted to them.
3.6 Marion further testified that on the first day of the interviews, that is 7 June 1998, three members of the committee were present, followed by four each on the 8th and 9th June 1998. Both observers testified that the process of interviewing the candidates appeared to be a sham as the panel was clearly of the view that Webster was the best candidate, despite his difficulty in answering questions and having a less than impressive Curriculum Vitae. Moreover, she testified that a panel member, Mr Malgas, suggested during a tea adjournment that he knew that Webster would be the successful candidate, even before the scoring had been completed. Apart from the above, Marian and Julius testified that the panel had awarded Webster an outrageously high score. They were of the view that other candidates such as the Applicant and a Mr P Bishop were more competent and knowledgeable than Webster. At the end of the interviewing process the committee gathered to determine their scoring of the candidates. Once Webster’s score had been released, Marian and Julius objected. In light of the objections, the committee reduced the score to 35, the same as Mr Bishop. The Applicant’s score remained at 34, however the committee placed her second, apparently on the basis of affirmative action, in light of her gender. The Applicant disputes her scoring as compared to the Applicant and alleges that there was no consideration of any affirmative action measures, as the school has never had a female principal. According to Mr Leslie, although the Applicant scored less than Bishop she was placed second in order to ensure that the gender imbalance was redressed. It emerged that the Committee decided to chose Webster ahead of Bishop on the grounds that the latter had only secondary school experience. I am not convinced that such reasoning is logical, however I do not consider it necessary to make any decision on this issue.
3.7 Section 3.3 of the Manual requires that the committee appoint a candidate who is the most competent, enthusiastic, dedicated, committed, knowledgeable, innovative and experienced educator as Principals and Deputy Principals in order to achieve the necessary equity and transformation. After the process was completed on 15 June 1998 Webster was offered and accepted the nomination to the post of principal. On 15 June 1998 Marion addressed a fax to her union, APEK, recording her dissatisfaction with the process. She records in her fax “I feel that my observing at the selection committee of Assegai Primary School was all in vain and fruitless. They - the selection committee knew from day one who their choice of principal at their school would be and I feel those days and nights from 27:05:98 to 09:06:98 were wasted and not fair to all sixty eight applicants”.
3.8 On 13 June 1998 the Applicant, presumably with some knowledge that the committee has already made its choice of candidate, lodged a grievance at the irregular procedure followed during the selection process. The Applicant cited various grounds of irregularity, including that the preferred choice of the committee, namely Mr Webster, had attended an interviewing workshop held by the Respondent and was therefore a distinct advantage over the other candidates. The Respondent submitted that Webster attended the workshop as acting principal. In doing so, he broke no law or procedure. The workshop was held for the benefit of school governing bodies and specifically provide “uniformity and consistency” on the questions for the interviews. The workshop, on the basis of the Guidelines submitted as an exhibit, dealt with issues such as scoring of candidates and suggested questions to candidates. At a meeting of the Governing Body on 26 November 1997, the Applicant raised the issue of the inappropriateness of Webster attending the workshop. This is reflected in the minutes of the Governing Body meeting. According to the Applicant’s testimony, Webster assured the meeting that he would not attend the workshop. In my opinion, while it is correct that Webster broke no law in attending the workshop, I am of the view that his attendance created the perception that he received an unfair advantage over the other candidates for the post. After being made aware that he ought not to attend, he should have anticipated that other candidates would have been suspicious of his attendance. I will return to the effect of his attendance on the entire process.
3.9 A further issue raised by the Applicant was that after the interviewing process had been conducted, Webster was seen in the company of Mr Leslie pn 23 June 1998 photocopying the scores and CV’s of the Applicant and other interviewees. The Applicant contends that this was a breach of confidentiality and questions the bona fides of the gentlemen involved. This is not one of the issues referred for determination and in any event falls outside the scope of the alleged unfair labour practice. I therefore do not consider the issue as relevant for this determination.
4 . NON COMPLIANCE WITH STANDARDS?
4.1 The Respondent concedes that while there was no “absolute compliance with the Procedure Manual (by the Staff Selection Committee) there was substantial compliance and to that extent Mrs Abrahams was not denied just administrative action in terms of section 33 of the Constitution”. In determining whether the Staff Selection Committee acted in accordance fairly towards the Applicant, I am of the view that the selection process must be viewed in a holistic manner, having regard to the circumstances at the time. It is common cause that the selection process was the first in which the Governing Body of Assegai Primary had been engaged. The SA Schools Act has ushered in a new era of participatory democracy in the education system. For this reason as well, the system whereby educators were appointed was open and transparent, including the assistance of observers from teacher organisations. It is clear from the facts that the Selection Committee had not followed many of the provisions of the Procedures Manual. Is the inconsistent number of members on the panel or the attendance of Webster at the interviewing workshop or the comments of Mr Malgas or the objections of the observers individually decisive of the dispute? In my view, the correct approach is whether viewed as a whole, the selection process deviated from the prescribed norm to the extend that it can be reasonably said to be prejudicial to the Applicant. As in criminal law, I would suggest that the test is whether there was a miscarriage of justice.
4.2 As I have already stated, the attendance of Mr Webster at the Departmental workshop was ill advised. It is not necessary to determine the extent to which he benefited from attending. The implications from his attendance cast doubt on the eventual selection process. The variation in the numerical composition of the panel, in my view was crucial. One cannot allow a situation to exist where the Head of a school is being appointed by a panel, which changes from day to day. There is no consistency and uniformity - the benchmarks of a fair selection process. The co-option of Mr Hartze onto the panel was another strange factor. Even though his inclusion may have been well intended, the Selection Committee was performing a quasi-administrative function. It is not open to change in number and personnel for any reasons other than those permitted by the Chamber. The Respondent has suggested in argument that the provisions of the Procedures Manual are directory and not peremptory. Whilst that may be correct (see Douglas Hoërskool en Andere v Premier, Noord-Kaap 1999 (4) SA 1131 NKA), the Respondent cannot seek to avoid compliance with its own standards. In any event, whilst the Respondent relies on Douglas (above), it should be noted that the facts in that case are different from the present case. In that case, the Court accepted that the Governing Body did not have to interview candidates who did not meet the official requirements (academically) for the post. The Court set aside the decision of the Head of Department and appointed the candidate chosen by the Governing Body.
5 . CONCLUSION
5.1 In light of the evidence before me, I find that the nomination of Mr Webster as the Principal of Assegai Primary School and his eventual appointment by the Department, was unfair and deviated in material and fundamental respects from the norm. The incumbent, Mr Webster, was notified of these proceedings and the relief being sought. It is not open (on the facts) to me to appoint either the Applicant or any other person to the position of principal. The legislature has developed that role to the school governing bodies. Accordingly, I make the following finding:
5.1.1 The decision of the Staff Selection Committee of the Governing Body of Assegai Primary, Wentworth to nominate Mr Webster as the principal is found to be unfair and is accordingly set aside.
5.1.2 The process to appoint a principal must commence de novo, in the manner and form as prescribed by law.
5.1.3 That the Staff Selection Committee, as far as practically possible, comprises persons with no involvement in the initial selection process.
5.1.4 No order as to costs.
MAHENDRA R CHETTY
Date : 8 January 2001
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 10/98 0432 KZN
APPLICANT ODETTE R ABRAHAMS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR MAHENDRA R CHETTY
DATE OF ARBITRATION 8, 14, 15 DECEMBER 2000
APPLICANT MR A PIERCE
RESPONDENT DR NZAMA
1 The decision of the Staff Selection Committee of the Governing Body of Assegai Primary, Wentworth to nominate Mr Webster as the principal is found to be unfair and is accordingly set aside.
2 The process to appoint a principal must commence de novo, in the manner and form as prescribed by law.
3 That the Staff Selection Committee, as far as practically possible, comprises persons with no involvement in the initial selection process.
4 No order as to costs.
DATE OF AWARD 8 JANUARY 2001