Case Number: PSES 191WC
Province: Western Cape
Applicant: N G PYOOS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 1 May 2001
Arbitrator: T GOLDEN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: PSES 191 WC
In the matter between:
N G PYOOS APPLICANT
DEPARTMENT OF EDUCATION RESPONDENT
(WESTERN CAPE PROVINCE)
The arbitration took place on 19 March 2001 and 27 March 2001 at Grand Central Building in Cape Town. Mr Pyoos was represented by Mr Jacobs from SADTU and the Department was represented by Ms Yohani and Mr Petersen.
2.NATURE OF THE DISPUTE:
2.1 Mr Pyoos, the Applicant in this matter, referred the dispute as:
2.1.1 The reasons for the reversal of his appointment;
2.1.2 The reason for not implementing the outcome of the dispute;
2.1.3 The reason for not informing him about readvertising of the post;
2.1.4 Department officials being biased against him.
2.2 The relief that is requested from the arbitrator is to find that the initial nomination of the Applicant to the post must stand, alternatively that the second interview process be repeated.
2.3 I shall deal only with the salient features of the evidence presented - and shall refer to the bundle of documents handed in where necessary.
3.1 Mr Pyoos testified that he applied for the Principal’s post at Nlungile Primary School, post number 1515 and was invited for an interview. Subsequent to the interview, he received confirmation from the WCED that he had been successful. He indicated his acceptance in writing and was subsequently appointed as Principal from 1 July 1999 according to the telegram that he received from the WCED. On 17 July 1999, the first day of the school term, the Governing Body informed him that a dispute had been lodged against the post. According to this letter dated 2 July 1999 he was informed that a moratorium had been placed on the filling of the post until the matter has been resolved. He further testified that he spoke with Mrs Dwane at the WCED. Thereafter he received a letter from the WCED dated 16 September 1999 advising him that the dispute had been finalised and that the school Governing Body had been requested to repeat the process of nomination. According to this letter, the investigation revealed that a co-opted member of the school Governing Body actively took part in the nomination process contrary to the South African Schools Act. According to him, he laboured under the impression that the process would be repeated. He further testified that he wrote a letter to Mrs Bongo in which he voiced his dissatisfaction. He also sent a letter to Mrs Zille and to Mr O’Connell.
3.2 He further testified that he saw “by chance” in the Bulletin that the post had been readvertised. He was taken by surprise as he was under the impression that the process would be repeated. Despite his dissatisfaction, he testified that he formally applied for a second interview. At this interview, according to his evidence, the atmosphere was very cold and not conducive to a fair interview and free speech. He felt that he was not wanted in the interview. According to him, they only asked him four questions and he was not given an opportunity to sign the attendance register which concerned him.
3.3 He testified that his salary had been increased commensurate with that of the Principal post and subsequently reduced upon the outcome of the investigation.
3.4 Mr Pyoos also testified that he was telephonically informed by Mrs Dwane that she (Mrs Dwane) insisted that Mrs Mose must lodge a dispute. According to him, this was bias. He also testified that Mrs Dwane told him that she would ensure that Mrs Mose get the post. He further testified that at the first interview Mrs Mose was not present on the shortlist but at the second interview she was included. Mrs Bongo was present throughout the last interview and he felt that she also showed bias towards him,
3.5 Under cross-examination Mr Pyoos testified on a question as to why he waited so long to voice his dissatisfaction, he responded that he was waiting for the process to be repeated but that he was unhappy with the decision right from the start. He reiterated that in the interim he spoke with Mr O’Connell and Mrs Zillie. He also testified that he wanted a counter dispute lodged and wrote to Mr Shandukani in Pretoria many times and also spoke with Mr Faker at the WCED. It was also pointed out to him under cross-examination that his letter to Mrs Sille was dated 30 April 2000. When he was asked why he took so long to lodge a dispute at the stage of the first interview, he responded that Mr Shandukani from Pretoria did not respond and he did not know how to go about lodging a counter dispute.
3.6 He confirmed under cross-examination that he applied a second time in February 2000 when the post was readvertised. It was also put to him by the WCED’s representative that he was satisfied with the post being readvertised and with the Department’s decision in this regard. He responded that he was dissatisfied from the very beginning and he laboured under the impression that the process would be repeated.
3.7 He also testified about a public meeting that took place to discuss a certain situation which involved alleged embezzlement of money. In this meeting Mrs Dwane publically stated that she would ensure Mrs Mose would get the post. He also testified what supported his notion of bias was that he was initially not short-listed for the second interview.
3.8 When asked by the Chairpeson about the relief that he sought, he confirmed that he would like for his appointment as Principal to be confirmed as per the initial interview in 1999 and that the second interview procedure must be declared invalid.
3.9 Ntombi Mangcoto thereafter testified. On behalf of the Applicant. She testified that Mrs Dwane attended this public meeting at the school where she (Mrs Dwane) informed the meeting that she (Mrs Dwane) will make sure that Mrs Mose gets the Principal post. Mrs Mangcoto testified as an interview panelist who participated in the 1999 interview. At the second interview in 2000 she was an observer. According to her, Mrs Bongo, who served as a departmental observer on the interview panel at the second interview, scrutinised only Mr Pyoos’ application and according to her she (Mrs Bongo) was isolating Mr Pyoos. She also testified that she saw Mr Mose, Mrs Bongo and the Chairperson of the Governing Body, Mr Magcwebeba coming out of the Governing Body Treasurer’s house the night before the interview. She further testified that after Mr Pyoos’ interview on the day of the second interview, she saw the same people without Mrs Mose in the Principal’s office.
3.10 Under cross-examination Mrs Pancoto confirmed that she was a co-opted member of the Governing Body and was present in her capacity at the first interview in 1999. She testified that she took part in every process and also took the minutes of the meeting. She testified that she took part in the criteria setting, she asked questions from the candidates and also took part in the decision of the candidates subsequent to the interviews. She confirmed in evidence that she was not aware that she as a co-opted member could not vote. Her evidence was: “Yes, I gave them points”“ This evidence confirmed that she actively participated in a voting exercise.
3.11 She also testifed at the first interview in 1999 Mrs Mose’s name was not included in the envelope with the other sifted candidates. A decision was then taken that the interviews could not go ahead in the circumstances if indeed Mrs Mose’s name had been sifted and she was not short-listed. She also confirmed that a Mrs Lebola would not participate in the interview proceedings and walked out. Thereafter, Mrs Bongo stated that the interview panel could not proceed as they were not quorate. She also confirmed that the parents component on the interview panel at the interview in 1999 were in the majority.
3.12 Under cross-examination as to the second interview in 2000, she confirmed that she was only an observer on the interview panel.
3.13 Under re-examination she testified that she did not know that she could not vote as a co-opted member. She also testified that the circuit manager (Mrs Bongo) was present in the interview, yet she did not inform her that she could not vote.
4.THE EVIDENCE OF THE WCED:
4.1 Mrs Dwane testified on behalf of the WCED. Mrs Dwane is the area manager for the Kuilsriver area in Cape Town. She testified about allegations surrounding embezzlement of money at Nolungile Primary School. The staff of the school had ceased the envelop that contained the sifted short-listed applications for the post of 1999. According to the staff whom she had spoken to, Mrs Mose was unfit to be Principal because of certain allegations of theft against her. The essence of her evidence was that she reprimanded the staff of their improper conduct regarding the handling of these allegations. Mrs Dwane also denied that she stated at a public meeting on the school premises that Mrs Mose would get the post. She also testified that she spoke with Mr Pyoos telephonically when she informed him that a dispute had been lodged against the post, and that a moratorium had been placed on it. She also testified that she telephoned the principal of his previous school in Langa to inform him about the dispute. She also denied that she telephonically indicated to him that she would ensure that Mrs Mose would get the post.
4.2 Under cross-examination she testified that she has no idea why Mr Pyoos would lie about the content of their telephone conversation. She testified that she personally saw him for the first time during the course of the arbitration proceedings. She testified that when Mrs Mose declared a dispute in relation to the fist interview held in 1999, she had to ensure that the dispute be properly investigated. She further testified that the circuit manager, subsequent to the completion of the investigation, recommended that the process be repeated from the short-listing and criteria stage. It seemed on the basis of this investigation conducted by a Mr Mbekwa, that an additional criterion, namely sport was added and that this criterion appeared to be unnecessary as the post was an administration post. She testified that the actual criteria was found to be unfair because of one of the questions relating to sport. She testified that the issue of sport was mentioned to her by Mrs Bongo. She also testified that the WCED agreed with the recommendations of the investigating committee that the process should be repeated. She further confirmed in her evidence that amongst the candidates in the second interview, was the person appointed, i.e Mr Pyoos and the disputant Mrs Mose. She also confirmed that at the second interview, Mrs Mose was nominated and appointed to the post. She also testified that this second process started afresh from the criteria setting stage.
4.3 Mrs Bongo thereafter testified on behalf of the WCED. Mrs Bongo is the circuit manager. She testified that it was discovered during 1999 that Mrs Mose’s application was not in the envelope together with the other short-listed candidates who was to be interviewed for the Principal’s post. She testified that she indicated this to the Governing Body Interview Panel. She also indicated that she was aware that Mr Mose had applied and had been short-listed. She testified that two of the union members said that in the circumstances the interview panel should not go ahead as they had to enquire about Mrs Mose’s application. She thereafter contacted Mrs Natalie Solomons at the WCED’s offices to enquire about Mrs Mose’s application. It was subsequently discovered that Mrs Mose had included the wrong post number on her application. The WCED then indicated that they would send Mrs Mose’s application through to the Governing Body. She testified that she informed the Governing Body Interview Panel of these developments and it was decided that they would postpone the interview.
4.4 Thereafter some boxes which indicated the application forms for the post was lost when the WCED moved offices from the Fintrust Building. The Nolungile envelopes were also discovered to have been lost. The WCED readvertised the post.
4.5 She testified that she did recall a certain meeting which took place at the Governing Body Treasurer’s home but it had nothing to do with the interviews at hand. It was a meeting convened to discuss misconduct regarding one of the teachers. She also testified that during the second short-listing process she assisted the Governing Body Interview Panel with the formulation of the criteria. When she pursued Mr Pyoos’ CV it only said HOD and did not indicate the years of experience. She then discovered that Mr Pyoos did not meet the criteria of 10 years primary school experience. Despite this, the outcome was that all five people were called in to be interviewed, including Mr Pyoos. She also testified that she did not have any input into who was to be nominated for the post. She was satisfied that the procedure that was followed was correct.
4.6 Under cross-examination, she confirmed that Mrs Mangcoto was a substituted member of the Governing Body. She testified that there was no voting as to the “lifting of hands” but that “scoring” took place. Under re-examination she confirmed that Mrs Mangcoto gave points to the Applicants. The evidence is corroborated by Mrs Mangcoto herself and I accept the fact that she voted to be common cause. On a question by the chairperson, Mrs Bongo testified that there was consensus amongst the Governing Body members in the first interview in 1999 that Mr Pyoos would be nominated to the post. She also confirmed that the second interview panel which was constituted for the second interview in the year 2000, were not the same persons that were involved in the first interview.
4.7 She testified that there were two new members on the second interview panel. In the second interview, a co-opted member was the observer. She also testified that in 2000 the post was readvertised and other candidates were also shortlisted. The criteria for the interview in 2000 was not the same as the criteria in 1999 although the post was the same.
4.8 The third witness who testified on behalf of the WCED was Mrs Ntisane, who testified in her capacity as the secretary of the Governing Body. She served as secretary from 1997 until September 2000. She testified that Mrs Bongo assisted them with the drafting of the questions that were to be asked to the candidates. She also confirmed that Mrs Mose received the highest marks at the 2000 interview that Mr Pyoos only had 8 years management experience and in terms of the criteria there was a 10 year requirement. The Governing Body nevertheless decided to shortlist him. According to her, and in terms of the minutes of the 2000 interview, Mrs Mose received 4 points and Mr Pyoos 5. She testified that she nominated Mrs Mose based on her performance. She also testified in re-examination that the criteria as minuted on page 3 of the minutes of the year 2000 interview formed the basis of the nomination.
4.9 Mr Colin Esau was the last witness to testify on behalf of the WCED. Mr Esau testified in his capacity as Assistant Director: Labour Relations. He confirmed in his evidence that a co-opted member of the Governing Body had participated in the voting of the candidate nominated at the interview that took place in 1999. He testified that his was contrary to the South African Schools Act. Acc9ording to him. the WCED concurred with the results of the investigation that there was a procedural irregularity and that the process should be repeated. He also testified that he received a letter dated 16 September 1999 by Legalwise on behalf of Mr Pyoos. He also testified that anybody is at liberty to lodge a dispute but that this must be done within 90 days.
5.ANALYSIS OF EVIDENCE:
5.1 Mr Jacobs on behalf of Mr Pyoos in his closing submissions submitted that the interview procedure in 1999 should also be considered as part of the dispute before me and that I should find that Mr Pyoos’ appointment as Principal in terms of this interview must be confirmed. While admitting in his closing submissions that a co-opted member of the Governing Body Interview Panel may not vote, he submitted that I should take cognisance of the distinction between active participation and voting per se. He submitted that I interpret the word “actively participated” in terms of section 6 of the South African Schools Act on the basis that she was discharging her functions. He further submitted that there was an apparent bias towards Mr Pyoos at the second interview which took place in the year 2000. In this regard the fact that Mrs Bongo attended a meeting at the Governing Body Treasurer’s house the night before the interview is of significance. He further submitted that Mrs Bongo interfered and contacted the WCED about the omission of Mrs Mose’s application in the envelop that was to be handed to the Governing Body Interview Panel and this illustrated bias. Also the fact that Mrs Bongo checked whether Mr Pyoos had the necessary experience in terms of the criteria at the second interview demonstrates that she interfered. She was only an observer on the Panel. His concluding submission was that I uphold the first interview, confirm Mr Pyoos’ appointment to the post, and invalidate the second interview for the abovementioned reasons.
5.2 Mr Petersen, on behalf of the WCED in his opening submission indicated that I have no jurisdiction to make a finding on the interview process that took place in 1999 as thee is no formal referral for a dispute lodged against that post. He pointed out that Mr Pyoos’ complaint had only been received on 21 June 2000, which is in relation to the post that was advertised in the year 2000, i.e. post 1282. He also submitted that in terms of section 23(6) of the South African Schools Act, a co-opted member of the Governing Body may not vote. This was the case in the interview procedure in 1999. It was on the basis of this irregularity that the interview process in 1999 was found to be invalid.
5.3 Section 23(6) of the South African Schools Act, reads as follows:
“MEMBERSHIP OF GOVERNING BODY OF ORDINARY PUBLIC SCHOOL:
(6) A Governing Body may co-opt a member or members of the community to assist it in discharging of functions.
(8) Subject to subsection (10), co-opted members do not have voting rights on the Governing Body”.
5.4 Section 6(3)(b)(i) of the Employment of Educators Act, 76 of 1988 reads as follows:
“(b) The head of the Department may only decline the recommendation of the Governing Body of the public school or the council of the further education and training institution, if -
(i) any procedure collectively agreed upon were determined by the Minister for the appointment promotion or transfer has not been followed;
5.5 It is common cause on the basis of the evidence before me that a co-opted member of the Governing Body who participated in the interviews in 1999, Mr Pyoos actively participated and voted. It was this irregularity according to the WCED, that resulted in the invalidity of this process, hence them deciding that the nomination procedure be repeated. The evidence is also clear from the correspondence that was submitted in evidence. Clearly, in terms of the South African Schools Act, quoted above, the procedure followed and the subsequent appointment of Mr Pyoos as a result of this procedure, was irregular and therefore invalid. Mr Pyoos on his own version admits that the interview process was flawed.
5.6 Despite his continued dissatisfaction with the decision of the Department relating to the 1999 interview process, he nevertheless applied for the post a second time when it was readvertised in the WCED’s Bulletin in the year 2000. It is also noteworthy that Mr Pyoos’ arbitration referral form to the Education Labour Relations Bargaining Council is dated 27 February 2001. The matter was referred for conciliation to the ELRC for resolution through conciliation on 18 October 2000 and remained unresolved as at 28 February 2001. Although I can understand that this dispute partially has its genesis in 1999, there is no condonation application before me that would entitle me to determine the dispute as encompassing the 1999 interview process. In the circumstances, I cannot take cognisance of the 2999 interview process and Mr Pyoos’ subsequent appointment. As a result, I cannot make a determination thereon. If Mr Pyoos indeed disputes the 1999 interview process and the subsequent decision of the Department to repeat the nomination process as a result of a procedural irregularity or that the WCED had indicated to him they would repeat the nomination process, he should have contested that by declaring a formal dispute against that post at the ELRC. In the absence of a condonation application to the ELRC and approval thereon, I am not at liberty to make such a determination. According to the date of the arbitration referral form I have to confine myself to the interview process for post 1282 as advertised in the WCED Bulletin no 1/2000.
5.7 In addition to the aforementioned, when Mr Pyoos voluntarily re-applied for the post a second time in the year 2000, he to an extent waived his rights to dispute the first process. By re-applying for the post, he accepted the reasons for repeating the process as given by the WCED. Had he lodged a dispute against post 1515 in 1999 and not re-applied for post 1282, it would have been a different matter alltogether.
5.8 For a determination in this matter, I have to confine myself to the second interview process. It is the uncontested evidence of Mrs Bongo, that because the initial application s for the post advertised in 1999 had been lost, the WCED had no alternative but to readvertise the post. It was further her evidence that new Applicants applied and new criteria had been formulated by a newly constituted Governing Body Interview Panel.
5.9 According to her evidence, there were two new Governing Body members who had not participated on the Interview Panl during the 1999 interview process. The interviews took place and again five shortlisted Applicants were interviewed, including Mr Pyoos. However, it now transpired that Mrs Mose was the preferred Applicant based on this new set of criteria. According to Mr Pyoos’ evidence, this second interview was cold and not conducive to free speech. He also testified that the panelists asked him only four instead of five questions. Neither the viva voce or the documentary evidence submitted can take the aspect of his evidence any further. It was Mrs Bongo’s evidence that it was agreed by the interview panel that Mrs Mose would be recommended for the Principal’s post. It is the prerogative of the Governing Body Interview Panel to formulate criteria for a post. It is further their decision whom they wish to ultimately recommend. This recommendation must obviously be on he basis that the procedure followed was correct and fair - and they properly applied their minds. Based on the evidence before me, I can find no gross irregularities of whatsoever nature to invalidate the process.
5.10 Mr Pyoos in his arbitration referral form and in his evidence also testified that he felt that Mrs Bongo had been bias towards him. The evidence before me indicates that she asisted the Governing Body Interview Panel with the drawing up of the criteria but she did not participate in the decision making process nor the voting exercise which determined who the recommended candidate would be. In the circumstances I cannot find that this interview process was tainted by any form of bias on her behalf. What is inexplicable to me, is that she remained silent in the 1999 interviews when the co-opted Governing Body member voted.
5.11 Based on the aforementioned analysis of the evidence before me, I find there have been no unfair conduct on the part of the WCED relating to the re-advertising, the interview process and nomination for post 1282. I accordingly dismiss the Applicant’s application.
DATED: 1 MAY 2001
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 191WC
APPLICANT N G PYOOS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR CONDUCT
ARBITRATOR T GOLDEN
DATE OF ARBITRATION 19 MARCH 2001
VENUE CAPE TOWN
APPLICANT MR JACOBS
RESPONDENT MR YOHANI / MR PETERSEN
It is found that there have been no unfair conduct on the part of the WCED relating to the re-advertising, the interview process and nomination for post 1282. The Applicant’s application is accordingly dismissed.
DATE OF AWARD 1 MAY 2001