Case Number: PSES 559EC
Province: Eastern Cape
Applicant: NF MAYEKISO
Respondent: THE DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 24 May 2001
Arbitrator: JR MIDGLEY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 559EC
In the arbitration between:
NF MAYEKISO APPLICANT
THE DEPARTMENT OF EDUCATION RESPONDENT
1 . DETAILS OF HEARING AND REPRESENTATION
1.1 The applicant is Ms NF Mayekiso and the respondent is the Department of Education: Eastern Cape. The applicant was represented by Mr S Nohesi, an official of USAPE, the Union of South African Professional Educators, and the respondent was represented by Ms T Poswa. Mr EM Xeke acted as interpreter.
1.2 This matter was set down for arbitration on 9 March 2001 at the District Offices of the Department of Education in Butterworth. The matter had been partially heard by another arbitrator who, I am informed, is no longer on the ELRC panel. Accordingly, I have had to hear the matter afresh. The hearing was scheduled to continue on 11 April 2001 but again had to be postponed without evidence being led. Evidence was finalised on 25 May 2001.
2 . ISSUE TO BE DECIDED
2.1 The applicant had applied for a post of Principal of Upper Ngcula Junior Secondary School in the Nqamakwe District. She was unsuccessful. She alleges the following irregularities in the process:
2.1.1 That the interview process did not comply with the procedures set out in Resolution 5 of 1998, a collective agreement published at pages 35-38 in GG 19767 Vol 404 dated 8 February 1999, in that there had been no short-listing process and that a departmental official had chaired the selection panel and that the chairperson had been a relative of one of the candidates.
2.1.2 That she had been the victim of gender discrimination in that the selection panel had been instructed to appoint a male candidate.
2.1.3 That the School Governing Body (SGB) did not apply its mind correctly and that the members on the panel did not know what they were doing.
2.1.4 That the former school principal had unduly influenced the SGB in making its decision.
2.2 The applicant seeks the following remedies:
2.2.1 That the appointment which resulted from the process be declared null and void.
2.2.2 That I declare that the SGB had been at fault in executing its duties.
2.2.3 That I order the process to be started afresh and that the procedures set out in Resolution 5 of 1998 be complied with.
3 . SURVEY OF EVIDENCE AND ARGUMENT
3.1 The applicant testified that she holds three qualifications, the PRC, the SED and the HDE. She has been a teacher since 1973 and amongst others, held the post of Vice-Principal in Libode, Principal in Port St Johns and Deputy Principal at Upper Ngcula. When the Principal retired in October 1999, she acted as Principal of the school.
3.2 The post in question was advertised in January 2000 and approximately 18 applicants applied. Because of a report made to her by Mrs Qwela, a Member of the SGB, the applicant contacted the Circuit Office of the Department and requested protection against possible discrimination in the selection of the principal.
3.3 The Department responded in a letter dated 5 March 2000. She did not respond to this letter as she had given up hope - she believed that the SGB was still adamant about appointing a male principal.
3.4 The first interviews were held in February 2000, but after the applicant had complained about the process, the District Office instructed the SGB to redo the process and to comply with the procedures set out in Resolution 5 of 1998.
3.5 The applicant testified that 4 people, including the applicant, were interviewed in May 2000. She points out that she had no knowledge of any short-listing process (it is common cause that none had taken place), and that some applicants had never been told to attend the interview meeting. She confirmed that she had been telephoned by Mr Nkani of the Nqamakwe District Office.
3.6 Before the interview the applicant was told that her application forms had been misplaced and that she had to fill in some more. Mr Nkani told her that she would not be prejudiced by the fact that she did not have copies of all the documents with her. However, at the last moment Mr Nkani found the documents and the applicant believes that he had told her that the documents were missing in order to unsettle her.
3.7 The interviewing panel was a committee of the SGB, consisting of the SGB chairperson, Mr Mbane, SGB members Mr Maduba, Mrs Mbadamana, Miss Msila, Mrs Qwele, and two teachers representatives, Miss Mehlo and Miss Ndiki.
3.8 Before the interviews Mr Nkani told all the applicants and the panel members that there had been irregularities in the first process and that is why the process had to be repeated. The applicant asked how her complaint about gender discrimination was to be addressed and Mr Nkani replied that nothing had been written to that effect. She is adamant that Mr Nkani did not say that the males and females would be affected equally.
3.9 The applicants then left the room and were interviewed individually. After the interviews they were again called in and informed that 3 names would be forwarded to the District Office. The names were those of Mr Mtiya, Ms Mayekiso (the applicant) and one other. The applicant testified that she had been happy with the questions put to her, but not with the process. She had seen Mr Ntlabathi, her union's observer representative on the panel, but did not inform him of her unhappiness because she intended following up the dispute lodged with the ELRC.
3.10 The applicant said that Mrs Qwele had informed her that before the interviews she (Mrs Qwele) had come across certain of the panel members who had completed scoresheets in their possession and that these were torn up and thrown in a dustbin. The following day the applicant went to the classroom where this incident occurred and she found torn pieces of paper (Exhibit D) in the dustbin. The information on these pieces of paper corresponded with the information which she had been given and indicated that her score was very low. She was convinced that she had been prejudiced and that the scoring process had not been fair as she had been given 1/5 for categories such as experience, sobriety and record keeping. She believes that the SGB members did not know what they were doing and that they had not been properly advised.
3.11 In cross-examination the applicant confirmed that she had spoken to Ms Spengane of the District Office in November 1999, before the post had been advertised, and informed her that the SGB chairperson had scolded her when she requested him to come to the school. He told her then that he had heard that she was to be redeployed.
3.12 She again appealed for protection after the second interview.
3.13 Mrs Qwele testified that she no longer is a member of the SGB, but that she had been at the time of the interviews. She was a member of the interviewing panel and this was the first time she had been part of such a process. At the first interview process they were shown how to score. She said that she is not educated - she has Std 6 - and that Mr Mbane and Mr Maduba, while not learned, became enlightened as the became more experienced with SGB work.
3.14 She testified that on one occasion the former principal called in the SGB and told them that due to redeployments they had to choose a principal, but not Ms Mayekiso, because she was about to leave. He also told them that they should decide to fill the post with a man. She said this occurred in February and it is common cause that this must have been February 1999.
3.15 As regards the May interviews, Mrs Qwele testified that she had arrived early and waited in a class room. She became worried that she was in the wrong place and then went to the needlework room where she found three other SGB members. They appeared shocked to see her. They were busy writing on a desk. She requested to see the official papers that they were writing on, but they refused. Mr Maduba said he had got the form from his son, while Mr Mbane said he got his during the first interview process. She saw they were scoresheets and the marks allocated to Ms Mayekiso had been I's and 2's, those for Mr Mtiya 4's and 5's, and those for Mr Makalima almost 4's and 5's. Mr Mbane apologised but stressed they were showing each other how they should nominate Mr Mtiya because he had been nominated originally. Mr Maduba then tore up his scoresheet and put it in the dustbin. When asked why she was not told how to score, she replied that perhaps it was because she was not accepted. On a previous occasion she had suggested that the applicant be appointed because of her broader experience. Mr Nkani, then came in and after a prayer explained how the interviews were to be conducted.
3.16 The result of the interviews was the Mr Mtiya scored 502 points and Ms Mayekiso 420. She confirmed that she had scored 82 points for Ms Mayekiso and 38 points for Mr Mtiya. The reason for the discrepancy was that Mr Mtiya was young, less experienced, did not participate in community affairs and dressed rather casually. One also could not get close to him. He should not have been appointed because of his age and experience. On the other hand, Ms Mayekiso had experience as a principal and was accessible.
3.17 Mr Sifile testified that he is the principal of a nearby school and that he had applied for the post in question. He had been called for an interview in February 2000, but had not been informed of the outcome. He was also never told that there would be a second round of interviews. He heard afterwards that there had been interviews, but did nothing about the matter because he also heard that the process would be submitted to arbitration. Although he owned a cellular telephone and had given the number on his application form, he specifically denied having been informed by Mr Nkani of the interviews a week prior to the interviews. He also did not receive any message. He said that he stays nearby and usually hears about upper Ngcula matters over weekends. But this time he had heard nothing about the interviews.
3.18 Mr Ntlabathi is the district chairperson of the USAPE. He was not part of the first interview process, but was the union observer during the second process. Although he should have received 5 days notice, he had been informed of the meeting, by telephone, only on the day in question. In his opinion, the allocation of scores had been dubious because of the exaggerated result in favour of Mr Mtiya. He indicated that the points were not consistent. He confirmed that he nonetheless signed a letter after the meeting in which he indicated that the process had been in accordance with resolution 5 of 1998. But he now believes that it was not: because there had not been a short-listing; and because no SGB meeting had been held to confirm the committee decision. An announcement had been made at the selection meeting that Mr Mtiya had been recommended for the post. He also pointed out that Mr Nkani had chaired the meeting, which had been irregular.
3.19 Mr Makalima, a member of SADTU, a different union, testified that he had also been an observer at the second round of interviews and that he had also signed a letter indicating that the procedure complied with Resolution 5. He said that he had seen the scoresheets and found nothing wrong, and did not believe that the marks were inconsistent. He said that it was usual for to look at all the applications and sometimes it is appropriate to inter-view all the applicants. This was the procedure followed on that day. The reason why a departmental official chaired the meeting was that sometimes people are semi-literate and cannot interpret the rules. This is usually a local arrangement. The outcome in this instance was determined by the total scores.
3.20 Ms Spengane, the District Manager of Nqamakwe, described the procedure which is followed when posts are advertised. Her office collects the application forms and after contacting the SGB prepares for the interviews. A representative of her office goes to the school on the interview day and, because of the levels of illiteracy in the district, sometimes has to act as chairperson of the interviewing committee. The usual practice is for the representative to discuss with the SGB how the interviews are to be conducted. After the interviews the representative brings the SGB's recommendations to the office where the scoresheets are checked. The scores are the determining factor when selecting candidates. They also check to see that the correct procedures have been followed. If there are no irregularities, the recommendation is passed on for approval. If there are irregularities, then the matter is brought to the attention of the SGB and the SGB is informed as to how to correct the irregularity. A new recommendation is then made.
3.21 In this matter the post was advertised in the normal way and the second round of interviews were conducted in terms of Resolution 5. She pointed out that the resolution did not make short-listing of candidates compulsory. The interviewing panel need not do so if it does not so wish. This was a common practice in the area and one which had the approval of the unions. She also indicated that she was aware that Ms Mayekiso had been worried about discrimination, but she did not detect any discrimination in this instance. Ms Mayekiso had been placed second on the list. She noted further that the procedure had been agreed to by the union representatives who present.
3.22 Mr Nkani, an Education Development Officer in the Nqamakwe District, testified that he had represented the Department when the candidates were interviewed the second time. He said that he had personally telephoned all the applicants who had attended the first interview to tell them about the date for the second interview. He denied categorically Mr Sifile's assertion that he had not been informed. Only for applicants attended the second interview.
3.23 In order to be fair to all constituencies, the interviewing committee consisted of the entire SGB, with himself and a representative from each of the two unions as observers. He was proposed as chairperson of the committee. He could hold that position, because Resolution 5 said that the Departmental Representative may assist in certain instances. He did not score, however. He discussed the procedure with the SGB in the presence of the candidates and showed the SGB members how to score. They decided not to shortlist, but to interview all four candidates who had arrived. Everyone had an opportunity to ask questions, and Ms Mayekiso was the only one who asked a question. She was concerned about gender discrimination, but was satisfied with his reply that both genders would be treated the same. Thereafter the applicants left and the SGB interviewed each of them individually. Afterwards the marks were totalled on a blackboard and the results were shown to the candidates. Everyone was satisfied with the process. The union members confirmed this in writing and one of the applicants thanked them for the way in which the election had been conducted.
3.24 In Mr Nkani's view, the SGB members were capable of discharging its duties. They were well informed about the process. He conceded, however, correctly in my view, that the scoresheets were not marked correctly, since candidates who were liked scored highly in all categories and those were not liked scored poorly. He knew nothing about a meeting prior to his arrival nor about any papers that had been torn up. No-one had raised the matter.
3.25 Mr Maduba was a member of the SGB at the time of the second interview. He confirmed that Mr Nkani had shown them what to do in the presence of the candidates and said that they then followed those instructions. Mr Maduba confirmed that for members of the SGB, himself, Miss Msila, Mrs Qwele and Mr Mbane were present in the needlework room prior to the meeting.
3.26 They were showing each other how to fill in the forms, using a blank form which was left over from the previous interview. Afterwards he tore up the form into little pieces so that no-one could recognise it and threw them into the dustbin. He did so because it was an important paper and he did not want anyone to see it. No-one had written on the form and if anyone had done so, then it was someone else. He says that Mrs Qwele had been there all the time and never left the room.
3.27 Mr Maduba was questioned at length about how he had scored the candidates. He said that Mr Mtiya got the highest points because of his experience. He deserved it because of the words that came out of his mouth. He said that he understood what he was doing and confirmed that he could not read English. The gist of his comments was that what the candidates said in the interview determined who would win. The individual categories like teaching experience, sobriety and dress code were not given specific attention. He also said that old people like himself are led by the younger ones. He confirmed further that they had been told only once, at the start, how to fill in forms. Nothing was again said during the interview while they were completing the forms.
3.28 Mr Maduba denied that the previous principal had called a meeting of the SGB to discuss the next principal. At no stage did the SGB state that it preferred a male principal.
3.29 Both sides submitted written arguments. The union argues that the procedure outlined in Resolution 5 had-not been followed. Specifically:
3.29.1 The District Office did not sift the applications.
3.29.2 It did not provide the unions with information.
3.29.3 It did not forward the applications to the SGB.
3.29.4 No short-listing had been done and if it had, Mr Mtiya would not have been short-list, given that on the list of 17 candidates 8 had previous experience as Deputy Principals and Principals, while he had none.
3.29.5 The departmental representative could not chair the committee.
3.29.6 The interviewing committee should not have exceeded 5.
3.29.7 The interviewing committee's recommendation should be forwarded to the full SGB for its recommendations, which had not been done.
3.30 The union submitted further that Ms Mayekiso had been a victim of an SGB conspiracy, that she had been discriminated against on the basis of gender, and that the SGB was unable to conduct the interviews in a fair and proper manner.
3.31 The Department argues that the appointment process was procedurally and substantively fair and that Resolution 5 had been adhered to. Short-listing is not necessary. The semi-illiteracy of the SGB members did not effect the outcome. Everyone had agreed that the procedure had been fair.
4. ANALYSIS OF THE EVIDENCE AND ARGUMENT
4.1 Most of the facts are common cause and I am faced with contradictions only in respect of what happened in the needlework room prior to the meeting. In order to resolve the conflict I must look at the quality of the evidence and the probabilities that what each of the parties said is true. Mrs Qwele's evidence is that she saw other SGB members in the room writing on official scoresheets. She saw the names on the sheets and the scores allocated. She had been told that they were showing each other how to nominate Mr Mtiya. Mr Maduba then tore up the score sheet and put it into the dustbin. Ms Mayekiso testified that she found torn papers, exhibit D, in the dustbin the following morning. These contained writing which corresponded with Mrs Qwele's evidence. However, I also bear in mind that the similarity in evidence could as easily be ascribed to the fact that the witnesses checked the papers prior to giving evidence. Mr Maduba does not contest that they were showing each other how to score. He says, however, that they did not write anything. He also confirms that he tore up the sheet and threw them into the dustbin. His reason for doing so was that it was an important paper.
4.2 I have no hesitation in finding the union's version of the events is to be preferred. The Department's version is inherently improbable and cannot be reconciled with the fact that there is writing on the pieces of paper found in the dustbin. I have also examined the writing on the pieces because I wanted to make sure that the applicant had not manufactured this evidence. I compared her handwriting in exhibit A with that on the torn paper and there is no similarity. I then looked at the writing on the scoresheets for the SGB members. The handwriting on exhibit I is clearly the same as that on the torn pieces of paper. Exhibit I is Ms Msila's scoresheet. It is common cause that Ms Msila was in the needlework room. I have no hesitation in drawing the inference that she had written on the document that evening. The union's version of the events in the needlework room is therefore to be preferred.
4.3 On the evidence before me the following material facts are relevant to my decision. The post was advertised, the first interviewing process was flawed and a second round of interviews was held. The Department telephoned all the candidates to inform them of the second interviews. The full SGB constituted the inter-viewing committee, together with the three observers. Prior to the meeting some members of the interviewing committee met in the needlework room to show each other how to fill in the scoresheet so as to ensure that the person who had scored best in the previous (flawed) round would again get the highest score. This sheet was torn up, thrown into the dustbin and Ms Mayekiso found it there the following morning. Four candidates attended. No short-listing was conducted. Mr Nkani explained the process to everyone. He was proposed as chairperson. The interviews were conducted and Mr Mtiya got the highest score, with Ms Mayekiso second. He is the person who got the highest score on the previous occasion. Everyone present indicated that he or she was satisfied with the process. The events that occurred in the needlework room were not common knowledge. No SGB meeting was held to ratify the interviewing committee’s decision and to make a recommendation to the District Office. The interviewing committee's recommendation was forwarded.
4.4 I now deal with the various submissions:
4.4.1 The District Office did not sift the applications. Mrs Spengane testified that her office checks all applications to see that they comply with the minimum criteria. There is no evidence before me indicating the contrary. I find that the District Office did sift the applications.
4.4.2 The District Office did -not provide the unions with information. This point is common cause. However, when it was point put to Mrs Spengane she indicated that the unions did not request that information. Had they done so, she would have provided it. I find that this explanation suffices and no irregularity occurred in this regard.
4.4.3 The District Office did not forward the applications to the SGB. The evidence indicates that the SGB had seen the applications during the first process. The list was no different in the second. It appears that this aspect had not been complied with, but my finding is that if there had been an irregularity in this regard, it was in the circumstances not sufficiently material to nullify the proceedings.
4.4.4 No short listing had been done and if it had, Mr Mtiya would not have been short listed, given that on the list of 17 candidates 8 had previous experience as Deputy Principals and Principals, while he had none. The decision in this instance was not to conduct any short listing. The union suggests this is an irregularity, while the Department says it complied with the provisions of Resolution 5. Item 3.3(f) of the Resolution stipulates that the interview committee may conduct short-listing. The item provides the committee with a discretion. This is not a prerequisite. If the committee decides not to shortlist, this does not nullify the proceedings.
4.4.5 The departmental representative could not chair the committee. Item 3.3(c) provides that each interview committee shall appoint a chairperson from amongst its members. This was not done, The departmental representative chaired the meeting. Mr Nkani says it was possible for him to do so, because Item 3.3(e) provides for departmental assistance in certain instances. However, this section has nothing to do with the appointment of chairpersons, but with the notification of candidates in instances where the principal is also a candidate for the post.
4.4.6 Nonetheless I find that Mr Nkani's appointment as chairperson was not irregular. Item 3.3(b) indicates that the departmental representative is a member of the interview committee. The fact that he or she has observer status does not alter the fact that the representative is a member of the committee. As such, Mr Nkani was eligible for appointment as chairperson and this did not constitute an irregularity.
4.4.7 The interviewing committee should not have exceeded five persons. There is no provision in Regulation 5 which limits the size of he interviewing committee. The documents which the union submitted to me in this regard are not applicable as it is common cause that they were circulated after this selection process. I also have my doubts whether a departmental booklet can supersede the Resolution. If find that no irregularity occurred in this regard.
4.4.8 The interviewing committee's recommendation should be forwarded to the full SGB for its recommendations, which had not been done. In my view, in instances where the voting members of the interviewing committee consists all the members of the SGB this requirement is superfluous. Its purpose is to ensure that the SGB makes the appointment, not a subcommittee thereof which is constituted differently from the SGB. There can be no doubt that the recommendation to appoint Mr Mtiya was that of the full SGB. I find no irregularity.
4.4.9 Ms Mayekiso had been a victim of an SGB conspiracy and that she had been discriminated against on the basis of gender. Allegations have been made in this regard, but I am not satisfied that there is sufficient evidence to suggest an SGB conspiracy or that gender discrimination had occurred. I cannot make a positive finding to that effect.
4.4.10 The SGB was unable to conduct the interviews in a fair and proper manner. It is clear that some members of the interviewing committee had agreed in the needlework room to vote in a particular way. I am certain that they did not approach the interviews with an open mind and that candidates other than Mr Mtiya were prejudiced. This conduct constituted a gross irregularity and cannot be condoned.
4.4.11 I also find that the members of the interviewing committee did not conduct the selection in a rational manner. Even if one discounts the predetermined conclusion in the case of some members, it is clear from the evidence that each person based his or her choice upon an overall impression of the candidates’ performance and not on the various criteria set out on the scoresheet. Candidates simply made up the numbers, for they could not read the language in which the headings were written and they had no idea two which category they were allocating their scores. The scoring process was therefore a farce. In light of this, the final outcome cannot be said to be a rational outcome, which means that the selection process was irregular in a material way.
4.5 In view of my findings in points 8 and 9 above the appointment of Mr Mtiya must be set aside and proceed afresh, with a new advertisement for the post and in accordance with current selection procedures. Should any of Mr Mbane, Mr Maduba or Miss Msila still be on the SGB, they should not form part of the interviewing committee.
5.1 My determination is as follows:
5.1.1 Mr Mtiya's appointment as Principal of Upper Ngcula Junior Secondary School is declared null and void.
5.1.2 The selection process should start afresh according to current selection procedures.
5.1.3 There is insufficient evidence to determine the SGB's fault and I decline to make any determination in this regard.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 559 EC
APPLICANT NF MAYEKISO
RESPONDENT DEPARTMENT OF EDUCATION EC
NATURE APPLICATION (FOR POST)
ARBITRATOR JR MIDGLEY
DATE OF ARBITRATION 24 MAY 2001
APPLICANT MR S NOHESI (USAPE)
RESPONDENT MS N F MAYEKISO
1 Mr Mtiya's appointment as Principal of Upper Ngcula Junior Secondary School is declared null and void.
2 The selection process should start afresh according to current selection procedures.
3 There is insufficient evidence to determine the SGB's fault and I decline to make any determination in this regard.
DATE OF AWARD 24 MAY 2001