Case Number: PSES 402-04/05 WC
Province: Western Cape
Respondent: DEPARTMENT OF EDUCATION WC
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 20 January 2005
Arbitrator: J HAMMAN
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Western Cape Education Department Employer
This arbitration with Mr TP Coetzee as Applicant and represented by Ms M Krieg took place in Cape Town on 2 December 2004. Mrs Phillips and Mr Jansen represented the WCED. The decision to have written arguments and intervening Christmas holidays resulted in the award being brought out late.
When Mr TP Coetzee, a temporary teacher in the employ of the Western Cape Education Department, heard from his friends that a vacancy list containing permanent posts had been published, he immediately approached his principal to inquire. It was confirmed that the list had indeed arrived, and he was afforded 20 minutes before school commenced to page through it.
He noted the possible post which suited his qualifications, and applied for approximately 13 vacant posts. He personally took the applications to the WCED Head Office and waited in anticipation. When he heard no news, he made enquiries and to his shock, he was informed that his applications had not been considered due to the fact that he had completed the wrong forms.
Whereas applications for educator posts had be completed on form A2, he had completed for Z83, the appropriate forms for non-educator posts. The WCED, upon screening the applications, had simply rejected the applications which were not on the appropriate form.
When a second vacancy list was published, the school did not receive a copy. Instead, one of his fellow educators got it from the WCED website and circulated this among the educators. By this time Mr Coetzee had not received formal feedback from the WCED about the rejection of his applications. Again Mr Coetzee applied, again on the wrong forms. The inevitable result followed.
3. Issue in Dispute
The main issue in dispute is whether the WCED committed an unfair labour practice in not considering his application, even though on the wrong form. Related to this is whether a number of incidents by various employees of the WCED, resulting in him completing the wrong forms, constituted unfair labour practices.
4. Evidence and Arguments
Mr Coetzee's first contention is that the vacancy list requires that potential candidates be fully informed and that the list be duplicated and distributed. It is common cause that the latter was not done.
The principal, Mr Vraagom, gave evidence that his normal practice was to announce to the staff assembly that the vacancy list had arrived, and that it was available at the school secretary. This being a school from a Previously Disadvantaged area, it did not have the resources to make many copies of a substantial document. However, availability was ensured in that the single copy was kept at the secretariat where it was available to all (in the past persons had taken the list home, thereby prejudicing other potential applicants).
Mr Coetzee does not remember this announcement, and being from Namibia, he did not know about this requirement.
Furthermore, his standard practice was to invite educators to apply (as head of the institution he had three vacancies to be filled) and to remind and stress upon them to fill in the appropriate form A2 (which was available from the secretary) and to further remind them to attach the required information (two testimonials, of which one had to be recent, and a CV). This was done because it was within his knowledge that many applicants did not comply with those formalities.
Second, Mr Coetzee gave evidence that he only had 20 minutes to study the vacancy list. This resulted in severe prejudice, because due to the time constraints he did not notice the instructions on page 1 of the document, namely that form A2 had to be completed. He was much more interested in the substantive part of the document, and accordingly also missed the attached form A2 at the back.
The third leg of Mr Coetzee's argument is that he was not informed of the rejection of his first set of applications. Had this been done, he would have been able to rectify his mistake in the second set of applications. The second vacancy list, which was from the internet, was circulated among educators without the instructions or the attachment. In this case he was neither informed nor had the list been duplicated.
Fourthly, Mr Coetzee gave evidence that he may have been given the wrong form by the school secretary. She denies ever having given him any form. Mr Coetzee said it may have been that he saw application forms and took the wrong one. She says she did not even have a Z83, and when there was a vacancy for a cleaner, she had to get one from a neighbouring school.
Mr Coetzee also argued that the right application form is not a requirement for the post, and that he materially met the requirements. In fact, it was argued that had they applied their minds to his application, he would probably, in the light of his CV, have been short listed and, further, in the light of suitably qualified educators, have been offered a post.
The WCED responded that the procedure for applications is as follows:
· The vacancy list, wherein posts are advertised states explicitly that only applications of form A2 will be considered. This is because the nature of the information required is different to form Z83.
· Applications are only opened after the closing date.
· Applications on the wrong form, of which do not have the testimonials, or the CV, are discarded.
· Applications are then assessed on whether the applicant substantive meets the requirements as advertised.
· If they do not, they are discarded. If they do, they are forwarded to the school for short listing, interviewing and nomination of the successful candidate.
Mr Coetzee's applications were discarded in the first step of the sifting process, not being on the appropriate form.
With regards to the question of dissemination and information, the WCED argued that they do their best in getting this information to educators via the school (but postal services may be unreliable), making copies available at the regional centres and by publishing the information on the internet.
Mr Coetzee also argued that the WCED breached their constitutional duty to fair administrative action through their incompetence (e.g. in informing him late). Variants if this argument forms a substantial part of his argument. He was supported by a written submission by a Mr Roets from Cape Town administration, which testified to a completely different approach, namely to accept applications which are on the wrong forms or late, in order to give as many people the opportunity to apply.
With regards to the constitutional arguments regarding administrative justice, the ELRC is not the appropriate forum. The constitution specifies the remedies in enforcing these rights. However, they may be used as analogy to illustrate an unfair labour practice.
It is clear here that the WCED showed a lackadaisical approach to fulfilling their obligations as captured in Resolution 5 of 1998, particularly with regard to informing Mr Coetzee why his application was not entertained. Furthermore, there were procedural breaches from the WCED with regard to duplication of vacancy lists. Mr Coetzee's criticisms about the WCED approach, which was "reminiscent of the civil service of olden days, which did not care about the rights of citizens" have a ring of truth about it.
However, the question is whether this constituted an unfair labour practice? First, on the factual dispute on whether Ms Abrahams (the secretary) gave him the application form, her version was very convincing. Whereas Mr Coetzee thought she might have given it to him, she was adamant that this was not the case. She also said that she did not even have a copy, is also believed and corroborated by Mr Vraagom. Thus, she did not, even if she were a representative of the WCED, commit any unfair labour practice towards him.
Second, whether the 20 minutes in which Mr Coetzee had was too short, the WCED argued, rightly, that he had enough opportunity to study the document more intensively in the time leading up to the deadline for applications. This cannot be earmarked as an unfair labour practice.
Neither can the sifting procedure of the WCED itself cannot be regarded as an unfair labour practice. There was ample evidence that the procedure was followed consistently, and that no applications without form A2 were considered. Whether Cape Town administration followed a different approach, can only be evidence of that approach, and not that the WCED procedure is inherently unfair. The requirement of the A2 was communicated, albeit not copied, and consistently applied. Nor is the procedure in itself unreasonable.
It is thus found that Mr Coetzee had enough opportunity to establish the correct procedure for applying for the posts in question, and that he did not do so. The argument that his Namibian and other foreign experience must have been taken into account and that the WCED should have made a special effort to advise him on the procedure is equally true for himself - he should have taken extra care that his application is in the proper format.
From the CV submitted to the arbitration, Mr Coetzee is certainly an experienced and qualified person. On whether he was qualified for the post, there is no reason for a decision.
It is therefore found that the decision to not entertain his applications did not constitute an unfair labour practice.
No award is made.
Thus awarded in Stellenbosch on this 20th day of January 2005.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 402-04/05 WC
RESPONDENT DEPARTMENT OF EDUCATION WC
NATURE APPLICATION POST
ARBITRATOR J HAMMAN
DATE OF ARBITRATION 2 DECEMBER 2004
VENUE CAPE TOWN
APPLICANT MS M KRIEG
RESPONDENT MRS PHILLIPS & MR JANSEN
1 No award is made.
DATE OF AWARD 20 JANUARY 2005