Case Number: PSES 578-04/05GP
Province: Eastern Cape
Applicant: DAYANUNTHEN RAMSAMY NAIDOO
Respondent: DEPARTMENT OF EDUCATION-GAUTENG
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 30 June 2005
Arbitrator: Terry Moodley
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Commissioner: Terry Moodley
Case Number: PSES 578-04/05GP
Date of Award: 30 JUNE 2005
In the ARBITRATION between:
DAYANUNTHEN RAMSAMY NAIDOO
(Union / Applicant)
DEPARTMENT OF EDUCATION-GAUTENG
Union/Applicant’s representative: MR.S.P SELEKE (ADMITTED ATTORNEY)
Union/Applicant’s address: SOLOMON, NICHOLSON, REIN AND VERSTER
Telephone: 073 175 8927
Telefax: (012) 343 1752
Respondent’s representative: MR. S MAPONYA (LABOUR RELATIONS OFFICER)
Respondent’s address: 111 COMMISSIONER STREET
Telephone: (011)355 0459
Telefax: (011) 355 3301
DETAILS OF HEARING AND REPRESENTATION
The applicant was represented by Mr. S P Seleke, an attorney of the firm Solomon, Nicholson, Rein and Vester. The respondent was represented by its Labour Relations Officer, Mr. S Maponya.
ISSUE TO BE DECIDED
The issue to be decided is whether the respondent had committed an unfair labour practice in not appointing the applicant to post number TS 14B 4769.
The applicant is currently employed as a Post Level One Educator at Laudium Primary School. In 2004 the applicant applied for a vacant post of Head of Department-post number TS 14B 4769 (hereinafter referred to as he disputed post), at the same school. It was common cause that the post was advertised in the Departments vacancy list of January 2004 as Natural Sciences and Technology, Mathematical Literacy, Mathematics and Mathematical Sciences. The applicant was shortlisted, interviewed and recommended for the post by the School Governing Body (hereinafter referred to as the SGB). The District Office, through the District Grievance Committee declined to approve the recommendation.
The applicant claims to have been subjected to an unfair labour practice as a result of the respondent’s refusal to appoint him.
SURVEY OF EVIDENCE AND ARGUMENT
The applicant testified that he was the acting HOD responsible for languages at the time when he applied for the post. The deputy principal was responsible for maths and sciences. The applicant testified that he acted in the post from 2000. He was required to provide input regarding the formulation of policy including maths and sciences. There are nine learning areas in the position of HOD and it was the applicant’s evidence that the learning areas flow into each other.
The applicant testified that he taught maths and sciences in 1989 and 1990. The Applicant testified that he conducted workshops for new educators in the area of maths and sciences.
The applicant applied for the disputed position as he believed that he had the requisite experience and qualifications. He occupied the position of level one educator for a period of twelve years and he had “interacted” with maths and sciences. As a result of having acted for a period of two years, it was respondent’s policy that the applicant be automatically shortlisted. The applicant was one of five shortlisted candidates.
At the interview, the applicant was asked questions of a general nature. The questions revolved around managerial issues rather than the learning areas of maths , sciences and humanities. The applicant was recommended for the post by the SGB but was not appointed. He seeks an order that the respondent be compelled to appoint him to the disputed post.
The respondents first witness, Mr. Fana Cilo (hereinafter referred to as Cilo), testified in his capacity as Labour Relations Officer for the district of Tswane South. His responsibilities include attending to complaints from employees, attempting to resolve them and to ensure that employees comply with the code of conduct.
Cilo testified that he was requested to deal with a complaint regarding the disputed post. He was required to look into the post requirements and the manner in which the interview was conducted. The complainant or aggrieved party complained that the applicant as the recommended candidate did not meet the requirements of the post as he had no teaching experience in the subjects for the post. A Grievance Committee was established to consider the complaint. The committee comprised two officials from the District office, and one official from three of the trade unions to the ELRC.
The SGB was required to explain the why it had deviated from the advertised post requirements. The SGB admitted that it had deviated from the requirements of the advertised post after the applicant made representations to it to change the requirements. The SGB conceded that the post was wrongly advertised and that a remedy would be to re advertise the post. It was further conceded that the interviews were not conducted according to policy.
The conclusion reached was that the post would be re advertised as the SGB wished to have the requirements for the post changed. This would require the principal consulting with the Institutional Development and Support Officer, who would advise on what direction to take in the best interests of the school.
The respondents second witness, Mr. Francois Jacobus Hoffman (hereinafter referred to as Hoffman), testified in his capacity as principal of Laudium Primary School. He confirmed having requested the respondent in writing to advertise the disputed post. The needs of the school was maths and science. The interviews were conducted without questions being asked about maths and science.
Hoffman received a letter from the applicant which read as follows :
“GRIEVANCE REGARDING ADVERTISEMENT OF HEAD OF DEPARTMENT POST
I hereby lodge a grievance against the requirements for the post of HEAD OF DEPARTMENT as advertised by LAUDIUM PRIMARY SCHOOL. My dissatisfaction stems from the following:
. I performed the duties of Head of Department : Humanities ; EMS and Technology
unofficially-thus receiving no acting allowance for a period of 4 years.
. I was then subsequently formally appointed as Acting Head of Department
: Humanities last year
. I was informed by my principal that I could not be recommended for an extended
period as this was contrary to GDE policy.
: the school qualifies for
I deputy principal –specialising in MLMMS and NATURAL SCIENCE
3 Heads of Departments: I currently filled by a specialist in Languages LO & AC
I Junior Primary Hod
In terms of the curricular needs of the school; it stands to reason that the vacant
post should be advertised as HOD: HUMANITIES; TECHNOLOGY; EMS
. The post has been advertised as a post of HOD: MATHS AND SCIENCE.
I am dissatisfied with this and discussed the matter with my principal who indicated
that after much deliberation with you; he HAD to advertise the post in this way.
I understand that advertised posts will be filled by excess educators but I also
believe that the post requirements as advertised should not discredit me as a possible
applicant in the event of this post not being filled by an excess educator.
Please view my reservations in a serious light and in terms of the needs of the school.
With the permission of my principal; I request a meeting with you as urgently as possible.”
In essence the applicant sought to have the post description changed. He felt aggrieved as he did not meet the post requirements in so far as maths and science is concerned. Hoffman indicated that the post description could not be changed because of the needs of the school. Hoffman called in the school IDSO and an evaluation revealed that the school needed qualified maths and science educators. Hoffman testified that the schools needs remained maths and science.
The respondents third witness, Dr Craig Moses (hereinafter referred to as Moses), testified in his capacity as Institutional and Developmental Circuit Manager. His responsibilities include the supervision of an allocated number of schools including Laudium Primary School. He testified that the disputed post became vacant after the incumbent retired. The post was advertised in terms of the needs of the school. The SGB did not determine the curriculum of the school and hence did not have the right to change the requirements of the post. If this does happen then it would amount to an irregularity. The needs of the affected school remain maths and science.
ANALYSIS OF EVIDENCE AND ARGUMENT
It is common cause that the applicant had applied for, was shortlisted and recommended for the disputed post. It is also common cause that he respondent declined to appoint the applicant. The requirements of the post was determined by the needs of the school and the post was advertised accordingly. The Applicant was aggrieved by the wording of the advertisement as he felt that it excluded him by virtue of the maths and science requirements. He thus sought to have the requirements of the post to be changed.
The Interview Committee ignored the advertised requirements of the post and the attendant policy around the conducting of the interviews. It conducted the interviews without taking into account the requirements of the post and focussed on managerial responsibilities and to this extent general questions were asked. The applicant on the strength of the irregular interview process was recommended to the exclusion of other candidates qualified in maths and science. The applicant’s evidence that he has the necessary experience and qualifications in maths and science contradicts his letters of grievance which conceded that he had the necessary experience and qualifications in humanities rather than maths and sciences. He sought to have the advertisement to be changed to meet his needs.
The requirements of the school at all material times was and is maths and science. It would be untenable to compel the respondent to appoint the applicant to the disputed post by ignoring the needs of the school. The SGB had acted irregularly in recommending the applicant through a flawed interview process.
In terms of Section 6(3)(b) of the Employment of Educators Act 76 of 1998, the HOD may decline a recommendation of the SGB if any procedure collectively agreed upon or determined by the Minister for the appointment had not been followed. In this matter the SGB had clearly exceeded its powers by going beyond the requirements of the advertised post and by substituting its own requirements for the post. The respondent was thus justified in its decision not to appoint the applicant to the disputed post.
1. The respondent had not committed an unfair labour practice by not appointing the applicant to post number TS 14B 4769 as advertised.
2. The decision by the Grievance Committee to re advertise the post is upheld.
Commissioner: Terry Moodley