PSES 669/05/06 KZN
PSES 669/05/06 KZN
Award Date:
14 August 2006
Case Number: PSES 669/05/06 KZN
Province: KwaZulu-Natal
Applicant: NATU obo Sikhakhane
Respondent: Kwazulu Natal Department of Education
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Education Regional Office Vryheid
Award Date: 14 August 2006
Arbitrator: P Govindasamy
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN
CASE NO. PSES 669/05/06 KZN
In the matter between: NATU obo B C SIKHAKHANE (APPLICANT) and DEPARTMENT OF EDUCATION – KWAZULU NATAL (RESPONDENT)
X C BUTHELEZI (JOINDER PARTY)
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
NATU referred the dispute on behalf of the Applicant who complained that the Respondent did not allow him to speak in the language of his choice during the interview for the post of principal under post number 6002 in terms of HRM Circular 55 of 2005.
All parties appeared at the hearing on 31st July 2006. The Applicant was represented by Mr SGE Mdunge of NATU, the Respondent was represented by Mr NC Ndlovu and the Joinder Party was represented by Mr BO Zulu of SADTU.
ISSUE TO BE DECIDED
Whether or not the Applicant has been unfairly treated when during the interview process he was not allowed to use the language of his choice, namely IsiZulu and if so whether the post of Principal under post number 6002 should be withdrawn and the process from the interview stage should be redone.
SURVEY AND ANALYSIS OF THE EVIDENCE AND ARGUMENT
It is common cause that:
NATU registered a grievance on behalf of the Applicant concerning the post of principal in question;
Despite the grievance having being lodged timeously with the Respondent, the post was filled by the appointment of the Joinder Party;
The post was subsequently withdrawn but the grievance was not heard;
The Joinder Party was subsequently reinstated to the post of principal;
The Respondent failed to deal with the grievance;
Any flaw which emanated from the failure to deal with the grievance was cured by the dispute being referred to the ELRC.
Applicant’s Case
Sthembiso David Shongwe, a Senior Education Manager for the Mahlabathini Circuit testified on behalf of the Applicant. He said that he was authorised to act on behalf of the Chief Executive Officer of the Respondent. When the Joinder Party was appointed to Post number 6002/05 he introduced him to the staff at theNtandakuwela Primary School. However the Circuit Manager, Mr Nselele instructed him to withdraw the principal from the school as a grievance was lodged against the post. The post was subsequently withdrawn. Later however the Joinder Party was reinstated to the post when a letter dated 2nd February 2006 was sent to him. Under cross examination, he emphasized that under and by delegated authority he had the power to appoint and withdraw any placement. Although he did not personally see the document lodged by the Applicant concerning the latter’s grievance, he heard that there was in fact a grievance.
Elliot Lymon Mzokhanyayo Dumakude testified that he was delegated by the Respondent to act as the departmental official and resource person in the interview process. He recalled that all the parties representatives including SADTU and NATU had a short discussion regarding the language to be used during the interview process. SADTU said that the interviews should be conducted in English. He noticed that some members of the Interview Committee were not at ease when this statement was made by SADTU and they indicated a preference for IsiZulu. English was used during the interviews. He referred to the Minutes of the Interview Committee dated 4th November 2005 which was written in IsiZulu. The relevant portion of the Minutes translated into English reads as follows: “Mrs N S Mahaye then explained to the Unions that the IC has taken a decision in the meeting that the language to be used is IsiZulu. A representative of SADTU objected and said that English is going to be used since the post was a Principalship one. Mrs Mahaye then indicated that candidates better be allowed to use the language of their choice of which SADTU again objected to the statement. The candidates were then invited in – to be told about the status quo of the language that it will be in English.”
He did not question the use of English and each candidate was interviewed in English in order that the interview process could go on.
Under cross examination he testified that when the SADTU representative pointed out that English will be used during the interviews, none of the members of the Interview Committee objected. They kept quiet but Mrs Mahaye said that the candidates should use their own language. She did not however state that she was unhappy. He conceded that he was not present when the Interview Committee allegedly took the decision that IsiZulu will be used during the interviews. He confirmed that all the candidates were informed by the Interview Committee that English will be used during the interviews. None of the candidates objected to the use of English and the interviews proceeded without interruption.
The Applicant closed his case without leading any further evidence. The Respondent and the Joinder Party did not present any evidence and closed their respective cases.
The Applicant argued that he was disadvantaged during the interview process because he was precluded from using the language of his choice. He did not raise an objection to the use of English during his interview as he did not wish to be prejudiced by the Interview Committee.
The Respondent and the Joinder Party argued that there was no prejudice caused to the Applicant when English was used during the interviews. The Interview Committee agreed to use English and not IsiZulu. None of the candidates especially the Applicant objected to the decision of the Interview Committee. The process was transparent and without flaws and the Joinder Party was fairly and properly appointed to the post in question.
The Applicant in reply submitted that there was no agreement by the Interview Committee that English should be used.
ANALYSIS OF THE EVIDENCE AND LEGAL PRINCIPLES
The onus is upon the Applicant to show that he complied with all the requirements for the Post and that the Respondent committed an unfair labour practice.
An important feature of this case is the criteria laid down by the Interview Committee. The Respondent commenced with the selection process when the candidates submitted applications for the post. All applications without exception were completed in English. After the applications were sifted at the circuit office they were sent to the Interview Committee which had to start with the short listing process.
The Minutes of the Interview Committee dated 4th November 2005 clearly reflect that the Interview Committee preferred English over IsiZulu. The candidates were all informed of this stated preference. None of the candidates objected to the use of English. Above all no prejudice was caused to any of the candidates including the Applicant. In my view the Applicant ought to have raised an objection to the use of English should he have wished to be interviewed in IsiZulu. By not objecting at the critical moment he cannot now seek to complain that the interview process was flawed and that he was treated unfairly. It should also be mentioned that the Applicant completed his application form for the post in English. In addition both his dispute referral and grievance forms were completed by him in English. He has therefore clearly shown that he is proficient in English. There is no indication that the Applicant was unable to comprehend and partake meaningfully in the interview process. While it is understandable that the Applicant’s language of preference is IsiZulu and he may have been more comfortable in his language, it does not appear to me that he was at all prejudiced during the interview process and he therefore has no cause to complain.
Accordingly, in my view the interview process was fair, open and transparent.
AWARD
The dispute lodged by the Applicant is dismissed.
P GOVINDASAMY
ARBITRATOR
14th August 2006
Province: KwaZulu-Natal
Applicant: NATU obo Sikhakhane
Respondent: Kwazulu Natal Department of Education
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Education Regional Office Vryheid
Award Date: 14 August 2006
Arbitrator: P Govindasamy
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN
CASE NO. PSES 669/05/06 KZN
In the matter between: NATU obo B C SIKHAKHANE (APPLICANT) and DEPARTMENT OF EDUCATION – KWAZULU NATAL (RESPONDENT)
X C BUTHELEZI (JOINDER PARTY)
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
NATU referred the dispute on behalf of the Applicant who complained that the Respondent did not allow him to speak in the language of his choice during the interview for the post of principal under post number 6002 in terms of HRM Circular 55 of 2005.
All parties appeared at the hearing on 31st July 2006. The Applicant was represented by Mr SGE Mdunge of NATU, the Respondent was represented by Mr NC Ndlovu and the Joinder Party was represented by Mr BO Zulu of SADTU.
ISSUE TO BE DECIDED
Whether or not the Applicant has been unfairly treated when during the interview process he was not allowed to use the language of his choice, namely IsiZulu and if so whether the post of Principal under post number 6002 should be withdrawn and the process from the interview stage should be redone.
SURVEY AND ANALYSIS OF THE EVIDENCE AND ARGUMENT
It is common cause that:
NATU registered a grievance on behalf of the Applicant concerning the post of principal in question;
Despite the grievance having being lodged timeously with the Respondent, the post was filled by the appointment of the Joinder Party;
The post was subsequently withdrawn but the grievance was not heard;
The Joinder Party was subsequently reinstated to the post of principal;
The Respondent failed to deal with the grievance;
Any flaw which emanated from the failure to deal with the grievance was cured by the dispute being referred to the ELRC.
Applicant’s Case
Sthembiso David Shongwe, a Senior Education Manager for the Mahlabathini Circuit testified on behalf of the Applicant. He said that he was authorised to act on behalf of the Chief Executive Officer of the Respondent. When the Joinder Party was appointed to Post number 6002/05 he introduced him to the staff at theNtandakuwela Primary School. However the Circuit Manager, Mr Nselele instructed him to withdraw the principal from the school as a grievance was lodged against the post. The post was subsequently withdrawn. Later however the Joinder Party was reinstated to the post when a letter dated 2nd February 2006 was sent to him. Under cross examination, he emphasized that under and by delegated authority he had the power to appoint and withdraw any placement. Although he did not personally see the document lodged by the Applicant concerning the latter’s grievance, he heard that there was in fact a grievance.
Elliot Lymon Mzokhanyayo Dumakude testified that he was delegated by the Respondent to act as the departmental official and resource person in the interview process. He recalled that all the parties representatives including SADTU and NATU had a short discussion regarding the language to be used during the interview process. SADTU said that the interviews should be conducted in English. He noticed that some members of the Interview Committee were not at ease when this statement was made by SADTU and they indicated a preference for IsiZulu. English was used during the interviews. He referred to the Minutes of the Interview Committee dated 4th November 2005 which was written in IsiZulu. The relevant portion of the Minutes translated into English reads as follows: “Mrs N S Mahaye then explained to the Unions that the IC has taken a decision in the meeting that the language to be used is IsiZulu. A representative of SADTU objected and said that English is going to be used since the post was a Principalship one. Mrs Mahaye then indicated that candidates better be allowed to use the language of their choice of which SADTU again objected to the statement. The candidates were then invited in – to be told about the status quo of the language that it will be in English.”
He did not question the use of English and each candidate was interviewed in English in order that the interview process could go on.
Under cross examination he testified that when the SADTU representative pointed out that English will be used during the interviews, none of the members of the Interview Committee objected. They kept quiet but Mrs Mahaye said that the candidates should use their own language. She did not however state that she was unhappy. He conceded that he was not present when the Interview Committee allegedly took the decision that IsiZulu will be used during the interviews. He confirmed that all the candidates were informed by the Interview Committee that English will be used during the interviews. None of the candidates objected to the use of English and the interviews proceeded without interruption.
The Applicant closed his case without leading any further evidence. The Respondent and the Joinder Party did not present any evidence and closed their respective cases.
The Applicant argued that he was disadvantaged during the interview process because he was precluded from using the language of his choice. He did not raise an objection to the use of English during his interview as he did not wish to be prejudiced by the Interview Committee.
The Respondent and the Joinder Party argued that there was no prejudice caused to the Applicant when English was used during the interviews. The Interview Committee agreed to use English and not IsiZulu. None of the candidates especially the Applicant objected to the decision of the Interview Committee. The process was transparent and without flaws and the Joinder Party was fairly and properly appointed to the post in question.
The Applicant in reply submitted that there was no agreement by the Interview Committee that English should be used.
ANALYSIS OF THE EVIDENCE AND LEGAL PRINCIPLES
The onus is upon the Applicant to show that he complied with all the requirements for the Post and that the Respondent committed an unfair labour practice.
An important feature of this case is the criteria laid down by the Interview Committee. The Respondent commenced with the selection process when the candidates submitted applications for the post. All applications without exception were completed in English. After the applications were sifted at the circuit office they were sent to the Interview Committee which had to start with the short listing process.
The Minutes of the Interview Committee dated 4th November 2005 clearly reflect that the Interview Committee preferred English over IsiZulu. The candidates were all informed of this stated preference. None of the candidates objected to the use of English. Above all no prejudice was caused to any of the candidates including the Applicant. In my view the Applicant ought to have raised an objection to the use of English should he have wished to be interviewed in IsiZulu. By not objecting at the critical moment he cannot now seek to complain that the interview process was flawed and that he was treated unfairly. It should also be mentioned that the Applicant completed his application form for the post in English. In addition both his dispute referral and grievance forms were completed by him in English. He has therefore clearly shown that he is proficient in English. There is no indication that the Applicant was unable to comprehend and partake meaningfully in the interview process. While it is understandable that the Applicant’s language of preference is IsiZulu and he may have been more comfortable in his language, it does not appear to me that he was at all prejudiced during the interview process and he therefore has no cause to complain.
Accordingly, in my view the interview process was fair, open and transparent.
AWARD
The dispute lodged by the Applicant is dismissed.
P GOVINDASAMY
ARBITRATOR
14th August 2006