PSES 469-09/10
PSES 469-09/10
Award Date:
20 November 2010
Case Number: PSES 469-09/10
Province: Gauteng
Applicant: M K Motuba
Respondent: Gauteng Department of Education
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Johannesburg
Award Date: 20 November 2010
Arbitrator: Ravi Naidoo
ARBITRATION AWARD
Commissioner:
Ravi Naidoo
Case No:
PSES 469-09/10
Date of Ruling:
20 November 2010
IN THE MATTER BETWEEN:
NAPTOSA obo M K Motuba
Union / Applicant / Employee party
And
Gauteng Department of Education
Respondent / Employer party
Union/Employee’s representative:
Union/Employee’s address:
Telephone:
Fax:
Employer’s representative:
Employer’s Address:
Telephone:
Fax:
1.DETAILS OF HEARING AND REPRESENTATION:
The arbitration hearing commenced on the 04 November 2010 and was finalised on the same day at the offices of the Department of Education in Johannesburg. The applicant M K Motuba were represented by Roger Cope from NAPTOSA. The respondent, Gauteng Department of Education, was represented by Laura Moeletsi from the labour relations department.
2.Issues to be decided:
The issue in dispute relates to an alleged Unfair Labour Practice concerning a promotion. The applicant alleged that the scoring of her interview was manipulated and as a result the applicant was disadvantaged.
3.Background to the issues:
The applicant applied for the post of principal at Pretoria Primary School. The applicant had acted in the post for the period 01 September 2010 to 11 January 2010. The applicant currently occupies the post of Deputy Pricipal at Baludikgoro Primary School. The applicant has occupied the aforementioned post since 1997. The applicant seeks to be appointed into the post of principal at Pretoria Primary School.
4. Survey of the evidence and argument:
4.1 Evidence of the Applicant
4.1.1 The applicant, Martha Kwena Motuba, testified as follows
1) The applicant indicated that she was approached by Dr Human (the IDSO) in 2008 to start up the Pretoria Primary School.
2) The applicant started the school with the help of six inner city Principals.
3) Dr Human indicated to the applicant that she was selected to start up the school because she was considered competent and efficient.
4) The interviews for the disputed post were conducted in September 2009.
5) The post was filled in January 2010.
6) The applicant received a letter from the Department of Education indicating that a principal had been appointed into the post. The applicant was instructed to do a handover by the 12 January 2010 and report back to her post as Deputy Principal at her previous school.
7) The applicant alleged that she had the support of the School Governing Body (SGB) and teachers and that the school ran smoothly during her tenure as acting principal.
8) The applicant indicated that the SGB supported her application for the post. The applicant alleged that the SGB Chaiperson indicated that “we have a principal and we are not going to look for another principal.”
9) The applicant alleged that when she submitted her application the SGB chairperson accompanied her to do so.
10) The applicant believed that the person who was acting in the post had a greater advantage of obtaining appointment into the post.
11) None of the recommended candidates were based at the school.
12) The applicant indicated that the highest score obtained in the interview was 187, whilst she obtained the lowest score of 116. The applicant was surprised that she was ranked last. The applicant is of the view that the panel viewed her as “useless”.
13) The applicant believes that one of the reasons for not being appointed was because she was a women.
14) The applicant intimated that the panel originally caucused and indicated that they wanted the applicant as principal, therefore the focus should have only been on her as the chosen candidate.
15) The applicant believed that the SGB had a change of heart because she questioned certain procurement procedures of the SGB.
4.1.2 Cross Examination
1) The applicant did not expect the SGB to influence the decision of the panel.
2) The post was advertised in an “open vacancy list”, meaning that anybody could apply for the post.
3) The applicant indicated that she is not familiar with the appointed candidates profile and competency.
4) The IDSO, Gnade, indicated to the applicant that the process was being influenced by the District Office.
5) The applicant is not aware of the number of females that were recommended for appointment into the post. On perusal of the recommendations, the applicant agreed that a female was recommended for appointment.
6) The applicant alleged that the panel earmarked the person to be appointed.
7) The applicant indicated that she had no issue with the composition of the interview panel.
8) The applicant believed that because she initiated the school, she should have had an entitlement to the post.
9) The applicant indicated that she is not familiar with the background and competence of the other candidates who were interviewed.
10) The applicant agreed that there was no discrimination by the panel on the basis of gender.
4.1.3 Re-Examination
1) As per the minutes of the interviews, it is indicative that the union representatives were excluded from the process when the preference list was compiled.
4.1.4 Witness: Doreen Sophie Mampuru testified as follows:
1) The witness was an observer at the interviews which convened on 20 September 2009.
2) The questions for the interview was not prepared in the witness’s presence. The questions were prepared prior to the interview.
3) The witness expressed the opinion that there was no significant difference in the way in which the candidates answered the questions.
4) The witness does not believe that the panel had a predetermined candidate in mind during the interviews.
5) The witness was asked to leave when the panel began discussions concerning the recommendations. Two members of the SGB were also asked to leave. The witness believes that this was irregular. The final decision should have been made in the presence of all present, including the observers.
4.1.5 Cross Examination
1) The witness indicated that her grievance included her recusal from the decision making process.
2) The witness indicated that she did not see the score sheets of the interview panel before she left the room.
3) The witness made the allegation that the applicant’s score was tampered with. (No evidence was presented to support this claim)
4) The witness could not recall the scores that were given to the applicant by the panel.
5) The confirmed that on the score sheets of the applicant which appeared in the bundle of documents, there was no alteration to the applicant’s scores.
6) The witness indicated that she does not believe that her recusal, at the point at which the panel was making a decision on the choice of candidate, prejudiced the applicant in any way.
7) According to the witness, all candidates were treated fairly at the interview in the witness’s presence.
4.1.6 Witness : Johrina Human testified as follows:
1) The witness is employed in the capacity of IDSO for the Gauteng Department of Education.
2) The applicant is known to the witness as a Deputy Principal.
3) The witness was one of the people to motivate for the applicant to act as principal at Pretoria Primary School.
4) The applicant in the witness’s opinion has strong administrative skills.
5) The witness instigated the appointment of the applicant as the acting principal for Pretoria Primary School.
6) The district office had confidence in the applicant to initiate the Pretoria Primary School.
7) The witness could not comment on the functioning of the school when the applicant was acting as principal.
8) The witness was surprised that the applicant received the lowest score in the interviews.
4.1.7 Cross Examination
1) Usually when somebody acts in a post the person is regarded as a strong candidate for the post.
2) It is not a rule that if one acts in a position that one would be entitiled to be appointed into the position.
3) The Department does caution people acting in positions not to have any expectation of being appointed into the position.
4.1.8 witness: Jeanette Ramollo
Nothing of relevance was testified to by this witness.
4.2 Evidence of the Respondent
4.2.1 Witness Asnath Cynthia Mandolo testified as follows:
1) The witness is the SGB chairperson of the Pretoria Primary School.
2) The witness was part of the interview panel who interviewed the applicant.
3) The witness indicated that there was no pre –caucus by the panel as to who should be appointed.
4) Gender did not feature as a defining criteria for appointment into the post.
5) At no time were any score sheets altered during or after the interviews.
6) After the interviews were conducted, the score sheets were given to the secretary to cross check the scoring.
7) The union observers were made aware of the scores obtained by the candidates.
8) A SGB meeting was convened after the interviews and the recommendations were ratified by the SGB
5. Analysis
1) The applicant in this matter disputed the appointment made into the post of Principal at Pretoria Primary School. The applicant was of the view that she should have been the preferred candidate for appointment. Somehow the applicant reached the conclusion that the SGB had earmarked her for the post and they at a point changed their mind about her appointment. There is, however, no such evidence to support such a claim. It would seem more probable that the applicant had the expectation to be appointed into the post of principal at Pretoria Primary School because she was responsible for starting up the the school and because she acted in the post as principal. Whilst the applicants noble efforts must be commended in dedicating herself to the task at hand with minimal resources, this in itself does not lend to a fair procedure for appointment into the post. The applicant’s own witness, Human, testified that when one acts in a post, there should not be any expectation to be appointed into the post. This is in line with the precedence set by the higher courts that acting in a post does not guarantee appointment into the post. The candidate might have an advantage of knowing what the post entails and that I suppose is the advantage that could be used by the applicant in competing for the post. It, however, does not in any way guarantee the appointment into the post. If it was the norm that a person acting in a post is automatically appointed into a post, then the Department of Education would have no reason to advertise the post in an open vacancy list. Furthermore if the applicant’s submission that the SGB had earmarked her for the post and that their focus should have only been her appointment to the post, is true, then such action would amount to a gross irregularity as it would have suggested that the panel had pre-determined its choice and was without any sincerity conducted the interviews just to give the impression that a fair procedure was followed. Thus it would seem, by the applicant’s own submission, she expected the panel to misconduct itself and advance her appointment into the post.
2) The panel, however, followed a fair procedure in arriving at its conclusion. There is no evidence to suggest otherwise. In fact the applicant’s own witness, Mampuru, indicated that all the candidates for the post were treated fairly in her presence. Mampuru further indicated under cross examination that she did not think that the applicant was prejudiced in any way when the observers were asked to recuse themselves when the panel sat to deliberate on the appropriate candidate for the post.
3) The allegation that the scores were altered and tampered with, has absolutely no merit. There is no evidence to support this claim. In fact the score sheets that were produced as evidence indicated that there were no alterations made to any of the panelist score sheets and therefore the claim that scores were altered was unfounded.
4) I therefore can find no merit in the applicant’s argument that she had been disadvantaged by irregularity during the interview process. There is no evidence presented to suggest that such irregularity concerning the altering or tampering with the scoring of the applicant’s interview, by the panel members, ever existed. This is a claim without any evidentiary basis.
5) Accordingly I find that the applicant has failed to establish the existence of any unfair labour practice as alleged.
6. Award
The applicant has failed to establish the existence of an Unfair Labour Practice
The matter is accordingly dismissed.
Signed and dated on this the 20th day of November 2010
Ravi Naidoo
ELRC Commissioner
Province: Gauteng
Applicant: M K Motuba
Respondent: Gauteng Department of Education
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Johannesburg
Award Date: 20 November 2010
Arbitrator: Ravi Naidoo
ARBITRATION AWARD
Commissioner:
Ravi Naidoo
Case No:
PSES 469-09/10
Date of Ruling:
20 November 2010
IN THE MATTER BETWEEN:
NAPTOSA obo M K Motuba
Union / Applicant / Employee party
And
Gauteng Department of Education
Respondent / Employer party
Union/Employee’s representative:
Union/Employee’s address:
Telephone:
Fax:
Employer’s representative:
Employer’s Address:
Telephone:
Fax:
1.DETAILS OF HEARING AND REPRESENTATION:
The arbitration hearing commenced on the 04 November 2010 and was finalised on the same day at the offices of the Department of Education in Johannesburg. The applicant M K Motuba were represented by Roger Cope from NAPTOSA. The respondent, Gauteng Department of Education, was represented by Laura Moeletsi from the labour relations department.
2.Issues to be decided:
The issue in dispute relates to an alleged Unfair Labour Practice concerning a promotion. The applicant alleged that the scoring of her interview was manipulated and as a result the applicant was disadvantaged.
3.Background to the issues:
The applicant applied for the post of principal at Pretoria Primary School. The applicant had acted in the post for the period 01 September 2010 to 11 January 2010. The applicant currently occupies the post of Deputy Pricipal at Baludikgoro Primary School. The applicant has occupied the aforementioned post since 1997. The applicant seeks to be appointed into the post of principal at Pretoria Primary School.
4. Survey of the evidence and argument:
4.1 Evidence of the Applicant
4.1.1 The applicant, Martha Kwena Motuba, testified as follows
1) The applicant indicated that she was approached by Dr Human (the IDSO) in 2008 to start up the Pretoria Primary School.
2) The applicant started the school with the help of six inner city Principals.
3) Dr Human indicated to the applicant that she was selected to start up the school because she was considered competent and efficient.
4) The interviews for the disputed post were conducted in September 2009.
5) The post was filled in January 2010.
6) The applicant received a letter from the Department of Education indicating that a principal had been appointed into the post. The applicant was instructed to do a handover by the 12 January 2010 and report back to her post as Deputy Principal at her previous school.
7) The applicant alleged that she had the support of the School Governing Body (SGB) and teachers and that the school ran smoothly during her tenure as acting principal.
8) The applicant indicated that the SGB supported her application for the post. The applicant alleged that the SGB Chaiperson indicated that “we have a principal and we are not going to look for another principal.”
9) The applicant alleged that when she submitted her application the SGB chairperson accompanied her to do so.
10) The applicant believed that the person who was acting in the post had a greater advantage of obtaining appointment into the post.
11) None of the recommended candidates were based at the school.
12) The applicant indicated that the highest score obtained in the interview was 187, whilst she obtained the lowest score of 116. The applicant was surprised that she was ranked last. The applicant is of the view that the panel viewed her as “useless”.
13) The applicant believes that one of the reasons for not being appointed was because she was a women.
14) The applicant intimated that the panel originally caucused and indicated that they wanted the applicant as principal, therefore the focus should have only been on her as the chosen candidate.
15) The applicant believed that the SGB had a change of heart because she questioned certain procurement procedures of the SGB.
4.1.2 Cross Examination
1) The applicant did not expect the SGB to influence the decision of the panel.
2) The post was advertised in an “open vacancy list”, meaning that anybody could apply for the post.
3) The applicant indicated that she is not familiar with the appointed candidates profile and competency.
4) The IDSO, Gnade, indicated to the applicant that the process was being influenced by the District Office.
5) The applicant is not aware of the number of females that were recommended for appointment into the post. On perusal of the recommendations, the applicant agreed that a female was recommended for appointment.
6) The applicant alleged that the panel earmarked the person to be appointed.
7) The applicant indicated that she had no issue with the composition of the interview panel.
8) The applicant believed that because she initiated the school, she should have had an entitlement to the post.
9) The applicant indicated that she is not familiar with the background and competence of the other candidates who were interviewed.
10) The applicant agreed that there was no discrimination by the panel on the basis of gender.
4.1.3 Re-Examination
1) As per the minutes of the interviews, it is indicative that the union representatives were excluded from the process when the preference list was compiled.
4.1.4 Witness: Doreen Sophie Mampuru testified as follows:
1) The witness was an observer at the interviews which convened on 20 September 2009.
2) The questions for the interview was not prepared in the witness’s presence. The questions were prepared prior to the interview.
3) The witness expressed the opinion that there was no significant difference in the way in which the candidates answered the questions.
4) The witness does not believe that the panel had a predetermined candidate in mind during the interviews.
5) The witness was asked to leave when the panel began discussions concerning the recommendations. Two members of the SGB were also asked to leave. The witness believes that this was irregular. The final decision should have been made in the presence of all present, including the observers.
4.1.5 Cross Examination
1) The witness indicated that her grievance included her recusal from the decision making process.
2) The witness indicated that she did not see the score sheets of the interview panel before she left the room.
3) The witness made the allegation that the applicant’s score was tampered with. (No evidence was presented to support this claim)
4) The witness could not recall the scores that were given to the applicant by the panel.
5) The confirmed that on the score sheets of the applicant which appeared in the bundle of documents, there was no alteration to the applicant’s scores.
6) The witness indicated that she does not believe that her recusal, at the point at which the panel was making a decision on the choice of candidate, prejudiced the applicant in any way.
7) According to the witness, all candidates were treated fairly at the interview in the witness’s presence.
4.1.6 Witness : Johrina Human testified as follows:
1) The witness is employed in the capacity of IDSO for the Gauteng Department of Education.
2) The applicant is known to the witness as a Deputy Principal.
3) The witness was one of the people to motivate for the applicant to act as principal at Pretoria Primary School.
4) The applicant in the witness’s opinion has strong administrative skills.
5) The witness instigated the appointment of the applicant as the acting principal for Pretoria Primary School.
6) The district office had confidence in the applicant to initiate the Pretoria Primary School.
7) The witness could not comment on the functioning of the school when the applicant was acting as principal.
8) The witness was surprised that the applicant received the lowest score in the interviews.
4.1.7 Cross Examination
1) Usually when somebody acts in a post the person is regarded as a strong candidate for the post.
2) It is not a rule that if one acts in a position that one would be entitiled to be appointed into the position.
3) The Department does caution people acting in positions not to have any expectation of being appointed into the position.
4.1.8 witness: Jeanette Ramollo
Nothing of relevance was testified to by this witness.
4.2 Evidence of the Respondent
4.2.1 Witness Asnath Cynthia Mandolo testified as follows:
1) The witness is the SGB chairperson of the Pretoria Primary School.
2) The witness was part of the interview panel who interviewed the applicant.
3) The witness indicated that there was no pre –caucus by the panel as to who should be appointed.
4) Gender did not feature as a defining criteria for appointment into the post.
5) At no time were any score sheets altered during or after the interviews.
6) After the interviews were conducted, the score sheets were given to the secretary to cross check the scoring.
7) The union observers were made aware of the scores obtained by the candidates.
8) A SGB meeting was convened after the interviews and the recommendations were ratified by the SGB
5. Analysis
1) The applicant in this matter disputed the appointment made into the post of Principal at Pretoria Primary School. The applicant was of the view that she should have been the preferred candidate for appointment. Somehow the applicant reached the conclusion that the SGB had earmarked her for the post and they at a point changed their mind about her appointment. There is, however, no such evidence to support such a claim. It would seem more probable that the applicant had the expectation to be appointed into the post of principal at Pretoria Primary School because she was responsible for starting up the the school and because she acted in the post as principal. Whilst the applicants noble efforts must be commended in dedicating herself to the task at hand with minimal resources, this in itself does not lend to a fair procedure for appointment into the post. The applicant’s own witness, Human, testified that when one acts in a post, there should not be any expectation to be appointed into the post. This is in line with the precedence set by the higher courts that acting in a post does not guarantee appointment into the post. The candidate might have an advantage of knowing what the post entails and that I suppose is the advantage that could be used by the applicant in competing for the post. It, however, does not in any way guarantee the appointment into the post. If it was the norm that a person acting in a post is automatically appointed into a post, then the Department of Education would have no reason to advertise the post in an open vacancy list. Furthermore if the applicant’s submission that the SGB had earmarked her for the post and that their focus should have only been her appointment to the post, is true, then such action would amount to a gross irregularity as it would have suggested that the panel had pre-determined its choice and was without any sincerity conducted the interviews just to give the impression that a fair procedure was followed. Thus it would seem, by the applicant’s own submission, she expected the panel to misconduct itself and advance her appointment into the post.
2) The panel, however, followed a fair procedure in arriving at its conclusion. There is no evidence to suggest otherwise. In fact the applicant’s own witness, Mampuru, indicated that all the candidates for the post were treated fairly in her presence. Mampuru further indicated under cross examination that she did not think that the applicant was prejudiced in any way when the observers were asked to recuse themselves when the panel sat to deliberate on the appropriate candidate for the post.
3) The allegation that the scores were altered and tampered with, has absolutely no merit. There is no evidence to support this claim. In fact the score sheets that were produced as evidence indicated that there were no alterations made to any of the panelist score sheets and therefore the claim that scores were altered was unfounded.
4) I therefore can find no merit in the applicant’s argument that she had been disadvantaged by irregularity during the interview process. There is no evidence presented to suggest that such irregularity concerning the altering or tampering with the scoring of the applicant’s interview, by the panel members, ever existed. This is a claim without any evidentiary basis.
5) Accordingly I find that the applicant has failed to establish the existence of any unfair labour practice as alleged.
6. Award
The applicant has failed to establish the existence of an Unfair Labour Practice
The matter is accordingly dismissed.
Signed and dated on this the 20th day of November 2010
Ravi Naidoo
ELRC Commissioner