Case Number: PSES422-09/10WC
Province: Western Cape
Applicant: Siphokasi Bakala-Mbanza (maiden name: Marashula)
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Offices of the Labour Relations Department in Cape Town
Award Date: 19 January 2011
Arbitrator: Bella Goldman
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CAPE TOWN
Case No PSES422-09/10WC
In the matter between
Siphokasi Bakala-Mbanza (maiden name: Marashula) Applicant
Department of Education Western Cape 1st Respondent
Zodwa Mdliva 2nd Respondent
ARBITRATOR: Bella Goldman
HEARD: 11 October and 23 November 2010
DELIVERED: 19 January 2011
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (a) - alleged unfair conduct relating to promotion
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter concerned a promotional dispute. It was scheduled for an arbitration hearing at the offices of the Labour Relations Department in Cape Town on 11 October 2010, the matter was part heard on that day and was postponed as the applicant was seeking the post she unsuccessfully applied for and the successful incumbent was not joined as second respondent. The successful incumbent Ms Zodwa Mdliva was joined in terms of a ruling dated 22 October 2010 and the matter continued on 23 November 2010. Mr Piet Loyal, SATAWU official represented the applicant on 11 October 2010 after which she presented her own case. Mr Ayanda Mniki, Labour Relations Officer represented the 1st respondent and Mr Bongani Magqaza represented the 2nd respondent. The proceedings were digitally recorded. It was agreed that closing argument would be submitted in writing. The 2nd respondent did not submit argument.
ISSUE TO BE DECIDED
2. I have to decide whether or not the employee was subjected to an unfair labour practice in terms of the Labour Relations Act 1995 as amended (LRA) by not being short listed for the Post Level 1 post of Deputy Principal at WallacedenePrimary School. The 2nd respondent was appointed to the post in question. The applicant is claiming the post in terms of relief.
BACKGROUND TO THE ISSUE
3. The respondent is employed by the respondent as an Educator at Wallacedene Primary School. In August 2009 three posts for Wallacedene were advertised. They were the posts of Principal, Deputy Principal and Head of Department. The applicant applied for the advertised position of Deputy Principal for which she was not short listed. The applicant claimed that the process of short listing was unfair and that the decision to employ the successful candidate Zodwa Mdliva was pre determined. The interviews were held in October 2009, the applicant declared a dispute in October 2009 and the respondent confirmed Mdliva’s appointment in July 2010.
4. The criteria against which applicants’ abilities were measured were elicited from CVs, testimonials, covering letter and application forms. The criteria were those as per the advertisement which were:
· Proven and successful managerial skills
· Comprehensive administration & organisational skills
· Sound Knowledge of IQMS and whole school development
· Knowledge and experience of CESMI administration registering and time tabling
· Ability to maintain good discipline
· Prove record of taking initiative
· Teaching experience in primary school
· Experience and coordination in extra curricular activities
· Minimum 4 year training qualification
· At least 5 years teaching experience
· Managerial experience in NCS
· Xhosa speaking an advantage
5. Two additional criteria were listed which were to be used if necessary in cases of a tie which were:
· Experience as Acting Deputy Principal / Principal
· Experience as Acting HOD
· The respondent stated that the SGB decided not to include the criteria of ‘proven record of taking initiative’ in coming to a decision as they decided that it could not be shown through the submission of applications forms, covering letters, testimonials and CVS.
6. The five short listed candidates were Mdliva, Feni, Zigebe, Ningiza and Mthathamba.
SURVEY OF THE EVIDENCE AND ARGUMENT
7. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
8. The respondent submitted bundles of documents in evidence which were agreed as being what they purported to be. The bundle was marked ’A’ ‘B’ and ‘C’. The bundles were made up of the minutes of the meeting at which the short listing of applicants was decided, the short listing matrix against which the applicants were scored; the short listed and the applicant’s score sheets as well as their applications forms, CV’s and covering letters.
The applicant Siphokasi Bakala-Mbanza gave evidence and called three witnesses: Paul Taduxuklo Mousa, ex SGB member, Mawethu Jikwana, NAPTOSA Union Official and Manana Ranamane, SADTU official. All gave evidence under oath. The following is a summary of their testimonies:
9. The applicant was previously an Educator at Enkululekweni Primary School which in February 2009 became two schools one of which was Wallacedene Primary School. The applicant stated that Mdliva, the successful applicant was a member of the school’s SGB and that she believed that the decision to appoint her had been predetermined and that the process of selection had been unfair. She referred to the following to substantiate her claim:
· That the short listing criteria were unfair.
· That the scoring of the short listed candidates CV and covering letter against the short listing criteria was unfair in that the applicant’s score and that of the short listed candidates were incorrectly calculated. In that of a possible 56 marks including ‘Proven record of taking initiative’ (4 marks maximum) the applicant scored 51 points, Feni scored 51 points, Mdliva scored 50 points, Ningiza scored 50 points and Sibidla scored 50 points.
· That the score sheets of short listed applicants appeared to have been tampered with, in that some of the scores were altered and the signature/ initials of Paul Mousa, the SGB member who signed the score sheets appeared to have been forged next to the alterations.
· That Mdliva was advantaged by being a member of the SGB and hence was privy to information about the post in question and other posts advertised at the same time.
· She stated that Mdliva had been advantaged by being present at a special meeting of the SGB held on 9 October at which the criteria fort short listing for that post and that of the Principal post were discussed.
· That in terms of the recruitment and selection and policy and prevailing practices Mdliva should not have been short listed in that she did not attach a copy of her diploma to the application but submitted a statement of symbols achieved.
· That she was advantaged at her interview by having been present at the interviews of the HOD and the Principal at which the applicants would have been asked similar questions to the ones which she was asked at her interview.
· In about January 2010 the applicant heard the Chairperson of the SGB Ms Mokitimi telling another member of the SGB that the SGB has appointed the persons we wanted to but one of them has to submit her Diploma certificate
10. The applicant stated that she was more qualified than Mdliva for the post as Mdliva was in possession of a Junior Primary Teaching Diploma and a B Tech degree in Education whilst the applicant was in possession of a B A degree and a B Ed degree.
11. The applicant referred to Mdliva’s CV, in terms of which, under the heading of ‘Qualifications’ Mdliva stated that she had a ‘Multilingual Education Qualification from UCT’ for which she did not include proof of the qualification; it was common cause that Mdliva did not complete this qualification.
12. The applicant said that at the conciliation / pre arb meeting held in January 2010 the respondent stated that a moratorium had been placed on that post until the finalisation of the dispute, yet the 2nd respondent’s appointment was confirmed in July 2010.
Paul Taduxuklo Mousa
13. The witness was a member of the school’s SGB until November 2009. He stated that Mdliva was a member of the SGB and that she attended the SGB meeting at which the criteria in terms of which the applicants for the three posts which were advertised together would be measured for short listing purposes were discussed.
14. The witness stated that at the short listing meeting it was noted that Mdliva’s Teaching Diploma from the Good Hope College of Education was not as per mandatory requirements attached to the application and both union officials objected in this regard. However Ms Maqunqo the Acting Principal said that Mdliva could submit the Diploma certificate later and both Mr Van den Berg the Departmental Representative and Ms Mokitimi the Chairperson confirmed that this would be in order and Mdliva was short listed for the position.
15. The applicant referred to a number of the score sheets which he signed on which scores had been altered and initialled in his name. The witness stated that he did not initial those alterations and that in those cases his initials were forged.
16. The witness stated that Van den Beg did not provide them with guidelines as to how to elicit the evidence of the criteria from the documentation.
17. The witness further stated that the process was unfair in that Mdliva the successful applicant was further advantaged by being present in her capacity as Secretary of the SGB at the earlier interviews for the HOD and Principal posts at which similar questions to those put to the short listed applicants for the Deputy Principal post were asked.
18. The applicant stated that the decision to appoint Ms Mdliva had been predetermined as substantiated by the fact that after the short listing process a member of the SGB by the name of Ms Desemela told the witness that should Mdliva be appointed he would also be employed at the school. The witness stated that he has not been employed at the school but that both Ms Desemela and Ms Mokitini (chairperson of the SGB) are employed by the school as cooks.
19. The witness acted as observer for NAPTOSA at the short listing meeting of 15 October 2009. He referred to the irregularities with the process of short listing the applicants for the post of Deputy Principal which he reported to the NAPTOSA. The irregularities she referred to were:
20. Neither he nor the SADTU representative was present at the meeting when the short listing criteria were decided and they should have been. He stated that the successful applicant Mdliva was at that meeting in her capacity as secretary of the SGB and that she was advantaged by being there, as she would have known the criteria upon which applicants would be short listed, prior to submitting her application for the post and she would have known that the information would be elicited from the documents sent by each applicant.
21. The witness said that at the short listing meeting the group was divided into two and all the applicants were scored against the criteria. The applicant was scored highest by one group and lowest by the other group. Both the Ms Maqunqo the Acting Principal and Zweni a member of the SGB who were in the second group said that the applicant’s high score as rated by the first group was not indicative of the applicant’s ability.
22. The witness stated that both he and the SADTU representative objected to Mdliva being short listed as she did not enclose a certified copy of her Teaching Diploma which is a mandatory requirement and is stated as being so in the Bulletin in which the post was advertised. Both Mokitini (chairperson) and Zweni, member of the SGB stated that Mdliva could not be eliminated from the short listing as she was an Educator. The witness said that both he and the SADTU representative raised this concern with the Departmental Representative, Mr Van Den Burg at the short listing meeting, however he allowed the process to continue and Mdliva to be short listed.
23. The witness stated that the criteria of Discipline and Initiative were not removed as indicated by Van den Berg and that he was there for the whole of the meeting. The witnesses stated that the alterations to some of the scores on the score sheets he signed were fraudulent and made after the meeting. The score sheets he referred to were those of Feni, Mthathamba, Ningiza and the applicant
24. The witness acted as observer for SADTU at the short listing meeting October 2009. She stated that Mdliva was advantaged by attending the meeting at which the short listing criteria were decided for all three posts and attending the interview meetings of the other two posts held earlier and advertised at the same time as the post inn question.
25. The witness stated that she objected to Mdliva being short listed as result of not attaching a certified copy of her Teaching Diploma, Van den Berg, the departmental representative initially upheld the objection but then allowed Mdliva’s application to be considered.
26. The witness stated that she reported the irregularities to the SADTU office.
Employer’s Evidence (1st Respondent)
The respondent called three witnesses: Barend Van den Berg, Institutional Management and Governance (IMG) Manager, Mandokose Maqunqo Acting Principal from January to December 2009 and Siyabulela Zweni, Member of SGB and Minute Taker at meeting of 15 October 2009. All gave evidence under oath. The following is a summary of their testimonies:
Barend Van den Berg
27. The witness attended the short listing meeting held on 15 October 2010 as the Departmental Representative. The witness stated that he had attended a previous meeting at which it was decided that the short listing criteria should be those reflected in the advertisement. The witness confirmed that Mdliva attended that meeting but stated that that she would not have been advantaged by such attendance as the method of eliciting the criteria were not discussed.
28. The witness confirmed that there is rule which requires applicants for employment to attach certified copies of their qualifications to their applications for position and that Mdliva did not attach a certified copy of her Teaching Diploma but attached her statement of symbols for the last year of study. The union representatives objected and were unhappy about this. The witness phoned Jan Kotze, the Circuit Manager to seek guidance in this regard. Kotze conformed that a statement of symbols could be accepted as many Colleges of Education had closed down and obtaining copy qualification certificates from such institutions was very difficult.
29. The witness confirmed that Mdliva did not attach a certified copy of the UCT qualification she referred to in her CV and that this was not serious as this diploma was not a requirement of the position.
30. The witness stated that he did not check each score sheet as his role is only one of support and at the time he was not sure as to what extent he could partake in the process. He stated that had he noted the errors he would have ordered the process to be redone. The witness stated that it was the job of the Union representatives to check the score sheets. He later conceded that he should have checked the score sheets and had he done so he would have noted that in some cases applicants were scored twice for the same criteria and that in some cases the scores were wrongly added up.
31. The witness said that the Circuit Manager, Jan Kotze made the decision to confirm the 2nd respondent’s appointment in July 2010 as the dispute was taking so long to resolve.
32. The witness was Acting Principal from January to December 2009. The witness stated that she attended the SGB meetings in her capacity as Principal. She said that Mdliva excused herself from all processes where the post of Deputy Principal for which she applied for were discussed.
33. The witness confirmed that the issue of the non attachment of Mdliva’s Teaching Diploma was raised by the Union Representatives but that Van den Berg; the departmental Representative made enquiries with the Circuit Manager in this regard who confirmed that a statement of symbols would suffice.
34. The witness stated that once the applicants’ abilities in terms of ‘Proven record of taking initiative and Ability to Maintain Discipline’ were scored for short listing process against the documentation the applicants supplied it was decided not to consider these scores as it was decided that initiative and discipline could not be measured in this manner. Initially the witness stated that only the criteria relating to initiative were removed, later she stated that it could have been both the criteria of initiative and discipline which were removed.
35. The witness agreed that the scores were in some instances wrongly calculated. She could not when asked explain or substantiate how the various criteria could be or were elicited from the documentation supplied. The witness denied that the decision to appoint Mdliva was predetermined or that she was favoured. The witness could not remember that the score sheets were altered.
36. The witness was a member of SGB. She referred to her handwritten minutes of the meeting of 15 October 2010 and stated that she acted as Secretary at the meeting of 15 October 2010. The witness could not remember if the criteria for short listing were discussed at an earlier meeting of the SGB and whether Ms Mdliva was present at that meeting.
37. The witness said that at the meeting there were objections to accepting Ms Mdliva application form as a result of the fact that she did not attach a certified copy of her Teaching Diploma to her application form but that Van den Berg stated after making enquires that the SGB could accept her qualification. The witness stated that there was no objection with regard to Mdliva not submitting a certificate with regard to the UCT qualification she referred to in her CV.
38. The witness stated that reference to applicants acting as HODs and Deputy Principals were used to allocate points to the applicants in terms of certain criteria.
39. The parties submitted argument in support of their respective cases which I will refer to where necessary in my analysis.
The 2nd respondent Zodwa Mdliva gave evidence under oath. The following is a summary of her testimony.
40. The 2nd respondent denied attending meetings at which criteria with regard to short listing were discussed or being advantaged in any way. She stated she excused herself from the short listing meeting of 15 October 2010 at which applicants were short listed.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
41. Resolution 5 of 1998 sets out the guidelines for the advertising and filling of posts. In terms of Clause 3.6 of Schedule 1 of the resolution.
3.6 The interview committee may conduct short listing subject to the following criteria:
3.6.1 The criteria must be fair, non discriminatory and in keeping with the Constitution of the country;
3.6.2 The curricular needs of the school;
3.6.3 The obligations of the employer towards serving educators;
3.6.4 The list of short listed candidates for interview purposes must not exceed five.
42. Applying the above to the facts before me I find that the process of short listing was unfair for the following reasons:
43. Even though the criteria appeared to be fair and non discriminatory; they did not in terms of the evidence before me on a balance of probabilities appear to have been applied to the applicants’ for the post of Deputy Principal, documentation in such a manner. There were no clear guidelines provided as to how evidence of the short listing criteria were to be elicited from the documentation submitted by the applicants. None of the five people who gave evidence and attended the short listing meeting could explain how evidence of the criteria was elicited. Further it appeared that no guidelines were provided by Van den Berg as to how this should be done. Van den Berg stated that at the time, being newly appointed he was not sure as to how much guidance he could give the newly formed SGB and he further stated that he is now more vigilant at these meetings and even though he stated that it was not his job to check score sheets, he said that he now checks the score sheets of applicants. Given that Van den Berg’s role is that of Gatekeeper he is expected to provide clear guidelines as to how evidence of criteria should be elicited and to check score sheets of at least the applicants who are short listed if not the score sheets of all applicants. I thus find that Van den Berg was remiss by not doing either of the above. Van den Berg per his testimony stated that had he noticed that the scores, on the score sheets, were wrongly calculated (he conceded at the arbitration hearing that they were) he would have requested that the process be redone. It should be noted that despite the evidence of respondent’s witnesses that the criteria relating to initiative and discipline were removed, the scores in terms of those criteria were taken into account in the case of some of the applications referred to and not in the case of other applications and in some cases applicants score sheets were scored twice for the same criteria. It should be noted that both Van den Berg and Maqunqo (the Acting Principal) testimonies were vague and hard to follow.
44. The respondent provided additional criteria that were not related to those in the advertisement to be used in the case of a tie. The additional requirements related to applicants having acted or having been appointed to the posts of HOD or Deputy Principal. There were no ties in this case however the additional criteria as per Zweni’s evidence appeared to be used to elicit the required criteria.
45. It was not disputed that in terms of the evidence of the respondent’s witnesses the applicants’ scores were wrongly calculated and that the short listed applicants and the applicant in this matter, Mrs Bakala-Mbanza should have scored 51 points, 50 points, 50 points, 50 points and 51 points respectively (Mdliva’s score should have been 50). Thus on this criteria alone it is clear that the applicant should have been short listed for the position and that had she been she had a realistic chance of being appointed to the post. This issue on its own amounts to gross irregularity in the process of short listing. In the case of Pityana V MEC Department of Education Eastern Cape 200930ILJ246(ck) it was stated that:
Where there is evidence of gross irregularities being committed during the process, it may be appropriate to order that the process be repeated, provided that the applicant can show that he at least stands a realistic chance of being appointed if there is no unfairness in the new process
46. Hence on the basis of that irregularity alone the process should be repeated. However there were a number of other issues which appeared in terms of the evidence before me on a balance of probabilities to have been irregular and unfair. I will for the sake of completeness touch on those issues.
47. There is a strictly applied rule in the public service that all qualifications listed by applicants for positions should be evidenced by the attachment of a certified copy of the relevant Degree / Diploma certificate. In this case Mdliva who was the successful incumbent listed two qualifications for which certified copies of diplomas were not attached. She attached a statement of symbol for her teaching diploma without any motivation as to why it should be accepted and she attached no proof of the UCT qualification she referred to which she in fact did not complete.
48. Further there was evidence of Mdliva being aware, by her membership of the SGB, of the criteria against which applicants would be short listed prior to the post being advertised. There appeared to have been a meeting at which the criteria for the advertised post were discussed as well as the fact that applicants’ documentation would be measured against those criteria for short listing purposes. The guidelines if there were any, as to how evidence should be elicited appeared to take place at the short listing meeting of the 15 October 2009 which it was not disputed that Mdliva excused herself from.
49. There was also evidence of further irregularity, which was that some of the score sheets appeared to have been altered after they were signed off and that initials of the signing off member appeared to have been placed next to the alterations.
50. To conclude in terms of the evidence before me I find that the respondent, through the SGB acted unfairly by incorrectly scoring the applications and specifically that of the applicant in terms of the criteria to the extent that had she been scored correctly it was common cause that she would have been short listed and interviewed for the position in question and would have scored more marks than the successful applicant the 2nd respondent.
51. It should be noted that the respondent’s representative in his closing arguments did not deny the main irregularity which was that the scores were wrongly calculated and argued that as he believed there was no evidence of corruption (that is that the decision to appoint Mdliva was predetermined) the process should not be interfered with. Even though the applicant raised the issue of corruption as did her first witness; the evidence was not such as to allow me to make positive finding in this regard.
52. For the reasons stated above I find that the short listing of the applicants was unfair in that there were gross irregularities in the short listing process making the appointment process itself procedurally unfair. The applicant asked that she in terms of relief be appointed to the post, however given that I cannot comment on the competencies of the applicants in an interview process I cannot grant such relief.
53. In an unfair labour practice case relating to promotion where there is a finding of procedural unfairness given that that the interests of the learner and thus the school are paramount an arbitrator should not lightly order the selection and appointment process to be redone as this would be extremely disruptive to the school and thus the learners, as it would require a school to function for a considerable amount of time with less staff than the required complement. This is especially so in a school such as this one which has limited resources. Further the arbitrator cannot at this stage know that the applicant is the best of the applicant for the position. The appropriate relief in such a case would be to order that the applicant be financially compensated.
54. However in this case both the successful candidate and the applicant are employed at the school in question and redoing the appointment process will not cause the staff complement to be reduced and thus should not cause undue disruption to the school and learners and hence the rights of the learners should not be prejudiced. Further it should be noted that the department has but itself to blame for position it finds itself in that it was not disputed that in January 2010 the departmental representative stated that the department was placing a moratorium on the final appointment to the post of Deputy Principal until the finalisation of the applicant’s dispute. However despite this assurance, Mdliva’s appointment was nevertheless confirmed in July 2010.
55. For the reasons stated above I am going to order that the drawing up of the short listing criteria and the scoring in terms of the criteria be repeated and the appointment of Zodwa Mdliva to the post of Deputy Principal be set aside.
56. I find that the respondent acted unfairly in the short listing process of the post of Deputy Principal at Wallacedene Primary School and that the applicant was subjected to an unfair labour practice relating to promotion in terms of the LRA.
57. The respondent is ordered to set aside the appointment of Ms Zodwa Mdliva to the post of Deputy Principal at Wallacedene Primary School and
58. The respondent is ordered to redo the process of drawing up of criteria for short listing for the post of Deputy Principal in terms of Resolution 5 of 1998, Clause 3.6 of Schedule and to score all applicants for the position including the applicant and 2ndrespondent, against those criteria and interview the five highest scoring applicants as per Resolution 5.
59. There is no order as to costs.
Bella Goldman: Arbitrator/Panellist: ELRC