Case Number: PSES 580-09/10 & 587-09/10
Province: North West
Applicant: M L Dithejane and L Lejaka
Respondent: The Department of Education, North West
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 22 February 2011
Arbitrator: Shiraz Mahomed Osman
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT VRYBURG ON 02 & 03 FEBRUARY 2011
CASE NO: PSES 580-09/10 & 587-09/10
IN THE MATTER BETWEEN:
M L DITHEJANE 1st APPLICANT
L LEJAKA 2nd APPLICANT
THE DEPARTMENT OF EDUCATION- NORTH WEST 1st RESPONDENT
K M MOKHOANA 2nd RESPONDENT
DETAILS OF HEARING AND REPRESENTATION
The present dispute between Ms Dithejane M V & Ms K M Mokhoane (hereinafter referred to as the 1st & 2nd applicant) and The Department of Education-North West & K M Mokhoana (hereinafter referred to as the 1st & 2nd respondent) was referred to Arbitration in terms of Section 191 of Act no 66 of 1995, as amended (the Act). At the Arbitration hearing which was held at the Offices of the respondent in Vryburg on 2 February 2011, the 1st applicant was represented by Mr. H Wissing, an attorney and the 2nd Applicant was represented by Mr. D Phango, the 1st respondent was represented by Mr. P M Meje and the 2nd respondent was represented by Mr. F R Makhado.
Parties were given the opportunity to submit closing written arguments by no later than 9 February 2011. Parties submitted same and were considered. The last date of the arbitration being 9 February 2011.
The issue to be decided by myself pertains to whether the 1st respondent had committed Unfair Labour Practices against both the 1st and 2nd applicant.
BACKGROUND TO THE ISSUE
The applicants were employed as Chief Education Specialists at the respondent.
A pre arbitration meeting was concluded prior to the commencement of the arbitration. A signed copy of the minute was handed up. Both applicants entered into a common pre arbitration minute with the respondent. The respondent handed up a bundle of documents and were accepted to be what they purported to be. Herewith, brief reasons for my decision in terms of Section 138 (7). Should any of the evidence or argument presented at the arbitration not be reflected hereunder, then it does not mean that it was not considered.
Though the matter was set down to be heard on 2 & 3 February 2011. At the conclusion of the applicants’ cases on the first date of the hearing, the respondent failed to call a witness and requested that the matter proceed on the following day as Mr. Gradwell the respondent’s witness was not available.
The respondent insisted that Mr. Gradwell would attend the following day.
Both applicants objected and retorted that on the previous occasion a postponement agreement was entered for the fact that the respondent’s same witness was not available and that any further delay would prejudice them. Moreover the applicants were not paid their expenses for that day yet.
The applicants would not believe that Mr. Gradwell would be present on the following day either.
Though the matter was scheduled for 2 & 3 February 2011, I was not inclined to allow the adjournment at the conclusion of the applicant’s case on 2 February 2011. The respondent on the previous occasion had entered into a postponement agreement with the applicants and the reasoning behind the postponement and as indicated on the agreement was precisely because of the absence of Mr. Gradwell, the respondent’s witness.
I was not persuaded with the argument that since the matter was scheduled for two days Mr. Gradwell would attend to testify the following day as the respondent had not known the whereabouts of it’s witness on 2 February 2011.
The reasoning for the two day matter in my opinion is to allow for continuity if the matter failed to conclude on the 1st day due to time constraints. There was indeed sufficient time for the respondent to call it’s 1st witness.
I was persuaded that the applicants would indeed be prejudiced if the matter was delayed any further.
The absence of the respondent’s witness is due to the respondent’s own fault.
Further to the above the respondent in his argument did indeed concede that Mr. Gradwell was not cooperating in view of the fact that he was indeed leaving the service of the employ of the respondent.
The Act requires that disputes be concluded expeditiously.
The request that the matter be adjourned for the next day was denied in lieu of the above.
SURVEY AND ANALYSIS OF EVIDENCE AND ARGUMENTS
It is common cause that the 1St applicant, Ms. Dithejane was indeed the first recommended candidate at the conclusion of the interviews. She had had the highest score rating. She testified that she had had extensive experience as an educator since the inception of her career in 1990. She had also acted as Head of Department; appointed as deputy principal and eventually as principal. In 2008 she was appointed as Circuit Manager. She had achieved the National Teaching Award. She testified that she was not submitted with written reasons as to the reason for her non appointment. She insisted that she was indeed qualified to be appointed in the contested position. She concluded that the process was unfair in light of the fact that she was not furnished with reasons for her non appointment.
At cross-examination Ms Dithejane confirmed that she was indeed the preferred candidate. There was no reason furnished to her for her non appointment. She should have been appointed based on her experience and her high score at the interview. She agreed that anyone of the three short listed candidates could be appointed. She confirmed that she would have been comfortable if she was provided with reasons for her non appointment. She insisted not anyone could be appointed but that there was an order of preference as first, second or third recommended.
At the second respondent’s cross-examination of Ms Dithejane it emerged that she indeed was not familiar as to how experienced both the successful 2nd respondent was nor the 2nd unsuccessful applicant.
I am not satisfied that the 1st applicant who bears the burden to prove the alleged unfairness in matters of alleged unfair labour practices had indeed convinced me that the appointment of the 2nd respondent over her was substantively unfair. Though Ms Dithejane insisted that she indeed had the experience as well as the qualifications to occupy the contested position, she could not dispute her credit worthiness over that of the 2nd respondent as to why she should have been appointed.
I am however convinced that the 1st respondent is under obligation to furnish written reasons for non appointment of any unsuccessful candidate who was short listed. This is a material procedural defect as it provides for transparency as to why the appointed candidate is preferred to another to eliminate perceptions of unfairness; bias or nepotism. In the public service this is a material requirement. Especially in the instance whereby the third recommended candidate was successful over the short listed numbers one and two.
The 2nd applicant, Ms. Lejaka testified that indeed the panel was the representative of the Head of Department and had a duty to choose the top five candidates. She however shot herself in the foot by testifying that indeed the person recommended as the first preferred candidate should in fact be chosen and if not then the second preferred candidate should be chosen. The 2nd applicant in this instance was the second preferred candidate. From her submission I draw the inference that she would not have been aggrieve had the first preferred candidate been selected for the contested position. In infers then that since the first preferred candidate was not selected then she should have been selected. I am not convinced. Indeed I agree as she submitted that the Head of department acts on the recommendations made to him.
Ms Lejaka testified that indeed in the absence of written reasons the selection criteria was procedurally flawed. I agree and I am inclined to submit the same reasons as I did in my analysis of the 1st applicant’s non appointment. There is indeed good reasons to furnish written reasons for the respondent’s choice. I am however not persuaded that the selection was substantively unfair especially in the absence of the written reasons for the Head of Department appointing the third preferred candidate in this instance the 2nd respondent.
I am further not satisfied with submission that the second preferred candidate should be chosen if the first fails. I am of the opinion that the Executing authority and in this case the Head of Department has the final prerogative to chose the most suitable candidate however he must furnish reasons for his choice for obvious reasons.
Further to the above the 2nd applicant failed to prove on a balance of probabilities that she was the better candidate. Both the 1st and 2nd applicant rely on the fact that they were recommended as numbers one and two by the interview committee however it is not denied that the prerogative for the final selection lies with ultimately with the Head of Department. In this instance unfo9rtunately the Head of department failed to provide written reasons as per the selection regulations of the public service.
At cross-examination Ms Lejaka confirmed that the Head of Department indeed had a choice but that he should choose in order of recommendation. The person recommended as number one should first be selected and failure to select her, preference should have been given to the second recommended. This argument is not convincing because then there would be indeed no need shortlist five persons. The interview panel could choose one and send it to the Head of Department for approval. I am sure that the Executing authority would apply his or mind before making the decision and is expected to give written reasons to those unsuccessful candidates. Seemingly the actions of the Head of Department were challenged as per Ms Lejaka to the extent that reasons for her non appointment were not forwarded to her.
Neither the 1st nor the 2nd applicant led substantial evidence in respect of their suitability to have been appointed to the contested position. The burden of proof rests with the applicants. Indeed there were no reasons furnished to either the 1st or 2nd applicant. Therefore I find that the 1st respondent had committed an Unfair Labour Practice to the extent of it’s procedure.
I am of the opinion that the interview panel is representative of the respondent who is mandated to submit names of short listed persons to the Head of Department who in turn has the prerogative to appoint a suitable candidate. However the Head of Department failed to furnish reasons to those who were not appointed. There was not sufficient evidence before to suggest that the non appointment of the two applicants were substantively unfair.
The 1st applicant argued costs. He submitted that generally the successful party would be awarded costs. He further argued that the 1st respondent had not acted bona fide in the proceedings in that the respondent failed to secure by subpoena it’s witness; the respondent had sought postponement on the initial occasion that the matter was set down to be heard and tendered costs however those costs were not paid. The aim of the initial postponement was in order to attempt to settle the dispute, though the 1st applicant had attempted to enter into negotiations the 1st respondent was not co-operative. He argued further that the 1st respondent had further failed to secure it’s chief witness by subpoena on the second occasion. As a result, he argued that the 1st applicant was not in the same financial position as the 1st respondent and that the 1st applicant had incurred considerable costs in protecting her interests. He insisted that the conduct of the 1st respondent bordered on contempt of the proceedings before the Council. He contended that in the circumstances the conduct of the 1st respondent was of such a nature that it justified an order of costs.
In terms of Rule 64 of the Council Dispute Resolution Procedures, costs may be awarded when a panelist is satisfied that a party or person representing a party acts in a manner which seriously compromises the proceedings; if the referral was made or defended vexatiously or without reasonable cause or that the unreasonable conduct of a party had led to wasted costs for another party or the Council.
In view of the above I am not persuaded that the respondent had been vexatious or acted in a manner which compromised the proceedings. I am not convinced that the respondent should be prejudiced for the reluctance of it’s witness to testify. A subpoena might have exacerbated the predicament of the respondent in view of the witnesses’ reluctance. In lieu of the postponement on the initial occasion when the matter was scheduled to be heard, the respondent did indeed agree to pay the costs of all affected parties which both the applicants agreed to.
I am not inclined to order costs and implore the respondent to meet it’s initial obligation in terms of the postponement agreement entered into between the parties. The applicants may seek that the postponement agreement wherein the respondent undertook the pay the costs of the postponement be made an order of Court.
The 1st applicant sought compensation as well as protected promotion. The 2nd applicant sought protected promotion alternatively compensation. In terms of Section 193 a Commissioner may determine any Unfair Labour Practice dispute on terms that the arbitrator deems reasonable and may include ordering reinstatement, re-employment or compensation.
I am not inclined to award the applicants protected promotion as I am of the opinion that the labour practice was unfair only to the extent of procedure. In view of the above I am inclined to award compensation determined by the difference in salary between the present salaries of the applicants and the remuneration that the contested position offered for one month. In the circumstances I am of the opinion that the compensation is just and equitable.
The 1st respondent is found to have committed Unfair Labour Practices against both the 1st and 2nd applicants in that the respondent failed to furnish the applicants with written reasons for their non appointment.
The 1st respondent is ordered to compensate both the 1st and 2nd applicants in the equivalent of one month compensation in the difference in salary of which salary the both applicants earn and that of the salary of the disputed position calculated at R 467 751.00- R 271 461 divided by 12 x 1 in the instance of the 1st applicant.
In the instance of the 2nd applicant the compensation is calculated at R 467 751.00 – R 220 215.00 divided by 12 x 1.
The 1st respondent is ordered to pay the 1st applicant in the amount of R 16 357-50 (sixteen thousand three hundred and fifty seven rand and fifty cents) only as calculated above.
The 1st respondent is further ordered to pay the 2nd applicant in the amount of R 20 628-00 (twenty thousand six hundred and twenty eight rand) only as calculated above.
The above amounts are to be paid directly into both the applicants bank accounts into which their salaries are ordinarily paid by no later than 15 April 2011.
There is no order as to costs.
SIGNED AT KIMBERLEY ON THIS 22nd DAY OF February 2011
SHIRAZ MAHOMED OSMAN