Case Number: PSES 491-10/11
Applicant: SADTU obo Stella Kgarebe Matambuye
Respondent: Department of Education, Gauteng
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 2 July 2011
Arbitrator: Ravi Naidoo
Date of Ruling:
02 July 2011
IN THE MATTER BETWEEN:
SADTU obo Stella Kgarebe Matambuye
Union / Applicant / Employee party
Gauteng Department of Education
Respondent / Employer party
1.DETAILS OF HEARING AND REPRESENTATION:
The arbitration hearing commenced on the 24 May 2011 at the Department of Education offices in Gauteng. The applicant was represented by Moeketsi Mothupi from SADTU, whilst the Gauteng Department of Education was represented by Zakele Nawe.
2.Issues to be decided:
Whether the Gauteng Department of Education committed an Unfair Labour Practice by not completing the appointment process and appointing the applicant into the post of HOD-Commerce at Aurora Girls School.
3.Background to the issues:
The applicant is employed as a level 1 educator at Aurora Girls School. The applicant applied for the post of Head of Department- Commerce at Aurora Girls School. The applicant was acting as Head of Department for Commerce. The applicant currently earns R 159 000-00 per annum. The applicant seeks appointment into the post of Head of Department-Commerce at Aurora Girls School.
4. Survey of the evidence and argument:
4.1 Evidence of the Applicant
4.1.1 The applicant, Stella Kgarebe Matambuye testified as follows:
1) The applicant is currently employed as a level 1 educator and is acting in the capacity as Head of Department at her school.
2) The applicant currently teaches Accounting for Grades 11 and 12 and is also the Acting HOD for Commerce.
3) The applicant was invited to attend an interview for the HOD Commerce post at Aurora in October 2010.
4) The applicant was given an “oath form” to complete.
5) After the interviews were complete, the applicant was advised by management that the post in question had been frozen by the Gauteng Department of Education.
6) The applicant approached the district office and was advised that the post had been frozen.
7) The applicant indicated that she was informed by one of the observers at the interviews as well as the Deputy Principal that she was the recommended candidate to fill the post in question.
8) The district office advised the applicant that the post in question no longer existed due to the post establishment being reduced at the school in question.
9) The applicant is of the view that she would have been appointed into the post and is therefore seeking to be compensated.
4.1.2 Cross Examination
1) The applicant conceded that at no time was she informed by the Gauteng Department of Education that she was the recommended candidate.
2) The applicant indicated that because she went for an interview, she expected to be appointed into the post and therefore would have earned a higher salary. The applicant admitted that all the candidates that were interviewed would have the same expectation.
3) The applicant indicated that she was informed by the teacher representative and the Deputy Principal, Mr Moloi, that she was the recommended candidate.
4) The applicant indicated that the announcement by Mr Moloi was not an official announcement and that he merely informed her as a colleague.
5) The applicant indicated that she was not aware that the Deputy Principal was not allowed to divulge such information.
6) The applicant conceded that Mr Moloi falsely raised her expectations.
7) The applicant indicated that she was informed that the post had been frozen, prior to filling in the “oath forms”
8) The applicant agreed that the number of learners at Aurora had decreased from 1206 to 1120 and that this impacted on the post establishment which decreased from 40 to 37. The number of HOD’s decreased from 8 to 7.
9) The post of HOD Commerce became vacant in 2009.
10) The applicant agreed that one HOD post would have become redundant in 2011.
11) The applicant is of the view that the GDE was aware that the post establishment had decreased and still chose to advertise the post.
12) The applicant was of the view that if the post was advertised then the post should exist. The applicant indicated that according to Circular 32, clause 5.2 the educator occupying the post would have been declared in excess to the post establishment.
1) The applicant agreed that the post in question does not exist in 2011. The applicant was of the view that the announcement by the deputy Principal, Mr Moloi, that the applicant was the recommended candidate was an official statement.
2) The applicant expressed the view that if one is appointed into a post, then one should be declared in access and be dealt with via a process of redeployment.
4.2 Evidence of the Respondent
4.2.1 Witness Randani Nemukula testified as follows:
1) The witness is a Senior Education Specialist whose role function deals with the redeployment of educators and temporary educators.
2) The witness dealt with the post establishment relating to Aurora Girls in 2010.
3) The post establishment of schools are determined on an annual basis.
4) Aurora had a decline of 86 learners. Head Office gave an instruction that all posts that were advertised and were affected by a decrease in the post establishment had to be frozen.
5) Aurora Girls School was contacted prior to the short listing process even commencing and were informed of the revised post establishment.
6) At the meeting where the revised post establishment was handed to principals, the principal of Aurora Girls did not attend.
7) The principal of Aurora Girls informed the Department that they had curriculum challenges. The Principal was advised that they could not proceed with filling HOD Commerce post and that they would require special permission to do so.
8) The Department was surprised that Aurora went ahead with the interviews for the post in question.
4.2.2 Cross Examination
1) The witness indicated that he informed the Principal of Aurora that the issue of the curriculum challenges that the school was facing had to be placed in writing and that the motivation needed to be forwarded to the GDE for ratification.
2) The witness was of the opinion that Aurora Girls School defied a direct instruction not to proceed with the short listing and interview process of the post in question.
3) The appointment of the applicant was never ratified by the Head of Department.
4) It would seem that the Principal of Aurora Girls School ignored the instruction issued by the District Office that the process to fill the post in question should not proceed.
5. Analysis of evidence and argument :
1) The matter concerns an alleged unfair labour practice, where the applicant in this matter claims that the respondent should have appointed her into the post of Head of Department – Commerce at Aurora Girls School.
2) It is common cause that the post of Head of Department – Commerce at Aurora Girls School was initially advertised in the gazette. It is common cause that the applicant did indeed apply for the post in question.
3) The respondent’s witness, Randani Nemukula, testified that prior to the short listing and interviews for said post commencing, the school was contacted and informed that the post had been “frozen”, due to the post establishment being revised. It was testified to and also confirmed by the applicant that the number of learners at Aurora Girls School had decreased by 86 and that this impacted on the post establishment which decreased from 40 to 37 educators. The number of HOD’s decreased from 8 to 7. There is no dispute therefore that the HOD –Commerce post would no longer be part of the post establishment due to the decrease in the leaner population and the revision of the post establishment.
4) The applicant’s argument was that because the post had been advertised and the interviews conducted, she was entitled to the post. The applicant further indicated that because she was advised by her colleague, the Deputy Principal, that she was the preferred candidate of the interview panel, she was entitled to the post. Whilst the applicant initially indicated that the Deputy Principal advised her in an unofficial capacity as a colleague, the perception soon changed when prompted under re-examination, that the Deputy Principal’s announcement to her was an official announcement and therefore the respondent should remain accountable, as an expectation was created to be appointed. This argument is absolutely without merit and is flawed with contradiction by the applicant’s own contradictory evidence. One wonders whether the applicant’s testimony was factual or merely a testimony of convenience. From its presentation it would seem more probable to be the latter as the applicant vacillated between versions.
5) The undisputed merits in this matter as expounded by the respondent’s witness, Randani Nemukula, was that after the post in question was advertised, it was established that the post establishment at Aurora Girls Schools had to be revised and that with the revision, the post of HOD-Commerce would no longer exist as part of the 2011 post establishment. The applicant herself agreed that the post establishment did change. The witness testified(and it was not disputed) that the Principal of Aurora Girls School was contacted and informed that the post had been frozen and that the short listing and interview process should not proceed. It was the witness testimony that the Principal had indicated that the need for the post existed and the Principal was accordingly advised that there was a procedure to be followed in order to motivate for the retention of the post, based on the alleged curriculum needs of the school. Thus the Principal was well aware that the post establishment had been revised and that the post no longer existed, yet the Principal forged ahead with the short listing and interview process. One wonders whether the thinking was that if the short listing and interviews were conducted and the recommendation made, that the respondent would in some way be forced to grant the school the permission to retain the post. If this was the thinking, it surely was not procedural, neither could the respondent be held accountable for the short-sightedness in the thinking.
6) The respondent did not act in some arbitrary way in freezing the post in question. Such a decision was informed by policy and a predetermined agreed formula which was steeped in valid policy. It would have been short sighted for the respondent to proceed with the appointment with somebody into a post which the respondent knew would become redundant in a matter of 3 months. The respondent was within its right to freeze the post and place a halt on the short listing and interview process given the circumstances.
7) Furthermore, I fail to see how the applicant can in anyway claim any entitlement to the post in question. Even if the applicant was the alleged recommended candidate by the interview panel and School Governing Body (although no evidence of such was even presented by the applicant), it was the prerogative of the Head of Department to ratify any appointment as per powers granted by the Employment of Educators Act. Such ratification and confirmation of appointment never happened, for simple reason that the Aurora Girls School was informed via its principal that the post was no longer part of the post establishment and that the necessary interviews should not proceed. One cannot be appointed to a post that does not exist or which has been withdrawn for valid operational reasons. Hypothetically if the post was not frozen, the applicant still had the obligation to prove that she was the best candidate of all candidates interviewed in order to lay claim to the post. No evidence of this sort was even forthcoming. The applicant merely relied on unsubstantiated claims that she was the recommended candidate
8) In the instance I do not believe that the Gauteng Department of Education acted in an unfair manner by withdrawing and freezing the HOD-commerce post that had become redundant at Aurora Girls School. Furthermore, it is the employer’s prerogative, in line with policy and procedure to determine the existence of the post in question. The employer cannot be compelled to make an appointment into a post that was soon to become redundant. The employer has a right to exercise its discretion to take corrective action to avoid a possible scenario arising were redundancy would present itself.
9) The applicant has failed to establish the existence of an unfair labour practice in this instance
1) Accordingly I find that the applicant has failed to establish the existence of an unfair labour practice as alleged.
2) The matter is accordingly dismissed.
Signed and dated on this the 02nd day of July 2011