PSES 371-11/12 KZN
PSES 371-11/12 KZN
Award Date:
PSES 371-11/12 KZN
Case Number: PSES 371-11/12 KZN
Province: KwaZulu-Natal
Applicant: NATU obo Magaya S P
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Durban
Award Date: 24 March 2012
Arbitrator: AS Dorasamy
IN THE ARBITRATION
CASE NO.: PSES 371-11/12 KZN
IN THE MATTER BETWEEN:-
NATU OBO MAGAYA S P APPLICANT
AND
DEPARTMENT OF EDUCATION-KZN 1ST RESPONDENT
SADTU O B O MRS N P NSIBANDE 2ND RESPONDENT
________________________________________________________________
DATE : 9 MARCH 2012
TIME : 09H00
VENUE : OBENJENI DISTRICT OFFICE
MKHUZE
ARBITRATOR : A S DORASAMY
ATTENDANCE/S : APPLICANT
MR MAGAYA S P
1ST RESPONDENT
MR M T ZITHA
2ND RESPONDENT
ABSENT
ARBITRATOR'S AWARD
1. The arbitration proceedings commenced at 09h00 on the 9 March 2012.
ARBITRATOR'S SUMMARY
HEARING AND REPRESENTATION
2. The applicant on previous occasions was represented by Mr B M Sibiya an attorney but on the 9 March 2012 his attorney was not available and Mr M T Zitha represented the first respondent while the second respondent did not attend.
SPECIAL NOTE
1. The applicant’s representative was not available. The appointee failed to attend despite be aware that the applicant was attending a hearing where she was the joinder party. The applicant and the appointee are presently at the same school. The respondent’s witness was also not available. The parties then agreed that the parties would submit Heads of Arguments in respect of their cases and that the matter be finalized on their submissions;
3.1 The applicant would serve its Heads of Arguments on the arbitrator, respondent and appointee on or before the 14 March 2012;
3.2 The respondent and appointee would serve its replying Heads of Arguments on the arbitrator and applicant on or before the 16 March 2012;
3.3 The applicant would serve its answer on the arbitrator, respondent and appointee on or before the 21 March 2012;
3.4 The award will be rendered thereafter.
4. All documents referred to had been made available to the parties at arbitration. The marking of the documents was standardised with the parties at the arbitration.
BACKGROUND
5. The applicant applied for the post of principal, post number 11813 at Velakukhanya Primary School.
6. The first process was completed but a grievance was lodged and later withdrawn. The applicant attended the interviews, scored the highest but the second placed candidate, the second respondent was recommended by the School Governing Body and appointed to the post.
7. The applicant seeks the setting aside of the appointment and that he be recommended to the post.
8. The respondents seek confirmation of the appointment.
9. APPLICANT’S (EMPLOYEE) HEADS OF ARGUMENTS
GRIEVANCE:- APPOINTMENT OF CANDIDATE NO.2 ACCORDING TO SCORES AS PRINCIPAL OF VELAKUKHANYA PRIMARY SCHOOL
RELIEF SOUGHT:- APPOINTMENT OF CANDIDATE NO.1 AS THE PRINCIPAL OF VELAKUKHANYA PRIMARY SCHOOL
SUMMARY OF THE DISPUTE:- On the 17th March 2012; the Department of Education appointed number 2 candidate according to the score as principal of Velakukhanya Primary School, while the Applicant was candidate number 1 according to the score and was the one suitable for the post.
Attached an EC5 form marked ANN.1
The Applicant was aggrieved by the appointment made on the 17th March 2011 in that:-
1. The score points were not:- considered
2. Reasons for the interview committee of SGB to recommend were not in accordance with the departmental policy;
SCHOOL WORK FORCE
At Velakukhanya Primary School there are 11 staff member. Four of which are male, one permanent and 3 temporary. Seven are females, one temporary and six permanent.
For purposes of equity; one would have expected that a suitable candidate from those fewer in number of the work force ought to be appointed.
REASONS FOR THE DEPARTMENT OR SGB TO RECOMMEND NOT BEING IN ACCORDANCE WITH THE DEPARTMENTAL POLICY:-
The SGB recommended the appointment of candidate No.2 for the following reasons:-
1. She is behaving well among the community;
2. She respects the school;
3. She had been working at the same school for a long time; and is the acting principal;
4. She sympathise with the poor of the community.
Attached is a copy of motivation marked ANN.2
The above reasons are not in accordance with the departmental policy and the Department has erred in using those recommendations for purposes of appointment.
The department ought to have recommended candidate number 1 for the post and he is the most suitable candidate.
He was tested through the interview and was found to be most suitable candidate.
FUNCTIONS OF THE GOVERNING BODY
The functions of the governing body is to recommend to the Head of Department the appointment of educators at school; subject to the Employment of Educators Act; 1994 and the Labour Relations Act, 1995.
The Staff contemplated in subsection 4 and 5 of the Educators Employment Act; 1994, must be employed in compliance with the basic values and principles referred to in section 195 of the constitution, and the factors to be taken into account when making appointments include; but are not limited to:-
a) The ability of the candidate;
b) The principle of equity;
c) The need to redress past injustices; and
d) The need for representivity;
Looking to these factors; candidate no.1 fit squarely within these factors.
During the interview he was found to be most suitable candidate and is therefore well able to run the school.
The SGB needed to provide its recommendation with motivation; plus the profile the school work force. The SGB has made their recommendations with motivation that are not in line with departmental policy and failed to provide the profile of the school work force.
Both candidate No.1 and No.2 have the experience, candidate No.1 having 16 years experience as a teacher while candidate No.2 have 14 years experience as a teacher.
RELIEF SOUGHT
The SG has erred in appointing candidate No.2 as the principal of Velakukhanya Primary School while candidate No.1 was available as the most suitable candidate for the post. The appointment of candidate No.2 was therefore unfair to the Applicant.
We request that the SG should reverse its decision and appoint candidate No.1 as the principal of Velakukhanya Primary School, as from the 1st January 2011 as per HRM87 of 2010.
REPLY TO THE RESPONDENT’S
POINT IN LIMINE
1.1 The Respondent had in his reply referred too much to the incident that has occurred before the 17th of March 2011.
Originally the EC5 was flawed and twisted. Applicant having been moved from No.1 to No.2 and No. 2 having been moved No.1. This has occurred before the SGB could make any recommendation and motivation. The Applicant lodged a complaint with the DGC and it was heard and decision was made that the SGB should correct that error and return original numbering of the EC5. The Applicant was re-instated as number 1 of the EC5. From this; it became clear that; there was original a plan or an intention from the SGB members to deprive the Applicant of the appointment as the principal of Velakukhanya L.P.School.
1.2 There was no intention from the side of the Applicant to change the point of reference. The change of the points of reference was cause by the changing circumstances i.e. the changing of the numbering by the SGB from the EC5. This in itself proves that the process was flaw. The reason why the DGC ordered the SGB to rectify the EC5 is because the process was flaw and unions have refused to sign for the flouted EC5.
1.3 The Respondent’s heads of argument is not answering the issues as has been raised in the Applicant’s heads of argument. In his heads of argument Respondent raised completely new issues that were never even referred to on the referral to ELRC.
1.4 The reason why the Applicant has referred this matter to the ELRC is because of the appointment of candidate No.2 instead of candidate No.1.
1.5 There are no material changes of points of reference; because it relies on the EC5 that was flouted and later corrected. The issue of scores when rounding off No. (1) 366,=37; (2) 32,2; (3) 31,8; (4) 30,2 = 30.
2. CONDONATION FOR THE LATE FILING
There is nothing wrong with the ruling on condonation. The ruling was based on relevant statutes and decided cases. The applicant was entitled to apply for condonation for the late filing of this referral. The Applicant has applied for condonation once and the commissioner’s ruling on that was in accordance with the law.
3. WORKING FORCE PROFILE
3.1 The SGB has originally intended to appoint candidate No.2 without further ado. This they have shown they altered the numbering of candidates points on EC5.
3.2 The SGB further made their recommendation and motivation without the consideration of the workforce profile.
3.3 This they did despite the decision of the DGC at item 2 where they said; quoted: - Mr Magaya matter:-
“The same HRM87/2010 did not take the powers of the SGB to recommend Number 2 where gender equity is the factor. Such an SGB needs to provide its recommendation with motivation; plus the profile of the school workforce. Then it remains the competence of the SGB to consider such a submission and take” the appropriate decision. All that is lacking from the ratification by SGB is the profile; in which case it must go with original scores.
Despite that the SG decided to appoint candidate No. 2 as a principal of Velakukhanya L.P .School.
3.4 The first step in conducting an analysis of the workforce profile is to establish which employees are members of designated group. This information should be obtained from employees themselves; either from a declaration as provided for in Regulation 291 or from existing and dependant sources.
3.5 The relevant recruitment area; is the geographic area from which the employer would reasonable be expected to draw or recruit employees. This in itself indicates that the school workforce ought to have been considered for equity purpose.
3.6. There was an attempt by the SGB to sabotage candidate number 1 by interfering with EC5 numbers for purposes of recommending candidate number 2. Their intention was later on fulfilled by the real appointment of candidate No.2
3.7 I refer to EMPLOYMENT OF EDUCATORS ACT 76 OF 1998 of chapter 3 paragraph (b) which reads as follows:-
In considering the applications, the government body or the council; as the case may be must ensure that the principle of equity; re-dress and representivity are complied with and the governing body or council; as the case may be; must adhere to-
I. The democratic values and principles referred to in section 7(1);
II. Any procedure collectively agreed upon or determined by the minister for the appointment; promotion or transfer of educators which the candidate must meet;
III. Any requirement collectively agreed upon or determined by the minister for the appointment; promotion or transfer of educators which the candidate must meet;
IV. A procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators;
V. Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.
3.8 There is no doubt that; by changing the numbering of the candidates in the EC5 the governing body was influencing the process on their favored candidate.
4. RELIEF SOUGHT
The department must reverse the appointment. There is no serious dispute that will be caused as the decision to reverse will be shared with the members of the governing body, the community and the children. The change would be legal and no dispute will arise.
WHEREFORE the commissioner is requested to consider the applicant’s points as against the Respondent.
The prayer is for the commissioner to make a ruling that candidate No. 2 stop as principal of Velakukhanya L.P School and that the department should then appoint candidate number 1 as the principal of Velakukhanya L.P School on the grounds and reasons as stated herein and as well as in the referral and heads of argument.
By so doing justice and fairness shall be promoted.
10. FIRST RESPONDENT’S (EMPLOYER) HEADS OF ARGUMENTS
1. THE REVIEW OF THE TERMS OF REFERENCE
On the 17th of March 2011, the Department appointed candidate number 2 as a principal, while the Applicant was available as candidate number 1, in line with the scores, and while the same Applicant was the most suitable candidate. So the dispute arose on 17 March 2011 at Obonjeni district.
1.1 THE BREAK-DOWN
• The offence was the appointment of candidate 2 instead of candidate 1.
The other offence was the appointment of less suitable or unsuitable candidate 2 instead of the most suitable candidate 1.
• The appointment of candidate 2 instead of candidate 1, while candidate 1 was available.
• This dispute arose on 17 March 2011.
2. THE BACKGROUND
• This dispute has evolved over some considerable period of time.
• The post in dispute has been the same throughout, i.e. post 1813 of HRM 37 of 2010, post of principal of Velakukhanya primary school.
The selection process has been the same too, i.e. there has never been the redoing of the selection process for said post.
• On 07 December 2010 the DGC received the grievance from the Applicant, and also from another candidate, namely Mr. Myeni.
• The 2 grievances were consolidated for obvious reasons, as the 2 were against the post and the same selection process.
• On 14 December 2010 the consolidated grievances were heard.
• The decision was issued after a trace and recovery of the lost application of Mr. Myeni. It said the process had to be redone on account of Mr. Myeni’s grievance rather than that of the Applicant.
• The reason was that Mr. Myeni’s application went missing in the hands of the Employer after it had been sifted in, but never reached the school.
• Just after the decision was meted out, but before it was implemented, Mr. Myeni withdrew his grievance.
• Obviously then the reason to redo the selection process fell away, and as such, the post was released.
• As to why the DGC did not see the terms of reference of the grievance of the Applicant as reasons to redo the selection was based on the following:
Nothing suggested that the CV of candidate 2 did not deserve to be short-listed for reasons like it was incomplete.
That EC5 was not written according to scores was incorrect.
The IC submitted the EC5 to the SGB for ratification in a sequential order.
Only the SGB did the ratification.
It was the choice of the SGB to recommend candidate 2 ahead of candidate 1.
Candidate 1 was an African female while candidate 2 was an African male.
Therefore nothing seemed to suggest that the process was flaw.
Whether the quality of the product was high or even low would not necessarily prove the flouting of policies or principle.
• On 23 March 2011 the District received the dispute referral form.
• Following the failure of conciliation, on the day I cannot remember, the date when the Employer was not represented, the matter set for arbitration on 13 June 2011.
• The term of reference in this regard was that the Applicant scored the highest but was not recommended for the post.
• This time the dispute was said to have arisen on 30 November 2010, which was before even the grievance, let alone the withdrawal of Mr. Myeni’s grievance and the appointment of the incumbent.
• On the day of arbitration the Applicant was represented by Mr. Gasa of NATU.
• On the day of arbitration, viz 13 June 2011, the Applicant spoke of the failure of the Employer to implement the decision of the DGC, i.e. to redo the selection process, where instead, it appointed candidate 2.
• In the ears of the Employer representative it all sounded a new dispute, and raised that point. This was acknowledged by the Commissioner, who advised the Applicant to consider withdrawing the existing disputing and raise the new dispute or to pursue the existing one.
• The choice made was the withdrawal of the existing dispute and to pursue a new course.
• The new dispute had to take the route of the application for condonation, which was opposed by the Employer.
• The answering affidavit was faxed to National ELRC offices, KZN DOE head offices, and in a registered post, mailed to the Applicant. The copy thereof is still available.
• Considering the reasons given for lateness, and the response thereto, condonation should not have been given at all.
• Looking at the evolution of the terms of reference one can see that at one point the Applicant desired the redoing of the process, regardless of the results of the selection process. Now the Applicant wants the Council to render the SGB recommendation invalid.
3. THE ANALYSIS OF THE TERMS OF REFERENCE.
It is an important basic step that the Employer analyses the terms of reference one by one in order not to lose the focus and the pulse of the matter.
• The analysis says candidate 2 instead of candidate 1, was appointed.
• Candidate 1 was available for appointment to the post.
• Candidate 1 was most suitable for the post.
• The inference is that it had to be candidate 1, not 2, or 3 but 1.
• The reason must have been candidate 2 was less suitable.
• The appointment was effected on 17 March 2011.
3.1 FURTHER ANALYSIS
• A closer look suggests that the dispute arose on 17 March 2011 following the appointment.
• When it comes to the grievance the Applicant purports that the grievance procedure was invoked on 14 December 2010.
• Now note that on 14 December 2010 the DGC heard different issues around the same matter, where the terms of grievance were not those contained in PSES 371-11/12, nor those once contained PSES 357-11/12, and again nor those presented to the commissioner on 13 June 2011.
• In sequence the evolution goes as follows: 1 the grievance, the first difference, PSES 357-11/12 the second difference, the reason for withdrawal of PSES 357-11/12 the third difference, PSES 371-11/12 the fourth difference.
• This trend makes this dispute fluid. It’s different issues around the same matter.
• This constant change of the nature of the dispute has already caused unnecessary delays which in turn caused unsettling impact on the incumbent, who is expected to focus on the critical job at hand.
4. THE RESPONSE TO HEADS OF ARGUMENTS OF THE APPLICANT
• The Applicant speaks of the failure of the Department to appoint him as candidate 1, but appointed candidate 2, when the Applicant was the most suitable and available candidate.
4.1 THE CHANGE OF THE TERM OF REFERENCE
The latter term of reference raised is once again new. The records of the Commissioner, on 13 June 2011, Mr. Oakes, should show that the term of reference was changed from the term of reference tabled now to the failure of the Department to follow the decision of the DGC, i.e. to redo the selection process. It was, in fact, in the light of the change the Respondent is referring to that the condonation application was made. So, as it all stands, this says the Applicant lied on 13 June 2011, when he withdrew the known dispute. In fact it further says that the Applicant is misleading both the ELRC and the Department.
The reality is that condonation must have been given in the light of the change the Respondent is referring to here. If not, then there was no need for condonation. The other issue is that this back and forth move of the Applicant has caused undue delay of the matter.
• The above argument, in fact, raises a serious technicality which is a strong basis for the dismissal of this matter once and for all. The Council cannot be entertaining the Applicant who has no particular specific stance on one matter, thus cause undue pressure on the Department.
This is raised as a serious concern because the term of reference is the focal point of the matter so that a specific issue is addressed sufficiently. Therefore, where this focal point evolves from one nature to another, unnecessarily so, the matter becomes even more fluid.
• If it was legally legitimate to withdraw the initial dispute due to a change of the term of reference, and if it was the same with the need for condonation, then it is similarly legally legitimate not hear and consider a dispute with a term of reference which was withdrawn on 13 June 2011.
• If the Council wants to hear this dispute, the same principle applied on 13 June 2011 must apply here, otherwise the whole thing should amount to double standard.
• Once the Council sees this point, and in the light thereof, the Applicant lodges the old dispute anew, the next issue should then be, why the Applicant should still be granted condonation for the second time. If the Council wishes to consider condonation application then, it must also consider the responding affidavit the Respondent made on 11 October 2011, and forwarded to the same Council. In that affidavit the Council has to look into all arguments the Respondent raised regarding the reasons for lateness, prospect of success, and prejudice. The view of the Respondent is that the very condonation should not have been granted, and therefore it should not be granted again, as the Respondent’s arguments should be even stronger with undue delay ranging from the date of appointment of the incumbent to-date.
• In all fairness the Respondent is saying the Commissioner should dismiss this matter
4.2 THE RESPONSE TO THE ARGUMENTS OF THE APPLICANT
• For the simplest reason that this matter is now dealt with on paper, the Respondent wants to expedite the process by also responding to the arguments of the Applicant at once, than to wait for the ruling on the technicality raised by the Respondent first, and then, depending on the ruling, start responding to the these arguments. This is, in no way suggesting that this technical point is not substantial enough to assist the Commissioner to make the necessary decision. So, the Respondent is in fact, simply, displaying a sound mind in effecting efficiency.
4.2.1 SCHOOL WORKFORCE
• The Applicant must have known that the Department, in its quest to adhere to Gender Equity Act, therefore in its Gender Equity Policy, has defined the Province as its workplace, not the school.
• Therefore the school workforce demographic profile is not a sole determining factor but just one of the factors the Department can/may take a look at to take a decision.
• The very Act does not designate African black males ahead of African black female group. The reason is simply that for all the past years, the Department, like many designated employers, has been appointing African black males ahead of their female counter-part. Therefore there is every reason for the Department to adopt affirmative action policy that affirms its compliance with the Constitution Act, Gender Equity Act, and Employment Equity Act and Regulations by appointing more African black females into management posts than their African black counter-part.
• In the same breath the Department has the legal obligation to remain a gender equity sensitive employer.
• This is due to the sensitive nature of the gender issues against the social stereotypes suffered in various communities. Therefore the Department cannot delegate such a function to the communities, hence the same Department has prudently elected to take it upon its shoulders to effect employment equity itself.
• This rationale is very much in line with South African Schools Act, and The Employment of Educators Act which give the SGB the powers, not appoint, but to recommend, and powers to the HOD of the Department to appoint. There is nothing new with this and it fully acceptable.
• This must be understood as a response to an issue about why the Department appointed an African black female ahead of an African black male, not the effectiveness of the Department’s in quest for employment equity.
• All said and done, there is absolutely nothing the Department did wrongly in appointing female in the position of the principal.
4.2.2 THE REASONS OF THE SGB TO RECOMMEND THE FEMALE
• The Applicant should have understood that the SGB has right to motivate its recommendation. The SGB’s letter contains both the recommendation and such motivation.
The Applicant should again have known that Department needs the most appropriate candidate in a post of management of a school. So, where the candidate exhibits the appropriate qualities, and the SGB has knowledge of this, there is no reason not recommending such a candidate to the HOD for appointment. The Applicant should be advised that the SGB, in doing this, did delegate its authority to ratify the selection process, it did not change the scores, and it observed that the score difference between the Applicant and the appointed candidate is with 5 points as per employment equity policy. So, here again there is nothing wrong. For reference, please take note of the EC5 and the letter of the SGB.
That this letter is addressed to the HR Co-ordinator at Mkuze, instead of the HOD is not an issue, because it was forward to the HOD, and SGB, with its low level of capacity, would not be reprimanded for such.
4.2.3 THE FUNCTIONS OF THE SGB
• The Applicant correctly refers to Constitution, The Employment of Educators Act, and The Labour Relations Act, however, the same Applicant falls short in understanding and accepting that the same principles he cites legitimize the very appointment he tries hard to dispute.
• The reason for such shortfall seems to lie in the failure to understand that the workplace is not the school, but the entire Province of KZN.
• The further talk of school demographic profile and the SGB recommendation and motivation have already been sufficiently addressed in the previous responses to issues about school workforce and the reasons to recommend the female. Further response will be redundant.
5. THE RELIEF
• It must be noted that the Department has no grounds to reverse the appointment. If that is done, it can cause a very serious dispute that will be difficult to debate against. Such will only hurt the school therefore the learners. Secondly the Council has no power to appoint. So, the Applicant still will not directly benefit from this process. Thirdly, the Council simply cannot override the DGC decision. The recent decision on a case between KZN PDE and NATU obo Mbopha High School is good case in point. So, leave the appointment untarnished.
6. REFERENCES
• Simply for purposes of further understanding the responses of the Respondent, please refer to the following annexures.
6.1 Annexure A The grievance form
6.2 Annexure B The DGC minutes.
6.3 Annexure C Myeni’s grievance withdrawal letter
6.4 Annexure D The dispute referral form
6.5 Annexure E The dispute withdrawal letter
6.6 Annexure F The condonation application
6.7 Annexure G The responding affidavit with its attachments
6.8 Annexure H The SGB letter
6.9 Annexure I The EC5
6.10 Annexure J The appointment letter
11. SECOND RESPONDENT’S (APPOINTEE) HEADS OF ARGUMENTS
Firstly I would like to draw the attention of the commissioner to schedule 2 AMENDMENT OF EDUCATOR’S EMPLOYMENT ACT, 1994 BY SECTION 63 In term of the mentioned statutes item 4(1) the qualification for appointment and promotion as an educator shall be determined by the Minister.
Item 4(2) Subject to the provisions of the constitution, Labour Relations Act 1995(Act 66 of 1995) and agreement reached in terms thereof posts shall be filled by appointment, transferee or promotion and the power to fill a post created under section 3 shall, subject to provisions of this Act, vest in the employer, who shall exercise such power with regard to posts referred to in section 3 (1) and (3) subject to the prior approval of the Member of the Executive Council or the Minister, as the case may be.
(3) The authority to fill a posts referred to in section 3 (1) and (3) at a public
school in terms of subsection(2) is exercised on the recommendation of a public school, as represented by its governing body, and the employer may only deviate from such recommendation if
a) The candidate does not have required qualification
b) The candidate has been found guilty of misconduct or
c) Sufficient proof exists that the recommendation made was based on improper influence.
None of the above was applicable in Vezukukhanya Primary School.
Commissioner the SGB are authorised to submit their recommendation and the HOD will appoint candidate based on his prerogative or SGBs recommendation if the recommendation was proper, the appointment by HOD proof that the recommendation by SGB was legitimate and proper,
It must further be noted that the recommended candidate has been tried and tested as she has been acting in the post.
Commissioner reversals of the appointment will spell doom to Nsibande and the family.
ISSUE TO BE DECIDED
12. I am to determine the respondent/employer perpetrated an act of unfair labour practice against the applicant in not appointing him to the post of principal.
SURVEY OF EVIDENCE AND ARGUMENT
13. The applicant in this matter seeks the setting aside of the appointment of the second respondent and that he be appointed as principal.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. I have taken cognizance of the decision in Sweeney/ Transcash [2000] 6 BALR 712 (CCMA) where the commissioner held that arbitration hearings constitutes a rehearing de novo on the merits.
15. The promotion process of the respondent the Department of Education is regulated by HRM documents and collective agreements. The stakeholders in the education sector continuously appraise the procedure manuals and where necessary amendments are effected.
16. The following are of importance to direct parties in this sector that careful consideration must be given to the following principles that guide/ direct the promotion/ appointment process.
17. Should a better understanding evolve then this would lead to a more expeditious filling of advertised posts and effective teaching and learning situation. It is a clear from the number of disputes attended to by the ELRC that the education sector is saddled with promotion disputes that have the net result that the vacant posts remain in limbo until the matters are settled either by agreement or by awards.
18. The following are recorded in the promotion manuals eg in HRM 81 of 2010 the following is recorded:
GENERAL PRINCIPLES
This procedure manual is developed in terms of the PAM of 1998, as amended, and replaces all other previous practices and procedure manuals.
5.4 Registration with the South African Council for Educators (SACE)
Applicants must provide proof of registration with SACE or must provide proof that they have applied for registration with SACE.
OBSERVERS
8.1…….
8.2. Valid credentials must be produced by observers.
8.3. The Observers will have access to the schedule of applications “sifted
in and sifted out” resulting from the sifting process.
8.4 The Chairperson of the Interview Committee shall give give at least (5)
working days written notice to the relevant Office of each Teacher Organisations
8.5. Non-attendance of observers will not prohibit the selection process
from proceeding as long as chairpersons have informed Teacher Organisations of scheduled meetings. The secretary must keep records of such invitations and transmissions to the Unions..
Role of Observers
8.6.1 The Union representative shall be observers to the process of
shortlisting, interviews and drawing up of a preference list.
8.6.2 Observers shall not be directly involved in the processes of
shortlisting and interviewing but will note that approved procedures and practices are adhered to in a fair, consistent and uniform manner.
8.6.3. An Observer has the right to intervene in terms of the procedures if
he /she deems that there is an infringement on agreed upon
procedures
8.6.4 In such an instance an observer must indicate to the Chairperson
that he / she wishes to intervene. It is expected that the observer shall observe the following:
* Must not discuss any question(s) or comment(s) in the
presence of the interviewee.
*Discussion concerning the intervention must take place after the interviewee has left the room.
8.6.5 Observers must sign the declaration of confidentiality (EC6) and
uphold the code of secrecy (my emphasis)
8.6.6 An observer must first attempt to resolve any concerns with the
Interview Committee. Should consensus not be reached, he / she
must inform the Interview Committee in writing that he / she is
lodging a grievance.
8.6.7. An observer must continue to participate in the process while the
grievance is being addressed by the District Grievance Committee
10. CONFIDENTIALITY
10.2. All members of the interview committee, observers and School
Governing Body members must sign the declaration of
confidentiality [EC6].(my emphasis)
21. GRIEVANCES / DISPUTES
21.2 An aggrieved applicant may lodge a grievance on the attached
Application Form with the Employee Relations component in the
District.
21.3 A Union Observer may also lodge a grievance on behalf of its
member/s by completing the attached form with the Employee
Relations component in the District.
21.4. A grievance should ideally be lodged within 7 days from the date of
any process being completed.
21.5 A declaration of a grievance will not prevent the Interview Committee from proceeding with the Selection Process unless it is advised to halt the proceedings by the District Grievance Committee.
21.6 The District……………………………such grievances.
21.7 Should the matter not be resolved to the satisfaction of the aggrieved party, a formal dispute may be lodged with the ELRC using the prescribed procedures.
21.8 The Department shall not make appointments to posts in dispute.
19. The first concern is that the promotion/ appointment procedure manual clearly defines the process and the obligations of the participants in the process. All participants must sign a confidentiality undertaking put simply it means that all information in their hands are privileged and confidential. As such any disclosure would render such information inadmissible. There must be strict adherence to the confidentiality clause. This seems to be the root cause of grievances and disputes at stages that the drafter had not envisaged.
20. Clearly the drafters of the procedures did not envisage the escalation of disputes but attempted to provide a quick and speedy finalisation of appointment to advertised posts.
21. Turning to the dispute at hand the role and powers of the District Grievance Committee (DGC) must be clarified and this may be done by referring to the Collective Agreement No. 1 of 2008 where the following are recorded:
THE GRIEVANCE PROCEDURE FOR HANDLING SCHOOL- BASED PROMOTION GRIEVANCES
2. SCOPE
This agreement shall bind the KwaZulu Natal Department of Education and all Educators employed by the KwaZulu Natal Department of Education and all parties to the KwaZulu Natal Chamber of the Education Labour Relations Council.
Section 8 of the Collective Agreement states as follows
The Grievance Committee, after having heard the parties must
make a finding. Should the findings be in favour of the applicant, the Grievance Committee shall make appropriate recommendations to the Human resources Manager at Head Office who shall implement the recommendation.
Section 9
The findings of the Committee shall be recorded on the form GR 4 and signed by the aggrieved, his / her union if applicable and the Chairperson of the Grievance Committee.
Section 10
If the Grievance Committee finds against the applicant, it shall recommend to the Human Resources Manager, Head Office whether to release the post or not.
Section 11
The Chairperson of the Grievance Committee shall communicate the decision of the Committee to the grievant within 3 working days of the conclusion of the grievance hearing.
Section12
The grievant must within 3 working days of receipt of the
findings indicate on the Form GR 4 whether the findings are
accepted or whether the grievant intends lodging a dispute with
the ELRC.
22. It is clear that the DGC was created to attend to dispute that could be resolved on a two prong basis.
23. Firstly ruling in favour of the grievant in which case the DGC’s decision would have to be implemented. The second case is when the DGC finds against the grievant who must them make an election as to whether to accept the finding or indicate whether he / she intends to lodge a dispute with the ELRC.
24. The parties are bound by the collective agreement and this includes individual educators employed by the KwaZulu Natal Education department. As such to set aside the decision of the DGC would sent the wrong message and would have the result of dragging on the appointment of persons to vacant / advertised posts.
25. In any event the SGB only makes recommendation to the Head of Department who has wide power in terms of the amendments to section 6 of the Employment of Educators Act, 1998 of which the following should be noted:
Section 7 (1) Section 6 of the Employment of Educators Act, 1998 is hereby amended by the substitution for subsection(3) of the following subsection:
(3) (a) …………..
(c) The governing body or the council, as the case may be, must submit, in order of preference to the Head of Department (HOD), a list of-
(i) at least three names of recommended candidates; or
(f) Despite the order of preference in paragraph (c) and subject to
paragraph (d) the Head of Department may appoint any suitable
candidate on the list.
(g) (iii) … appoint a suitable candidate temporarily or re-advertise the
post.
(h) The governing body or the council, as the case may be, may
appeal to the Member of the Executive Council against the decision of
the HOD regarding the temporary appointment contemplated in
paragraph (g).
(k) If no appeal is lodged within 14 days, the HOD may convert the
temporary appointment into a permanent appointment in section 6 B.
26. It is clear from the above that the prerogative in appointing personnel in promotion post is that of the employer. The reason is simple that the responsible functionary eg HOD must direct the department’s plans and targets within reasonable grounds failing which certain consequences would follow.
27. In this case I do not believe that the DGC had come to an incorrect conclusion. When it took submission from the parties it considered it prudent to determine the matter based on the facts before it that no candidate would be prejudiced if the process was to continue from the stage that it determined. The dispute by Mr Myeni was withdrawn.
28. Further it would be ill conceived to get the same interview panel to do re-do the process because they would in any event be ceased with the matter (functus officio). Further the School Governing Body had made its recommendation to the Head of department and a decision was taken to appoint the candidate recommended by the governing body. I believe that its decision was based on the best interest of the school and the community that requires the vacancy to be filled as soon as possible.
29. As a consequence of the above I determine that the respondent /employer did not perpetrated an act of unfair labour practice against the applicant in not appointing him to the post of principal. The appointment of the second respondent Ms N P Nsibande as principal of Velakukhanya Primary School is hereby confirmed.
AWARD
30. The application is dismissed
31. The appointment of Ms N P Nsibande as principal of Velakukhanya Primary School is confirmed.
32. There is no order as to costs.
DATED AT DURBAN ON THIS 24 DAY OF MARCH 2012.
AS DORASAMY (ARBITRATOR)
Province: KwaZulu-Natal
Applicant: NATU obo Magaya S P
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Durban
Award Date: 24 March 2012
Arbitrator: AS Dorasamy
IN THE ARBITRATION
CASE NO.: PSES 371-11/12 KZN
IN THE MATTER BETWEEN:-
NATU OBO MAGAYA S P APPLICANT
AND
DEPARTMENT OF EDUCATION-KZN 1ST RESPONDENT
SADTU O B O MRS N P NSIBANDE 2ND RESPONDENT
________________________________________________________________
DATE : 9 MARCH 2012
TIME : 09H00
VENUE : OBENJENI DISTRICT OFFICE
MKHUZE
ARBITRATOR : A S DORASAMY
ATTENDANCE/S : APPLICANT
MR MAGAYA S P
1ST RESPONDENT
MR M T ZITHA
2ND RESPONDENT
ABSENT
ARBITRATOR'S AWARD
1. The arbitration proceedings commenced at 09h00 on the 9 March 2012.
ARBITRATOR'S SUMMARY
HEARING AND REPRESENTATION
2. The applicant on previous occasions was represented by Mr B M Sibiya an attorney but on the 9 March 2012 his attorney was not available and Mr M T Zitha represented the first respondent while the second respondent did not attend.
SPECIAL NOTE
1. The applicant’s representative was not available. The appointee failed to attend despite be aware that the applicant was attending a hearing where she was the joinder party. The applicant and the appointee are presently at the same school. The respondent’s witness was also not available. The parties then agreed that the parties would submit Heads of Arguments in respect of their cases and that the matter be finalized on their submissions;
3.1 The applicant would serve its Heads of Arguments on the arbitrator, respondent and appointee on or before the 14 March 2012;
3.2 The respondent and appointee would serve its replying Heads of Arguments on the arbitrator and applicant on or before the 16 March 2012;
3.3 The applicant would serve its answer on the arbitrator, respondent and appointee on or before the 21 March 2012;
3.4 The award will be rendered thereafter.
4. All documents referred to had been made available to the parties at arbitration. The marking of the documents was standardised with the parties at the arbitration.
BACKGROUND
5. The applicant applied for the post of principal, post number 11813 at Velakukhanya Primary School.
6. The first process was completed but a grievance was lodged and later withdrawn. The applicant attended the interviews, scored the highest but the second placed candidate, the second respondent was recommended by the School Governing Body and appointed to the post.
7. The applicant seeks the setting aside of the appointment and that he be recommended to the post.
8. The respondents seek confirmation of the appointment.
9. APPLICANT’S (EMPLOYEE) HEADS OF ARGUMENTS
GRIEVANCE:- APPOINTMENT OF CANDIDATE NO.2 ACCORDING TO SCORES AS PRINCIPAL OF VELAKUKHANYA PRIMARY SCHOOL
RELIEF SOUGHT:- APPOINTMENT OF CANDIDATE NO.1 AS THE PRINCIPAL OF VELAKUKHANYA PRIMARY SCHOOL
SUMMARY OF THE DISPUTE:- On the 17th March 2012; the Department of Education appointed number 2 candidate according to the score as principal of Velakukhanya Primary School, while the Applicant was candidate number 1 according to the score and was the one suitable for the post.
Attached an EC5 form marked ANN.1
The Applicant was aggrieved by the appointment made on the 17th March 2011 in that:-
1. The score points were not:- considered
2. Reasons for the interview committee of SGB to recommend were not in accordance with the departmental policy;
SCHOOL WORK FORCE
At Velakukhanya Primary School there are 11 staff member. Four of which are male, one permanent and 3 temporary. Seven are females, one temporary and six permanent.
For purposes of equity; one would have expected that a suitable candidate from those fewer in number of the work force ought to be appointed.
REASONS FOR THE DEPARTMENT OR SGB TO RECOMMEND NOT BEING IN ACCORDANCE WITH THE DEPARTMENTAL POLICY:-
The SGB recommended the appointment of candidate No.2 for the following reasons:-
1. She is behaving well among the community;
2. She respects the school;
3. She had been working at the same school for a long time; and is the acting principal;
4. She sympathise with the poor of the community.
Attached is a copy of motivation marked ANN.2
The above reasons are not in accordance with the departmental policy and the Department has erred in using those recommendations for purposes of appointment.
The department ought to have recommended candidate number 1 for the post and he is the most suitable candidate.
He was tested through the interview and was found to be most suitable candidate.
FUNCTIONS OF THE GOVERNING BODY
The functions of the governing body is to recommend to the Head of Department the appointment of educators at school; subject to the Employment of Educators Act; 1994 and the Labour Relations Act, 1995.
The Staff contemplated in subsection 4 and 5 of the Educators Employment Act; 1994, must be employed in compliance with the basic values and principles referred to in section 195 of the constitution, and the factors to be taken into account when making appointments include; but are not limited to:-
a) The ability of the candidate;
b) The principle of equity;
c) The need to redress past injustices; and
d) The need for representivity;
Looking to these factors; candidate no.1 fit squarely within these factors.
During the interview he was found to be most suitable candidate and is therefore well able to run the school.
The SGB needed to provide its recommendation with motivation; plus the profile the school work force. The SGB has made their recommendations with motivation that are not in line with departmental policy and failed to provide the profile of the school work force.
Both candidate No.1 and No.2 have the experience, candidate No.1 having 16 years experience as a teacher while candidate No.2 have 14 years experience as a teacher.
RELIEF SOUGHT
The SG has erred in appointing candidate No.2 as the principal of Velakukhanya Primary School while candidate No.1 was available as the most suitable candidate for the post. The appointment of candidate No.2 was therefore unfair to the Applicant.
We request that the SG should reverse its decision and appoint candidate No.1 as the principal of Velakukhanya Primary School, as from the 1st January 2011 as per HRM87 of 2010.
REPLY TO THE RESPONDENT’S
POINT IN LIMINE
1.1 The Respondent had in his reply referred too much to the incident that has occurred before the 17th of March 2011.
Originally the EC5 was flawed and twisted. Applicant having been moved from No.1 to No.2 and No. 2 having been moved No.1. This has occurred before the SGB could make any recommendation and motivation. The Applicant lodged a complaint with the DGC and it was heard and decision was made that the SGB should correct that error and return original numbering of the EC5. The Applicant was re-instated as number 1 of the EC5. From this; it became clear that; there was original a plan or an intention from the SGB members to deprive the Applicant of the appointment as the principal of Velakukhanya L.P.School.
1.2 There was no intention from the side of the Applicant to change the point of reference. The change of the points of reference was cause by the changing circumstances i.e. the changing of the numbering by the SGB from the EC5. This in itself proves that the process was flaw. The reason why the DGC ordered the SGB to rectify the EC5 is because the process was flaw and unions have refused to sign for the flouted EC5.
1.3 The Respondent’s heads of argument is not answering the issues as has been raised in the Applicant’s heads of argument. In his heads of argument Respondent raised completely new issues that were never even referred to on the referral to ELRC.
1.4 The reason why the Applicant has referred this matter to the ELRC is because of the appointment of candidate No.2 instead of candidate No.1.
1.5 There are no material changes of points of reference; because it relies on the EC5 that was flouted and later corrected. The issue of scores when rounding off No. (1) 366,=37; (2) 32,2; (3) 31,8; (4) 30,2 = 30.
2. CONDONATION FOR THE LATE FILING
There is nothing wrong with the ruling on condonation. The ruling was based on relevant statutes and decided cases. The applicant was entitled to apply for condonation for the late filing of this referral. The Applicant has applied for condonation once and the commissioner’s ruling on that was in accordance with the law.
3. WORKING FORCE PROFILE
3.1 The SGB has originally intended to appoint candidate No.2 without further ado. This they have shown they altered the numbering of candidates points on EC5.
3.2 The SGB further made their recommendation and motivation without the consideration of the workforce profile.
3.3 This they did despite the decision of the DGC at item 2 where they said; quoted: - Mr Magaya matter:-
“The same HRM87/2010 did not take the powers of the SGB to recommend Number 2 where gender equity is the factor. Such an SGB needs to provide its recommendation with motivation; plus the profile of the school workforce. Then it remains the competence of the SGB to consider such a submission and take” the appropriate decision. All that is lacking from the ratification by SGB is the profile; in which case it must go with original scores.
Despite that the SG decided to appoint candidate No. 2 as a principal of Velakukhanya L.P .School.
3.4 The first step in conducting an analysis of the workforce profile is to establish which employees are members of designated group. This information should be obtained from employees themselves; either from a declaration as provided for in Regulation 291 or from existing and dependant sources.
3.5 The relevant recruitment area; is the geographic area from which the employer would reasonable be expected to draw or recruit employees. This in itself indicates that the school workforce ought to have been considered for equity purpose.
3.6. There was an attempt by the SGB to sabotage candidate number 1 by interfering with EC5 numbers for purposes of recommending candidate number 2. Their intention was later on fulfilled by the real appointment of candidate No.2
3.7 I refer to EMPLOYMENT OF EDUCATORS ACT 76 OF 1998 of chapter 3 paragraph (b) which reads as follows:-
In considering the applications, the government body or the council; as the case may be must ensure that the principle of equity; re-dress and representivity are complied with and the governing body or council; as the case may be; must adhere to-
I. The democratic values and principles referred to in section 7(1);
II. Any procedure collectively agreed upon or determined by the minister for the appointment; promotion or transfer of educators which the candidate must meet;
III. Any requirement collectively agreed upon or determined by the minister for the appointment; promotion or transfer of educators which the candidate must meet;
IV. A procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators;
V. Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.
3.8 There is no doubt that; by changing the numbering of the candidates in the EC5 the governing body was influencing the process on their favored candidate.
4. RELIEF SOUGHT
The department must reverse the appointment. There is no serious dispute that will be caused as the decision to reverse will be shared with the members of the governing body, the community and the children. The change would be legal and no dispute will arise.
WHEREFORE the commissioner is requested to consider the applicant’s points as against the Respondent.
The prayer is for the commissioner to make a ruling that candidate No. 2 stop as principal of Velakukhanya L.P School and that the department should then appoint candidate number 1 as the principal of Velakukhanya L.P School on the grounds and reasons as stated herein and as well as in the referral and heads of argument.
By so doing justice and fairness shall be promoted.
10. FIRST RESPONDENT’S (EMPLOYER) HEADS OF ARGUMENTS
1. THE REVIEW OF THE TERMS OF REFERENCE
On the 17th of March 2011, the Department appointed candidate number 2 as a principal, while the Applicant was available as candidate number 1, in line with the scores, and while the same Applicant was the most suitable candidate. So the dispute arose on 17 March 2011 at Obonjeni district.
1.1 THE BREAK-DOWN
• The offence was the appointment of candidate 2 instead of candidate 1.
The other offence was the appointment of less suitable or unsuitable candidate 2 instead of the most suitable candidate 1.
• The appointment of candidate 2 instead of candidate 1, while candidate 1 was available.
• This dispute arose on 17 March 2011.
2. THE BACKGROUND
• This dispute has evolved over some considerable period of time.
• The post in dispute has been the same throughout, i.e. post 1813 of HRM 37 of 2010, post of principal of Velakukhanya primary school.
The selection process has been the same too, i.e. there has never been the redoing of the selection process for said post.
• On 07 December 2010 the DGC received the grievance from the Applicant, and also from another candidate, namely Mr. Myeni.
• The 2 grievances were consolidated for obvious reasons, as the 2 were against the post and the same selection process.
• On 14 December 2010 the consolidated grievances were heard.
• The decision was issued after a trace and recovery of the lost application of Mr. Myeni. It said the process had to be redone on account of Mr. Myeni’s grievance rather than that of the Applicant.
• The reason was that Mr. Myeni’s application went missing in the hands of the Employer after it had been sifted in, but never reached the school.
• Just after the decision was meted out, but before it was implemented, Mr. Myeni withdrew his grievance.
• Obviously then the reason to redo the selection process fell away, and as such, the post was released.
• As to why the DGC did not see the terms of reference of the grievance of the Applicant as reasons to redo the selection was based on the following:
Nothing suggested that the CV of candidate 2 did not deserve to be short-listed for reasons like it was incomplete.
That EC5 was not written according to scores was incorrect.
The IC submitted the EC5 to the SGB for ratification in a sequential order.
Only the SGB did the ratification.
It was the choice of the SGB to recommend candidate 2 ahead of candidate 1.
Candidate 1 was an African female while candidate 2 was an African male.
Therefore nothing seemed to suggest that the process was flaw.
Whether the quality of the product was high or even low would not necessarily prove the flouting of policies or principle.
• On 23 March 2011 the District received the dispute referral form.
• Following the failure of conciliation, on the day I cannot remember, the date when the Employer was not represented, the matter set for arbitration on 13 June 2011.
• The term of reference in this regard was that the Applicant scored the highest but was not recommended for the post.
• This time the dispute was said to have arisen on 30 November 2010, which was before even the grievance, let alone the withdrawal of Mr. Myeni’s grievance and the appointment of the incumbent.
• On the day of arbitration the Applicant was represented by Mr. Gasa of NATU.
• On the day of arbitration, viz 13 June 2011, the Applicant spoke of the failure of the Employer to implement the decision of the DGC, i.e. to redo the selection process, where instead, it appointed candidate 2.
• In the ears of the Employer representative it all sounded a new dispute, and raised that point. This was acknowledged by the Commissioner, who advised the Applicant to consider withdrawing the existing disputing and raise the new dispute or to pursue the existing one.
• The choice made was the withdrawal of the existing dispute and to pursue a new course.
• The new dispute had to take the route of the application for condonation, which was opposed by the Employer.
• The answering affidavit was faxed to National ELRC offices, KZN DOE head offices, and in a registered post, mailed to the Applicant. The copy thereof is still available.
• Considering the reasons given for lateness, and the response thereto, condonation should not have been given at all.
• Looking at the evolution of the terms of reference one can see that at one point the Applicant desired the redoing of the process, regardless of the results of the selection process. Now the Applicant wants the Council to render the SGB recommendation invalid.
3. THE ANALYSIS OF THE TERMS OF REFERENCE.
It is an important basic step that the Employer analyses the terms of reference one by one in order not to lose the focus and the pulse of the matter.
• The analysis says candidate 2 instead of candidate 1, was appointed.
• Candidate 1 was available for appointment to the post.
• Candidate 1 was most suitable for the post.
• The inference is that it had to be candidate 1, not 2, or 3 but 1.
• The reason must have been candidate 2 was less suitable.
• The appointment was effected on 17 March 2011.
3.1 FURTHER ANALYSIS
• A closer look suggests that the dispute arose on 17 March 2011 following the appointment.
• When it comes to the grievance the Applicant purports that the grievance procedure was invoked on 14 December 2010.
• Now note that on 14 December 2010 the DGC heard different issues around the same matter, where the terms of grievance were not those contained in PSES 371-11/12, nor those once contained PSES 357-11/12, and again nor those presented to the commissioner on 13 June 2011.
• In sequence the evolution goes as follows: 1 the grievance, the first difference, PSES 357-11/12 the second difference, the reason for withdrawal of PSES 357-11/12 the third difference, PSES 371-11/12 the fourth difference.
• This trend makes this dispute fluid. It’s different issues around the same matter.
• This constant change of the nature of the dispute has already caused unnecessary delays which in turn caused unsettling impact on the incumbent, who is expected to focus on the critical job at hand.
4. THE RESPONSE TO HEADS OF ARGUMENTS OF THE APPLICANT
• The Applicant speaks of the failure of the Department to appoint him as candidate 1, but appointed candidate 2, when the Applicant was the most suitable and available candidate.
4.1 THE CHANGE OF THE TERM OF REFERENCE
The latter term of reference raised is once again new. The records of the Commissioner, on 13 June 2011, Mr. Oakes, should show that the term of reference was changed from the term of reference tabled now to the failure of the Department to follow the decision of the DGC, i.e. to redo the selection process. It was, in fact, in the light of the change the Respondent is referring to that the condonation application was made. So, as it all stands, this says the Applicant lied on 13 June 2011, when he withdrew the known dispute. In fact it further says that the Applicant is misleading both the ELRC and the Department.
The reality is that condonation must have been given in the light of the change the Respondent is referring to here. If not, then there was no need for condonation. The other issue is that this back and forth move of the Applicant has caused undue delay of the matter.
• The above argument, in fact, raises a serious technicality which is a strong basis for the dismissal of this matter once and for all. The Council cannot be entertaining the Applicant who has no particular specific stance on one matter, thus cause undue pressure on the Department.
This is raised as a serious concern because the term of reference is the focal point of the matter so that a specific issue is addressed sufficiently. Therefore, where this focal point evolves from one nature to another, unnecessarily so, the matter becomes even more fluid.
• If it was legally legitimate to withdraw the initial dispute due to a change of the term of reference, and if it was the same with the need for condonation, then it is similarly legally legitimate not hear and consider a dispute with a term of reference which was withdrawn on 13 June 2011.
• If the Council wants to hear this dispute, the same principle applied on 13 June 2011 must apply here, otherwise the whole thing should amount to double standard.
• Once the Council sees this point, and in the light thereof, the Applicant lodges the old dispute anew, the next issue should then be, why the Applicant should still be granted condonation for the second time. If the Council wishes to consider condonation application then, it must also consider the responding affidavit the Respondent made on 11 October 2011, and forwarded to the same Council. In that affidavit the Council has to look into all arguments the Respondent raised regarding the reasons for lateness, prospect of success, and prejudice. The view of the Respondent is that the very condonation should not have been granted, and therefore it should not be granted again, as the Respondent’s arguments should be even stronger with undue delay ranging from the date of appointment of the incumbent to-date.
• In all fairness the Respondent is saying the Commissioner should dismiss this matter
4.2 THE RESPONSE TO THE ARGUMENTS OF THE APPLICANT
• For the simplest reason that this matter is now dealt with on paper, the Respondent wants to expedite the process by also responding to the arguments of the Applicant at once, than to wait for the ruling on the technicality raised by the Respondent first, and then, depending on the ruling, start responding to the these arguments. This is, in no way suggesting that this technical point is not substantial enough to assist the Commissioner to make the necessary decision. So, the Respondent is in fact, simply, displaying a sound mind in effecting efficiency.
4.2.1 SCHOOL WORKFORCE
• The Applicant must have known that the Department, in its quest to adhere to Gender Equity Act, therefore in its Gender Equity Policy, has defined the Province as its workplace, not the school.
• Therefore the school workforce demographic profile is not a sole determining factor but just one of the factors the Department can/may take a look at to take a decision.
• The very Act does not designate African black males ahead of African black female group. The reason is simply that for all the past years, the Department, like many designated employers, has been appointing African black males ahead of their female counter-part. Therefore there is every reason for the Department to adopt affirmative action policy that affirms its compliance with the Constitution Act, Gender Equity Act, and Employment Equity Act and Regulations by appointing more African black females into management posts than their African black counter-part.
• In the same breath the Department has the legal obligation to remain a gender equity sensitive employer.
• This is due to the sensitive nature of the gender issues against the social stereotypes suffered in various communities. Therefore the Department cannot delegate such a function to the communities, hence the same Department has prudently elected to take it upon its shoulders to effect employment equity itself.
• This rationale is very much in line with South African Schools Act, and The Employment of Educators Act which give the SGB the powers, not appoint, but to recommend, and powers to the HOD of the Department to appoint. There is nothing new with this and it fully acceptable.
• This must be understood as a response to an issue about why the Department appointed an African black female ahead of an African black male, not the effectiveness of the Department’s in quest for employment equity.
• All said and done, there is absolutely nothing the Department did wrongly in appointing female in the position of the principal.
4.2.2 THE REASONS OF THE SGB TO RECOMMEND THE FEMALE
• The Applicant should have understood that the SGB has right to motivate its recommendation. The SGB’s letter contains both the recommendation and such motivation.
The Applicant should again have known that Department needs the most appropriate candidate in a post of management of a school. So, where the candidate exhibits the appropriate qualities, and the SGB has knowledge of this, there is no reason not recommending such a candidate to the HOD for appointment. The Applicant should be advised that the SGB, in doing this, did delegate its authority to ratify the selection process, it did not change the scores, and it observed that the score difference between the Applicant and the appointed candidate is with 5 points as per employment equity policy. So, here again there is nothing wrong. For reference, please take note of the EC5 and the letter of the SGB.
That this letter is addressed to the HR Co-ordinator at Mkuze, instead of the HOD is not an issue, because it was forward to the HOD, and SGB, with its low level of capacity, would not be reprimanded for such.
4.2.3 THE FUNCTIONS OF THE SGB
• The Applicant correctly refers to Constitution, The Employment of Educators Act, and The Labour Relations Act, however, the same Applicant falls short in understanding and accepting that the same principles he cites legitimize the very appointment he tries hard to dispute.
• The reason for such shortfall seems to lie in the failure to understand that the workplace is not the school, but the entire Province of KZN.
• The further talk of school demographic profile and the SGB recommendation and motivation have already been sufficiently addressed in the previous responses to issues about school workforce and the reasons to recommend the female. Further response will be redundant.
5. THE RELIEF
• It must be noted that the Department has no grounds to reverse the appointment. If that is done, it can cause a very serious dispute that will be difficult to debate against. Such will only hurt the school therefore the learners. Secondly the Council has no power to appoint. So, the Applicant still will not directly benefit from this process. Thirdly, the Council simply cannot override the DGC decision. The recent decision on a case between KZN PDE and NATU obo Mbopha High School is good case in point. So, leave the appointment untarnished.
6. REFERENCES
• Simply for purposes of further understanding the responses of the Respondent, please refer to the following annexures.
6.1 Annexure A The grievance form
6.2 Annexure B The DGC minutes.
6.3 Annexure C Myeni’s grievance withdrawal letter
6.4 Annexure D The dispute referral form
6.5 Annexure E The dispute withdrawal letter
6.6 Annexure F The condonation application
6.7 Annexure G The responding affidavit with its attachments
6.8 Annexure H The SGB letter
6.9 Annexure I The EC5
6.10 Annexure J The appointment letter
11. SECOND RESPONDENT’S (APPOINTEE) HEADS OF ARGUMENTS
Firstly I would like to draw the attention of the commissioner to schedule 2 AMENDMENT OF EDUCATOR’S EMPLOYMENT ACT, 1994 BY SECTION 63 In term of the mentioned statutes item 4(1) the qualification for appointment and promotion as an educator shall be determined by the Minister.
Item 4(2) Subject to the provisions of the constitution, Labour Relations Act 1995(Act 66 of 1995) and agreement reached in terms thereof posts shall be filled by appointment, transferee or promotion and the power to fill a post created under section 3 shall, subject to provisions of this Act, vest in the employer, who shall exercise such power with regard to posts referred to in section 3 (1) and (3) subject to the prior approval of the Member of the Executive Council or the Minister, as the case may be.
(3) The authority to fill a posts referred to in section 3 (1) and (3) at a public
school in terms of subsection(2) is exercised on the recommendation of a public school, as represented by its governing body, and the employer may only deviate from such recommendation if
a) The candidate does not have required qualification
b) The candidate has been found guilty of misconduct or
c) Sufficient proof exists that the recommendation made was based on improper influence.
None of the above was applicable in Vezukukhanya Primary School.
Commissioner the SGB are authorised to submit their recommendation and the HOD will appoint candidate based on his prerogative or SGBs recommendation if the recommendation was proper, the appointment by HOD proof that the recommendation by SGB was legitimate and proper,
It must further be noted that the recommended candidate has been tried and tested as she has been acting in the post.
Commissioner reversals of the appointment will spell doom to Nsibande and the family.
ISSUE TO BE DECIDED
12. I am to determine the respondent/employer perpetrated an act of unfair labour practice against the applicant in not appointing him to the post of principal.
SURVEY OF EVIDENCE AND ARGUMENT
13. The applicant in this matter seeks the setting aside of the appointment of the second respondent and that he be appointed as principal.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. I have taken cognizance of the decision in Sweeney/ Transcash [2000] 6 BALR 712 (CCMA) where the commissioner held that arbitration hearings constitutes a rehearing de novo on the merits.
15. The promotion process of the respondent the Department of Education is regulated by HRM documents and collective agreements. The stakeholders in the education sector continuously appraise the procedure manuals and where necessary amendments are effected.
16. The following are of importance to direct parties in this sector that careful consideration must be given to the following principles that guide/ direct the promotion/ appointment process.
17. Should a better understanding evolve then this would lead to a more expeditious filling of advertised posts and effective teaching and learning situation. It is a clear from the number of disputes attended to by the ELRC that the education sector is saddled with promotion disputes that have the net result that the vacant posts remain in limbo until the matters are settled either by agreement or by awards.
18. The following are recorded in the promotion manuals eg in HRM 81 of 2010 the following is recorded:
GENERAL PRINCIPLES
This procedure manual is developed in terms of the PAM of 1998, as amended, and replaces all other previous practices and procedure manuals.
5.4 Registration with the South African Council for Educators (SACE)
Applicants must provide proof of registration with SACE or must provide proof that they have applied for registration with SACE.
OBSERVERS
8.1…….
8.2. Valid credentials must be produced by observers.
8.3. The Observers will have access to the schedule of applications “sifted
in and sifted out” resulting from the sifting process.
8.4 The Chairperson of the Interview Committee shall give give at least (5)
working days written notice to the relevant Office of each Teacher Organisations
8.5. Non-attendance of observers will not prohibit the selection process
from proceeding as long as chairpersons have informed Teacher Organisations of scheduled meetings. The secretary must keep records of such invitations and transmissions to the Unions..
Role of Observers
8.6.1 The Union representative shall be observers to the process of
shortlisting, interviews and drawing up of a preference list.
8.6.2 Observers shall not be directly involved in the processes of
shortlisting and interviewing but will note that approved procedures and practices are adhered to in a fair, consistent and uniform manner.
8.6.3. An Observer has the right to intervene in terms of the procedures if
he /she deems that there is an infringement on agreed upon
procedures
8.6.4 In such an instance an observer must indicate to the Chairperson
that he / she wishes to intervene. It is expected that the observer shall observe the following:
* Must not discuss any question(s) or comment(s) in the
presence of the interviewee.
*Discussion concerning the intervention must take place after the interviewee has left the room.
8.6.5 Observers must sign the declaration of confidentiality (EC6) and
uphold the code of secrecy (my emphasis)
8.6.6 An observer must first attempt to resolve any concerns with the
Interview Committee. Should consensus not be reached, he / she
must inform the Interview Committee in writing that he / she is
lodging a grievance.
8.6.7. An observer must continue to participate in the process while the
grievance is being addressed by the District Grievance Committee
10. CONFIDENTIALITY
10.2. All members of the interview committee, observers and School
Governing Body members must sign the declaration of
confidentiality [EC6].(my emphasis)
21. GRIEVANCES / DISPUTES
21.2 An aggrieved applicant may lodge a grievance on the attached
Application Form with the Employee Relations component in the
District.
21.3 A Union Observer may also lodge a grievance on behalf of its
member/s by completing the attached form with the Employee
Relations component in the District.
21.4. A grievance should ideally be lodged within 7 days from the date of
any process being completed.
21.5 A declaration of a grievance will not prevent the Interview Committee from proceeding with the Selection Process unless it is advised to halt the proceedings by the District Grievance Committee.
21.6 The District……………………………such grievances.
21.7 Should the matter not be resolved to the satisfaction of the aggrieved party, a formal dispute may be lodged with the ELRC using the prescribed procedures.
21.8 The Department shall not make appointments to posts in dispute.
19. The first concern is that the promotion/ appointment procedure manual clearly defines the process and the obligations of the participants in the process. All participants must sign a confidentiality undertaking put simply it means that all information in their hands are privileged and confidential. As such any disclosure would render such information inadmissible. There must be strict adherence to the confidentiality clause. This seems to be the root cause of grievances and disputes at stages that the drafter had not envisaged.
20. Clearly the drafters of the procedures did not envisage the escalation of disputes but attempted to provide a quick and speedy finalisation of appointment to advertised posts.
21. Turning to the dispute at hand the role and powers of the District Grievance Committee (DGC) must be clarified and this may be done by referring to the Collective Agreement No. 1 of 2008 where the following are recorded:
THE GRIEVANCE PROCEDURE FOR HANDLING SCHOOL- BASED PROMOTION GRIEVANCES
2. SCOPE
This agreement shall bind the KwaZulu Natal Department of Education and all Educators employed by the KwaZulu Natal Department of Education and all parties to the KwaZulu Natal Chamber of the Education Labour Relations Council.
Section 8 of the Collective Agreement states as follows
The Grievance Committee, after having heard the parties must
make a finding. Should the findings be in favour of the applicant, the Grievance Committee shall make appropriate recommendations to the Human resources Manager at Head Office who shall implement the recommendation.
Section 9
The findings of the Committee shall be recorded on the form GR 4 and signed by the aggrieved, his / her union if applicable and the Chairperson of the Grievance Committee.
Section 10
If the Grievance Committee finds against the applicant, it shall recommend to the Human Resources Manager, Head Office whether to release the post or not.
Section 11
The Chairperson of the Grievance Committee shall communicate the decision of the Committee to the grievant within 3 working days of the conclusion of the grievance hearing.
Section12
The grievant must within 3 working days of receipt of the
findings indicate on the Form GR 4 whether the findings are
accepted or whether the grievant intends lodging a dispute with
the ELRC.
22. It is clear that the DGC was created to attend to dispute that could be resolved on a two prong basis.
23. Firstly ruling in favour of the grievant in which case the DGC’s decision would have to be implemented. The second case is when the DGC finds against the grievant who must them make an election as to whether to accept the finding or indicate whether he / she intends to lodge a dispute with the ELRC.
24. The parties are bound by the collective agreement and this includes individual educators employed by the KwaZulu Natal Education department. As such to set aside the decision of the DGC would sent the wrong message and would have the result of dragging on the appointment of persons to vacant / advertised posts.
25. In any event the SGB only makes recommendation to the Head of Department who has wide power in terms of the amendments to section 6 of the Employment of Educators Act, 1998 of which the following should be noted:
Section 7 (1) Section 6 of the Employment of Educators Act, 1998 is hereby amended by the substitution for subsection(3) of the following subsection:
(3) (a) …………..
(c) The governing body or the council, as the case may be, must submit, in order of preference to the Head of Department (HOD), a list of-
(i) at least three names of recommended candidates; or
(f) Despite the order of preference in paragraph (c) and subject to
paragraph (d) the Head of Department may appoint any suitable
candidate on the list.
(g) (iii) … appoint a suitable candidate temporarily or re-advertise the
post.
(h) The governing body or the council, as the case may be, may
appeal to the Member of the Executive Council against the decision of
the HOD regarding the temporary appointment contemplated in
paragraph (g).
(k) If no appeal is lodged within 14 days, the HOD may convert the
temporary appointment into a permanent appointment in section 6 B.
26. It is clear from the above that the prerogative in appointing personnel in promotion post is that of the employer. The reason is simple that the responsible functionary eg HOD must direct the department’s plans and targets within reasonable grounds failing which certain consequences would follow.
27. In this case I do not believe that the DGC had come to an incorrect conclusion. When it took submission from the parties it considered it prudent to determine the matter based on the facts before it that no candidate would be prejudiced if the process was to continue from the stage that it determined. The dispute by Mr Myeni was withdrawn.
28. Further it would be ill conceived to get the same interview panel to do re-do the process because they would in any event be ceased with the matter (functus officio). Further the School Governing Body had made its recommendation to the Head of department and a decision was taken to appoint the candidate recommended by the governing body. I believe that its decision was based on the best interest of the school and the community that requires the vacancy to be filled as soon as possible.
29. As a consequence of the above I determine that the respondent /employer did not perpetrated an act of unfair labour practice against the applicant in not appointing him to the post of principal. The appointment of the second respondent Ms N P Nsibande as principal of Velakukhanya Primary School is hereby confirmed.
AWARD
30. The application is dismissed
31. The appointment of Ms N P Nsibande as principal of Velakukhanya Primary School is confirmed.
32. There is no order as to costs.
DATED AT DURBAN ON THIS 24 DAY OF MARCH 2012.
AS DORASAMY (ARBITRATOR)