PSES 574-11/12WC
Award  Date:
6 June 2012
Case Number: PSES 574-11/12WC
Province: Western Cape
Applicant: SADTU obo DJ Jansen
Respondent: Department of Education, Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Cape Town
Award Date: 6 June 2012
Arbitrator: L Martin


IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN

Case No PSES 574-11/12WC



In the matter between



SOUTH AFRICAN DEMOCRATIC TEACHERS UNION (SADTU) ON BEHALF OF D. J. JANSEN Applicant



and



DEPARTMENT OF EDUCATION WESTERN CAPE (WCED)

First Respondent





N. JONES

Second Respondent



ARBITRATION AWARD

________________________________________________________________





PARTICULARS OF PROCEEDINGS AND REPRESENTATION





1. The arbitration took place at the offices of the Department of Education, Western Cape in Worcester on 17 and 18 May 2012. Final written closing arguments were received on 29 May 2012. The applicant, Mr. D.J. Jansen(Jones) was represented by Mr. T. Vergotine, a union official of SADTU. The first respondent, the Department of Education, Western Cape (the respondent), was represented by Ms. B. Noble, its labour relations officer and the second respondent, Mr. N. Jones represented himself.



2. The witnesses for the applicant was Jansen, Mr. J. P. Fredericks, the cluster chairperson of the Community Police Forum and Mr. C. Morris, a School Governing Body(SGB) member of Waveren High School.



3. The witnesses for the respondent were Mr. D. Pick, an IMG Manager with the respondent, Mr. H. Jumat, the chairperson of the Interview Committee, Ms. A. Michaels, the principal at Waveren High School, and Ms. F. Adam, an SGB member of Waveren High School.



4. The parties handed in a common bundle of documents.





THE ISSUE IN DISPUTE



5. Whether the respondent committed an unfair labour practice during the interview process relating to the promotion of Jansen to post number 2042, Deputy Principal at Waveren High School as advertised in Vacancy List 5/2011 in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended.





THE BACKGROUND TO THE DISPUTE



6. Jansen started working for the WCED in 1983 as an educator at Waveren Primary School in Tulbagh which subsequently became Waveren High School.



7. Jansen is presently a Head of Department post level 2 at Waveren High School. His salary is currently R242000,00 per annum. In about August/ September 2011 he applied for post number 2042 advertised in Vacancy List 5/2011, for a deputy principal’s post at Waveren High School. He was one of five shortlisted candidates. On 27 October 2011 Jansen was invited by the School Governing Body of Waveren High School to attend an interview meeting. On 28 October he received a letter from the SGB stating that he is one of three nominees for the position. On 13 December he received a letter from the WCED stating that he was unsuccessful.



8. Mr. Jones was appointed into post number 2042 as the deputy principal at Waveren High School.





In terms of Section 138(7) of the Act, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties






SUMMARY OF EVIDENCE AND ARGUMENT



Daniel Johannes Jansen

10. Jansen testified that he was unfairly treated in that when the candidates were nominated he was not told in what position he was nominated.



11. He also felt that the Interview Committee was not duly structured because there were no educator representatives on it.



12. The question relating to the National Curriculum Assessment Policy Statements (CAPS) training was unfair because Jansen had not been on the CAPS training yet.



13. The structure of the interview venue was problematic in that the chairperson said that he could not ask questions and Jansen wanted to know why the SADTU observer sat between two parents whereas the NAPTOSA observer sat on her own at a separate table.



14. After the interview process Morris, a parent on the SGB who was present at the interviews told Jansen that Jansen at a certain stage had 3 points more than Jones when the chairperson looked at Adams’ scores and said that she had counted incorrectly. After the correction was made Jansen and Jones had the same points. Jansen’s concern now is that there was not any other person who confirmed that the points were wrong. It was unfair that nobody else checked the points. Only one person’s marks were checked. If Jansen’s points were not checked he would have had three points more and would have been nominated first. The unfairness in the process of the correction of the marks was that nobody was called to confirm the mistake of adding the points incorrectly.



15. The letters that go to the applicants telling them that they have been nominated into a certain position do not state in which position they were nominated but in staff meetings the staff are normally told who has been nominated first, second and third but this was not done.



16. The CAPS question was about what you know about CAPS and how it will contribute to the school’s development. It did not ask questions about the CAPS training. He had seen CAPS in catalogues and books.



17. Mr. Manuel, one of the educators at Waveren High School has sat in as the SADTU representative before but what is suspicious is that he sat between the parents. It can be a possibility that Manuel influenced the parents.



John Patrick Fredericks

18. He deposed to the affidavit on page 56 of the bundle of documents because on 31 October 2011 while at Tulbagh Police Station he went to visit Mr. Jumat (Jumat) , (chairperson of the Interview Committee) and asked him how far the appointment at Waveren High School is. Jumat told him that the process was finished. Jumat also told him that Jansen did not visit him at home but Jones did and that is why Jones could answer the questions well whereas Jansen could not. Jumat had discussed the questions with Jones and that is why Jones fared well. Jumat wanted to appoint Jansen. Jansen and Fredericks are distant relatives. Fredericks gave this information to Jansen and told him to give it to the other applicants. Fredericks’ sister also teaches at Waveren High School. He did not ask his sister who the other applicants were. He does not discuss work with his sister. He knew Jansen applied for the position because Jumat told him.



DEON DERRICK PICK

19. Pick is the IMG manager and was the resource person at the interview process. He held a training session with the SGB. He went into the interview process with an open mind. The criteria for the shortlisting was taken from the advertisement in the vacancy list. Points were allocated by studying the CV’s, testimonials, relevant documentation e.g. diplomas. The five people with the top scores were invited to interviews. Pick and the principal drew up the questions. Pick developed most of the questions and the principal added another one question.



20. These questions were put to the candidates and marks were allocated according to their answers and that is how they arrived at the three nominees for the position.



21. At no point did Jansen have more points than Jones. The points were written down at the end of the adding. He could not remember whether Jumat and Adams spoke about marks.



22. He can’t understand why there is the allegation that Manuel possibly influenced the parents as Manuel did not work with the scores and there was no opportunity for Manuel to do that. With regard to the CAPS question it was a very general question one which every senior employee should know about as it was frequently mentioned in the news and in newspapers. The question was not a question which required any depth of knowledge.



23. The SGB only got to know the questions a few minutes before the interviews began. Pick did a powerpoint presentation and went through the questions and the principal added another one. Then he had it printed and the interviews started immediately. Mr. Du Plessis, Mr. Koopman, Mr. Jones, Mr. Jansen and Mr. Andreas were all interviewed on the same day. It was not possible that the questions were discussed with the applicants before the time. They had also signed a confidentiality agreement that the process would be confidential. There was no way that the Interview Committee members could have given the questions to the applicants. He also relied on their integrity.



24. It was normal for the representative of the union to sit amongst the interview committee panelists. Two of the teachers who were SGB members applied for the position and so did not form part of the interview committee. They were not able to co-opt other teacher representatives as the positions were not vacant. When asked in cross examination that for such an important position you need a full Interview Committee Pick said that an interview Committee can consist of two people. The SGB has the power to appoint the Interview Committee. There was no irregular conduct during the interview process.



25. Mr. Manho a parent representative on the Interview Committee and the chairperson could not agree on point allocation and the discussion went on for a long time. Mr. Manho(Manho) said that his children were waiting for him and left. Pick did not have a problem with views expressed between Manho and the chairperson. He thinks he heard Manho say “Ek kan vir myself dink”.



26. It is normal for a Post Level 1 educator to apply for a Post Level 3 post.



Christo Henry Morris

27. He says that the seating arrangements of the interview meetings as depicted on page 62 looks familiar. There was no provision made for the union representative to sit separately and so he sat amongst the parents. When asked if he noticed any irregularity he said there were a few things that he would not agree with. Many things happened with regard to Manho’s walking out. Manho’s scoring and integrity were placed in doubt. Manho said that he can think for himself. They were required to justify their point allocation. Morris asked the chairperson why they had to justify scores with point 3 but not point 2. He noticed that Manho had given Jansen more marks than Jones and it was there that doubt was created and then Manho decided to leave. Earlier Manho had said that he needed to go to look after his children but not before he actually left.

28. He left because his marks were questioned.



29. At a certain point during the interview process when the marks were added Jansen had 63 marks and Jones had 60. Then Ms. Adams said that she made a mistake with Jones’ scoring. She had scored him 3 marks too much. Jumat then went to check Adams’ scores. He looked at the scoring and said that it was wrong. The error was corrected and then Jansen and Jones scored the same. All of them knew about this but they did not see it. It was not confirmed with anyone. He did not think that it was relevant to get up to go and check it for himself. Only when he got home did he realize that he should have gone to check it for himself. The argument of the respondent during cross examination was that as Morris had been part of many interview processes he would have been alive to any such irregularity and should have challenged it immediately. It was fair for Adams to say that she was wrong. Jansen was disadvantaged because no one saw whether this was the truth.



30. It was not abnormal for the union representative to sit amongst the parents.



31. He was attacked by the chair. He was unhappy and would have been the next person to walk out. He is a believer and his religion came into question. He phoned Pick the following morning to complain about the fact that Pick did not protect him.



32. He has been on the SGB of Waveren High School for 9 to 12 years and has sat in on interviews previously.



33. Manuel did not try to influence him. To his feeling they needed to motivate their scoring because someone wanted to go for a certain candidate. It was unfair to ask Jansen the question on CAPS as he did not have training on it. Jumat attacked his Christian principles to change his mind. When it was put to Morris in cross examination that at that point the marks were handed in Morris responded that it did have relevance to the process.



34. He did not want to make Jansen the candidate for the post.



Hendrik Jumat

35. He was the chair of the Interview Committee. They held a planning meeting with the SGB and it was confirmed that the whole SGB will form the Interview Committee. Half an hour before the interviews the Interview Committee met to compile the questions. Pick put questions up on the projector and gave an opportunity to the Interview Committee to ask questions and choose questions. After agreement was reached on the questions Pick alone left the room to make hard copies of the questions for the Interview Committee members. Then the interviews began. It was agreed that the format would be the chair would lead the process, points must be motivated and if no consensus is reached voting will take place.



36. Normally union representatives sit with the other members. Jansen was not treated unfairly by the seating arrangement of the Interview Committee and the union representative could not have influenced the Interview Committee. Manuel did not give input at the interviews. No one except Pick left the room.



37. He denies that what Fredericks testified and deposed to in the affidavit are true. He wants to take up this issue with lawyers. Fredericks is lying. Jansen was weak in answering questions especially question three. The CAPS question was about new developments in education and the question was not unfair towards Jansen. He can’t remember the three points incident. He did not go to Adams to check the points. During the consensus there were differences regarding points. It concerned all the candidates and did not only revolve around Jones and Jansen.



38. Manho needed to motivate points and said that his children were alone at home and left. Every member needed to motivate his marks. Manho did not want to motivate his marks at all. He left possibly because of his children or because he did not want to motivate his marks. Manho left while they were trying to reach consensus. Jumat asked him twice to motivate his marks and then he left.



39. He does not remember him saying that he can think for himself. He can’t remember having a long conversation with Manho. He did not talk to Morris about religion. This is his third term on the SGB and he has sat through many interviews and two of them as a chairperson.



40. The reason that there were no teacher and pupil representatives on the SGB was that Pick had said as there was no vacancy on the SGB there could be no proxy for teachers. The pupils had asked to be excused.



41. Under cross examination he was asked how Bezuidnehout could be allowed to be on the SGB if he was under corrective supervision. In terms of page 5 of the Provincial Gazette Extraordinary he is allowed to act. Bezuidenhout was imprisoned for three months.



42. He can’t remember talking to Fredericks regarding the Deputy Principal’s position at Waveren High School.



Andalene Michaels

43. She has been the principal of Waveren High School for the past six months. A few minutes for the interviews began Pick put questions up on a wall and the Interview Committee decided on the questions. Pick went to make copies and gave it to the Interview Committee members and then they were ready to take their first candidate. It was not possible to have discussed the questions with the applicants because the questions were drawn up a few minutes before the interviews.



44. Pick told the Interview Committee that as no vacancy existed on the SGB the teachers who were not present could not be represented by a proxy. The students on the SGB were invited to the process but both of them excused themselves, Gaynor Pedro handed in a written apology whereas the other student gave a verbal apology.



45. There was no situation where at a certain point Jansen had three more points than Jones and where Adam pointed it out to Jumat and then corrected.

46. Manho left after the chairperson asked him to motivate his scores. He said his children were alone at home and he left. There was no personal attack on Manho.In their discussion regarding the format it was decided that there would be scoring, motivation and consensus. Manho left after all the points were on the board. Only the consensus needed to be done.



47. According to her knowledge there were no irregularities with regard to Bezuidenhout being on the SGB. He was allowed to be there.



48. There was no incident where Jumat attacked Morris’ Christian principles.



49. Manho did not want to justify his marks. She did not hear him say that he can think for himself. Manho walking out was quite normal. There was no two or three minute conversation.



50. The CAPS question was to see whether the applicants are up to date with the latest developments not to catch them out.



51. Florence Adam

52. She was the parent representative on the Interview Committee. She did not count incorrectly and there was no three point discrepancy. There were no concerns between the chairperson and the members of the SGB regarding the scoring.



53. Manho left when the chairperson told him to motivate the points given to Jones. He said that he is leaving as the children are waiting at home.



54. Fredericks gave her a lift to the Interview meeting and in the car said that they must vote for Jansen as he must get a boost. She asked him if they are not going to look how people fare. Fredericks then said that if Jansen does not do well he must get a boost. Fredericks said “Fok buitestanders”. (Jones is from Gouda).



55. Morris’ religion was not attacked.





ANALYSIS OF THE EVIDENCE AND ARGUMENT


56. In order to show unfairness relating to promotion, an employee needs to show that the employer, acted irrationally, capriciously or arbitrarily or was biased or driven by malice or fraud or failed to apply its mind or unfairly discriminated against the employee.



57. Jansen raised a number of issues which he contends denote irregular conduct during the interview process of post number 2042.



58. He contends that he was treated unfairly in that when he was told that he was nominated to the position he was not told in what position he was nominated. The evidence shows that none of the nominees were told in what position they were nominated so Jansen was not treated any differently. Jansen also testified that he had been part of Interview Committees before as a teacher representative and the letter that went out to nominees did not state in what position they were nominated e.g. first, second or third. Neither the legislation nor the Collective Agreements make this a prerequisite term. The fact that Jansen was not told in what position he was nominated does not make this process irregular.



59. Jansen also contends that the Interview Committee was not duly structured as it lacked educator and pupil representatives. The educator representatives were applicants for the post and the pupil representatives asked to be excused. In terms of the Personnel Administrative Measures (PAM) which sets out the terms and conditions of employment of educators determined in Section 4 of the Employment of Educators Act of 1998, Section 3.3 (b) sets out what the composition of the Interview Committee shall be. It does not state that there must be educator representatives on it. In fact it says that it should exclude educator members who are applicants to the advertised post and this is what Waveren High School did. The applicant failed to show how this amounts to an irregularity.



60. Jansen further contended that the question asked during the interviews relating to CAPS was unfair as he had not been to CAPS training. Firstly the uncontradicted evidence was that the question was very broad and relates to new developments in education and what the applicant knew about it. One did not need to have gone to CAPS training to be able to answer the question. As Michaels testified the question was to see whether the applicants were up to date with the latest developments and not to catch them out. The testimony was also that the invitation to go to CAPS training was made available to Jansen also but he did not avail himself of it before the intervies. The post that Jansen was applying for was a very senior one at the school and I find nothing wrong with a broad question that relates to new developments in education. It was argued that it is important that all senior staff are familiar with new developments in education. I wholly agree with this sentiment.



61. Jansen alleges that the fact that the SADTU representative, Mr. Manuel sat amongst parents and not at a separate table and this could lead to his influencing parents. The testimony of all the witnesses, including Morris, who testified on behalf of the applicant and who sat next to Manuel was that that Manuel did not influence them. Pick testified that it was not possible for Manuel to do so as others would have overheard him. Everybody sat down and the interviews began and the scoring, motivation and consensus went ahead right there. There is no testimony before me that Manuel influenced anybody or even tried to do it. Pick also testified that it was normal for union representatives to sit amongst the interview panelists and this was not contradicted. This means the seating arrangements were normal and not irregular.



62. Regarding the testimony and affidavit of Fredericks, Jumat testified that Jones did not visit him. Pick, Michaels and Jumat testified that Pick brought questions to the Interview meeting and a few minutes before the meeting showed them to the panelists for discussion and it was only then that the questions were finally compiled. I find it unlikely that Pick gave the questions to Jumat before the time. There was no way that Jumat knew what the questions would be before the time.



63. The testimony of Adams shows that Fredericks was trying to garner support for Jansen when he told her in the car to the interview meeting that they should vote for Jansen as he needs a boost. As a witness Fredericks was not credible.



64. The only witness who testified to Adams making a mistake with Jansen’s marks is Morris. All of the respondents’ witnesses, including Adams, testified that this did not happen. Even if it did happen and even if Morris’ testimony was correct , this would not be a material defect in the process.



65. The testimony regarding the incident where Mr. Manho walked out shows that there was a rather lengthy discussion between Jumat and Manho where Manho was reluctant to justify his scoring. There is a difference of opinion amongst the witnesses as to whether this was because of his having to justify his scores or because his children were waiting. In the absence of testimony from Manho himself this amounts to speculation. From the testimony of the witnesses at this arbitration I do not find that any irregularity took place. Scoring, justifying mark allocation and consensus reaching is normal procedure in the interviewing process.



66. The applicant argued that Mr. Bezuidenhout, a parent and member of the SGB who served on the Interview Committee and who was placed under correctional supervision by Obiqua Correctional Services and who served his time at Waveren High School should not be on the SGB because of his criminal record.



67. The respondent argued that according to the Province of the Western Cape:Provincial Gazette Extraordinary 6519 of Tuesday 20 May 2008 Item 3 which deals with Disqualification of Members of a Governing Body a person cannot be a SGB member if he or she “has at any time been convicted of an offence for which he or she was sentenced to imprisonment, without the option of a fine, for a period exceeding six months, or has not yet served his or her full period of imprisonment, unless he or she has received a free pardon or the period of his or her imprisonment has expired at least three years prior to the date of his or her election as a member of such body”. Mr. Bezuidenhout served a sentence of three months correctional supervision which was completed on 6 June 2011. Thus when the interviews took place on 27 October 2011 Mr. Bezuidenhout had finished his correctional supervision and was therefore eligible to be an SGB member.



68. There is no evidence before me to conclude on a balance of probabilities that the employer has acted irrationally, capriciously or arbitrarily or that it has acted in a manner biased or prejudicial towards Adams or any of the other candidates. Its behavior was not driven by malice nor fraud nor did it exert any undue influence on anyone during the interview process. Nor did the employer fail to apply its mind to the situation at Waveren High School.





AWARD





69. I find that the Applicant has not discharged the onus of proving that the Respondent committed an unfair labour practice in the filling of post number 2042, Deputy Principal at Waveren High School as advertised in Vacancy List 5/2011 and accordingly the applicant is not entitled to any relief.





PANELIST: LORRAINE MARTIN

6 June 2012
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