PSES 42-12/13
PSES 42-12/13
Award Date:
31 July 2012
Case Number: PSES 42-12/13
Province: Limpopo
Applicant: THINDISA J N
Respondent: DoE Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: DoE Polokwane, Limpopo
Award Date: 31 July 2012
ARBITRATION
AWARD
Case Number:
PSES 42-12/13
Commissioner:
SIBONGISENI SITHOLE
Date of Award:
31 JULY 2012
In the ARBITRATION between
THINDISA J N
(Applicant/ Employee)
And
DEPARTMENT OF EDUCATION – LIMPOPO
(Respondent/ Employer)
Union/Applicant’s representative:
MR N S SETATI
Union/Applicant’s address:
P O BOX 116
RANKUWA
0208
Telephone:
015 291 3407
Fax:
015 295 4499
E-mail:
Respondent’s representative:
MR T M MAHASHA
Respondent’s address:
113 BICCARD STREET
POLOKWANE
Telephone:
015 290 9351
Fax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. This matter was heard in the offices of the Department of Education in Polokwane, on 26 July 2012. The applicant, Ms Johanna Ntswaneng Thindisa attended the hearing and Mr. Setati, a union official represented her. Mr. T. M.Mahasha represented the respondent. The parties presented oral arguments. The proceedings were electronically recorded. Both parties submitted documents into evidence.
BACKGROUND TO THE DISPUTE
2. There is a vacant acting deputy principal’s post at Khabele Primary School. The applicant has since 2006 /10/01 been appointed as and HOD in the school. There is another HOD (Maluleke O.C) who has been appointed in the same school on 01/10/2006.
3. The applicant avers that she should have been appointed automatically to the post of acting deputy principal and not be subjected to an interview. The respondent’s averments were that the applicant must be subjected to an interview with the other HOD at the school.
ISSUE TO BE DECIDED
4. Whether the employer’s conduct amounted to unfair labour practice as contemplated in s186(2)(a) of the Labour relations Act.
SURVEY OF EVIDENCE AND ARGUMENT
THE SUMMARY OF THE APPLICANT’S CASE
5. The applicant’s assertion was that the position of the deputy principal became vacant after the principal has left. According to the Regulation dated 6/12/ 2005 one of the HOD’s was supposed to occupy the post. The applicant and Maluleke OC were HODs in the school and the applicant was the most senior.
6. The Regulation provides for the acting appointments in promotion posts that are school based. Para 3 of the Regulation reads: “With immediate effect, the following guidelines must be observed in filling promotion post in an acting capacity. 31. If for some reason, the most senior educator (principal) at the school exits the system or becomes unavailable, the next senior educator (deputy principal) from the same school should automatically assume the acting role. This criterion (of seniority and same school) should accordingly apply to other levels.”
7. The applicant has more experience than the other HOD. She was acting principal in another institution for three years before she was appointed an HOD at the school. The contention currently is at post level 2 whilst she was acting at post level 4. Looking at the profile of the two HODs the applicant has more experience than the other. The applicant’s experience is relevant to the post and she will bring experience to the post if she is appointed and that should give her advantage to be appointed to the post.
8. The school required that the applicant to be subjected to an interview and the applicant lodged a grievance which the department failed to resolve. The matter was referred to the Circuit office and further to the District office to no avail. The respondent did not attend the grievance hearing scheduled.
9. The school did not even bother to ask for the profile of the two educators but resorted to voting on the matter. The applicant did not refuse to be subjected to an interview but the grievance had to be resolved first.
10. Para 3.2 of the Regulation reads “ In case there is more than one educator on the same level of seniority, the following guidelines should be used to determine one who should act:
· Experience (at the level) and , should there be a tie
· Internal interview as per Res. 1/2-000 (short listing and interviewing procedures).
11. The applicant submitted that she should be appointed without an interview as an acting deputy principal taking into account her experience which she obtained from the same province.
SUMMARY OF THE EMPLOYER’S CASE
12. The employer submitted that the provision of Para 2.3 of Chapter A of PAM in terms of the Employment of Educators Act 76 of 1998 provides a clear indication as to what is referred to as “level” in para 3.1 of the Regulation. It provides for post levels 1 to 6 as representing the most senior educator and “1” representing the most junior educator at a school setup.
13. The two educators, Thindisa JN and Maluleke OC are both appointed HOD’s at post level “2”. They therefore have the same seniority in terms of chapter A of PAM.
14. The golden rule of interpretation is that when words are clear, plain and unambiguous, the courts are bound to give effect to that meaning. It is clear that by a “level” the writer of the Regulation, was referring to levels as provided in Chapter A of PAM. Nothing less, nothing more. If the meaning was not in line with the provision of PAM that would have be ultra vires.
15. The applicant and Maluleke OC are two HOD’s at level 2 at Khabele Primary School; they consequently have the same seniority. Because there is more than one educator on the same level of seniority, the respondent had to consider experience at level 2. The applicant and Maluleke were both found to have the same experience at level 2 because they were both employed at that level in 2006/10/01. The next procedure would be to subject them to internal interviews.
16. The respondent decided to subject both HODs to internal interviews and the applicant decided not to subject herself for interviews indicating that she should be appointed automatically. The respondent further argued that the applicant’s argument has no legal or factual basis.
17. The respondent has to apply the provision of the Regulation and would consider the applicant’s experience during the interview.
18. The respondent submitted that the applicant’s case should be dismissed. The applicant and Maluleke should be subjected to interviews and an appropriate candidate be appointed to act as a deputy Primary of School alternatively the respondent be allowed to appoint Maluleke to act as a Deputy Principal.
ANALYSIS OF EVIDENCE AND ARGUMENT
19. It is common cause that there is a vacant acting deputy principal post at Khabele Primary School. The applicant and Maluleka were appointed in 2006/10/01 as HOD’s at the school. This suggests that the two educators have the same seniority, which is provided for in para 3.2 of the Regulation which governs appointment of educators in acting positions date 2006/12/05.
20. The applicant’s contention was that she should have been automatically appointed to act as a deputy principal without being subjected to interviews taking into account her previous experience as an acting principal for three years. The respondent argued that the both educators are both appointed HOD’s at post level 2 they have same seniority in terms of chapter A of PAM.
21. The regulation makes no mention of experience but refers to the next senior educator from the same school should be automatically assume the acting role. If one looks at seniority, same school and same level then the obvious conclusion would be that both educators are next in line for the appointment of the acting deputy principal post.
22. Therefore para 3.2 of the Regulation would therefore be applicable. The Regulation provides for experience (at that level), in this case there is no evidence to suggest that the applicant has more experience in level 2. Furthermore the guideline provides that internal interviews as per Res. 1/2000 (shortlisting and interviewing procedures).
23. The applicant’s experience prior her appointment as HOD is not in dispute. An interview will provide the applicant with an opportunity to submit her previous experience for consideration. The regulations make no provision with regards to previous experience in other positions as a requirement in filling acting posts.
21. I thus find on a balance of probabilities that the applicant has failed to establish the existence of unfair labour practice.
AWARD
22. The applicant and Maluleke OC must be subjected to interviews as per provisions of para 3.2 of the Regulation dated 2005/12/6 and an appropriate candidate be appointed as an acting deputy principal of Khabele Primary school.
23. I make no order as to costs.
____________________________
ELRC PANELIST: (SIBONGISENI SITHOLE)
Province: Limpopo
Applicant: THINDISA J N
Respondent: DoE Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: DoE Polokwane, Limpopo
Award Date: 31 July 2012
ARBITRATION
AWARD
Case Number:
PSES 42-12/13
Commissioner:
SIBONGISENI SITHOLE
Date of Award:
31 JULY 2012
In the ARBITRATION between
THINDISA J N
(Applicant/ Employee)
And
DEPARTMENT OF EDUCATION – LIMPOPO
(Respondent/ Employer)
Union/Applicant’s representative:
MR N S SETATI
Union/Applicant’s address:
P O BOX 116
RANKUWA
0208
Telephone:
015 291 3407
Fax:
015 295 4499
E-mail:
Respondent’s representative:
MR T M MAHASHA
Respondent’s address:
113 BICCARD STREET
POLOKWANE
Telephone:
015 290 9351
Fax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. This matter was heard in the offices of the Department of Education in Polokwane, on 26 July 2012. The applicant, Ms Johanna Ntswaneng Thindisa attended the hearing and Mr. Setati, a union official represented her. Mr. T. M.Mahasha represented the respondent. The parties presented oral arguments. The proceedings were electronically recorded. Both parties submitted documents into evidence.
BACKGROUND TO THE DISPUTE
2. There is a vacant acting deputy principal’s post at Khabele Primary School. The applicant has since 2006 /10/01 been appointed as and HOD in the school. There is another HOD (Maluleke O.C) who has been appointed in the same school on 01/10/2006.
3. The applicant avers that she should have been appointed automatically to the post of acting deputy principal and not be subjected to an interview. The respondent’s averments were that the applicant must be subjected to an interview with the other HOD at the school.
ISSUE TO BE DECIDED
4. Whether the employer’s conduct amounted to unfair labour practice as contemplated in s186(2)(a) of the Labour relations Act.
SURVEY OF EVIDENCE AND ARGUMENT
THE SUMMARY OF THE APPLICANT’S CASE
5. The applicant’s assertion was that the position of the deputy principal became vacant after the principal has left. According to the Regulation dated 6/12/ 2005 one of the HOD’s was supposed to occupy the post. The applicant and Maluleke OC were HODs in the school and the applicant was the most senior.
6. The Regulation provides for the acting appointments in promotion posts that are school based. Para 3 of the Regulation reads: “With immediate effect, the following guidelines must be observed in filling promotion post in an acting capacity. 31. If for some reason, the most senior educator (principal) at the school exits the system or becomes unavailable, the next senior educator (deputy principal) from the same school should automatically assume the acting role. This criterion (of seniority and same school) should accordingly apply to other levels.”
7. The applicant has more experience than the other HOD. She was acting principal in another institution for three years before she was appointed an HOD at the school. The contention currently is at post level 2 whilst she was acting at post level 4. Looking at the profile of the two HODs the applicant has more experience than the other. The applicant’s experience is relevant to the post and she will bring experience to the post if she is appointed and that should give her advantage to be appointed to the post.
8. The school required that the applicant to be subjected to an interview and the applicant lodged a grievance which the department failed to resolve. The matter was referred to the Circuit office and further to the District office to no avail. The respondent did not attend the grievance hearing scheduled.
9. The school did not even bother to ask for the profile of the two educators but resorted to voting on the matter. The applicant did not refuse to be subjected to an interview but the grievance had to be resolved first.
10. Para 3.2 of the Regulation reads “ In case there is more than one educator on the same level of seniority, the following guidelines should be used to determine one who should act:
· Experience (at the level) and , should there be a tie
· Internal interview as per Res. 1/2-000 (short listing and interviewing procedures).
11. The applicant submitted that she should be appointed without an interview as an acting deputy principal taking into account her experience which she obtained from the same province.
SUMMARY OF THE EMPLOYER’S CASE
12. The employer submitted that the provision of Para 2.3 of Chapter A of PAM in terms of the Employment of Educators Act 76 of 1998 provides a clear indication as to what is referred to as “level” in para 3.1 of the Regulation. It provides for post levels 1 to 6 as representing the most senior educator and “1” representing the most junior educator at a school setup.
13. The two educators, Thindisa JN and Maluleke OC are both appointed HOD’s at post level “2”. They therefore have the same seniority in terms of chapter A of PAM.
14. The golden rule of interpretation is that when words are clear, plain and unambiguous, the courts are bound to give effect to that meaning. It is clear that by a “level” the writer of the Regulation, was referring to levels as provided in Chapter A of PAM. Nothing less, nothing more. If the meaning was not in line with the provision of PAM that would have be ultra vires.
15. The applicant and Maluleke OC are two HOD’s at level 2 at Khabele Primary School; they consequently have the same seniority. Because there is more than one educator on the same level of seniority, the respondent had to consider experience at level 2. The applicant and Maluleke were both found to have the same experience at level 2 because they were both employed at that level in 2006/10/01. The next procedure would be to subject them to internal interviews.
16. The respondent decided to subject both HODs to internal interviews and the applicant decided not to subject herself for interviews indicating that she should be appointed automatically. The respondent further argued that the applicant’s argument has no legal or factual basis.
17. The respondent has to apply the provision of the Regulation and would consider the applicant’s experience during the interview.
18. The respondent submitted that the applicant’s case should be dismissed. The applicant and Maluleke should be subjected to interviews and an appropriate candidate be appointed to act as a deputy Primary of School alternatively the respondent be allowed to appoint Maluleke to act as a Deputy Principal.
ANALYSIS OF EVIDENCE AND ARGUMENT
19. It is common cause that there is a vacant acting deputy principal post at Khabele Primary School. The applicant and Maluleka were appointed in 2006/10/01 as HOD’s at the school. This suggests that the two educators have the same seniority, which is provided for in para 3.2 of the Regulation which governs appointment of educators in acting positions date 2006/12/05.
20. The applicant’s contention was that she should have been automatically appointed to act as a deputy principal without being subjected to interviews taking into account her previous experience as an acting principal for three years. The respondent argued that the both educators are both appointed HOD’s at post level 2 they have same seniority in terms of chapter A of PAM.
21. The regulation makes no mention of experience but refers to the next senior educator from the same school should be automatically assume the acting role. If one looks at seniority, same school and same level then the obvious conclusion would be that both educators are next in line for the appointment of the acting deputy principal post.
22. Therefore para 3.2 of the Regulation would therefore be applicable. The Regulation provides for experience (at that level), in this case there is no evidence to suggest that the applicant has more experience in level 2. Furthermore the guideline provides that internal interviews as per Res. 1/2000 (shortlisting and interviewing procedures).
23. The applicant’s experience prior her appointment as HOD is not in dispute. An interview will provide the applicant with an opportunity to submit her previous experience for consideration. The regulations make no provision with regards to previous experience in other positions as a requirement in filling acting posts.
21. I thus find on a balance of probabilities that the applicant has failed to establish the existence of unfair labour practice.
AWARD
22. The applicant and Maluleke OC must be subjected to interviews as per provisions of para 3.2 of the Regulation dated 2005/12/6 and an appropriate candidate be appointed as an acting deputy principal of Khabele Primary school.
23. I make no order as to costs.
____________________________
ELRC PANELIST: (SIBONGISENI SITHOLE)