Case Number: PSES573-11/12 WC
Province: Western Cape
Applicant: PAJ Levendal
Respondent: Department of Education, Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Cape Town
Award Date: 24 August 2012
Arbitrator: L Martin
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN
Case No PSES573-11/12 WC
In the matter between
P.A.J. LEVENDAL Applicant
DEPARTMENT OF EDUCATION WESTERN CAPE First Respondent
I.S. KIEWITZ Second Respondent
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
The arbitration took place at the offices of the Department of Education, Western Cape in George on the 2nd and 3rd August 2012. Final written closing arguments were received on 14 August 2012. The applicant, Mr. P.A. J. Levendal was represented by Mr. W.A. Wiltshire, a union official of SADTU. The respondent, the Department of Education Western Cape (the respondent), was represented by Ms. B. Ndlondlo, its labour relations officer.
The witnesses for the applicant were Mr. P.A.J. Levendal (Levendal), Ms. E. Roelfse, the secretary of the Rosemoor Primary School Governing Body, and Ms. R. E. Nel, an educator at Rosemoor Primary School.
The witnesses for the respondent were Mr. T. J. Willemse, a circuit team manager in the Eden, Central Karoo Circuit, Ms. L. C. Titus, the chairperson of the Interview Committee for post 0050 and Mr. E. G. Bruinders, the principal at Rosemoor Primary School.
The parties handed in bundles of documents.
THE ISSUE IN DISPUTE
5. Whether the conduct of the respondent in filling the position of Departmental Head of Rosemoor Primary School as per advertisement 0050 of Vacancy List 1 of 2011 constitutes an unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended.
THE BACKGROUND TO THE DISPUTE
Levendal is employed as an educator at Rosemoor Primary School in George since 2001. He has been in the employ of the Western Cape Education Department since January 1987. His salary at present is R19 461,25. Levendal applied for the position of Head of Department at Rosemoor Primary School as per advertisement 0050 of Vacancy List 1 of 2011 and was interviewed during November 2011.
Eight candidates were short-listed and interviewed and Mr. Kiewitz was chosen as candidate number one and appointed into post no 0050 on 1 April 2012. The applicant alleges that he was unfairly treated during the filling of post 0050.
SUMMARY OF EVIDENCE AND ARGUMENT
8. Levendal testified that he was unfairly treated in that he has a Masters degree in Education which can be used for the benefit of the school as well as the experience he gained, yet he was not nominated as the best candidate. He also alleges that two of the three candidates who were nominated for the post were people who have left the employ of the WCED and then returned. They have had opportunities in the WCED and it is unfair to now return and get departmental positions. He testified further that he has qualities that can be used to the advantage of the school, which is his alma mater.
9. He completed his Masters degree in Education Management in 2010 and he has what the post criteria asked for. He is the right candidate for the position. He has never applied for a position that he is not suitable for. He is convinced that he suits the post profile.
10. One of the reasons why he applied for the job was that his thesis was about job satisfaction within education and the knowledge from his thesis he can use to the benefit of the job. When new young staff come into the Afrikaans department he mentors them.
11. He feels that it is unfair in that despite what he does and the skills that he has he is never the preferred candidate for any position that he applies for.
12. In cross examined it was pointed out to Levendal that post 0050 is a Technology and Natural Science post. He responded that he does have a qualification in Natural Science and that he taught Natural Science at Hibernia Primary School. It was then pointed out that Levendal did Biology and that Biology is not Natural Science whereupon he retorted that he did teach Natural Science and even did short courses.
13. When he was asked in cross examination whether he is qualified in technology he testified that he has no formal training in it but he did teach some needlework and computer usage and programmes. At Rosemoor Primary School he also taught Arts and Craft to Grade 6 and also to the intermediate phase and this goes hand in hand with technology as learners need to design. At the moment he is in the Afrikaans department and is not part of the Science nor Technology departments.
14. He was treated unfairly with the outcome of the interviews. He finds it difficult to understand that Kiewitz was nominated not only for post 0050 but also for two of the three post level 1 posts. The third nominee has left the WCED a year ago and is also nominated for post 0050.
15. It was put to Levendal that the interview process was not unfair as the SGB voted for their preferred candidates and no one controlled that. Levendal testified that there were favourite candidates.
16. Further during cross examination it was put to Levendal that Kiewitz was qualified and well experienced and that a Masters degree was not relevant for the position whereupon Levendal testified that it was unfair that someone who resigned from education can come back again and take up a senior position. Levendal is not being developed in this situation. According to the Personnel Administrative Measures (PAM) other applicants and young people should be given priority.
17. During the interview very few questions were about the job description and criteria and that was unfair. He did not raise this during the interview because he thought that the panel was higher than him and thought that they would do a good job. He did not raise his concerns with Mr. Marius Jansen, the SADTU representative. Only after the nominations were made did he decide to lodge a grievance. He did not raise his concerns immediately as he needed to think about them.
18. Kiewitz was an HOD before leaving the WCED. It is unfair to appoint him into an HOD position again and not give Levendal the opportunity. If one is not in the good books of the principal or if one has crossed swords with the principal then it is clear that one won’t be one of the favourite candidates.
19. Levendal was asked how could the principal influence the voting having had the SADTU representative and the other union representatives and the departmental representative present to which Levendal responded that he does not have an answer to that.
20. When Levendal was asked how could he lead Science and Technology if he is in the Afrikaans department he testified that at Rosemoor there was a tendency that one applies for a post, especially a senior post, and the year after one does not teach those subjects.
21. It was put to Levendal that the HOD position carries lots of curricula needs and how was Levendal going to lift the Science and Technology department, take it further, groom new teachers if he was in the Afrikaans department. Levendal responded that he is doing this in the Afrikaans department. Kiewitz is still dependent on Mr. Phillips who is the subject head for Technology.
22. It was put to Levendal that consensus was reached to nominate Kiewitz and the other two individuals in the presence of the SADTU representative, the other union representatives and the departmental representative and that the process was fair. All the candidates were subjected to the same process.
23. When put to Levendal that none of the Interview Committee panelists voted for him as one of their preferred three candidates and that was not unfair Levendal testified that he can’t help it if they do not like him.
24. Kiewitz testified that he began working for the WCED in 1984 and took the severance package in 1998. After nine months he began teaching computer classes at Rosemoor Primary School in a School Governing Body(SGB) position. After a year he was given a SGB contract position and on 1 April 2012 he took up the HOD post.
25. He was only nominated for one post level one position and not for two as testified to by Levendal.
26. Ms. Roelfse(Roelfse) testified that she is the SGB secretary. The SGB decided that everybody that applied for the position except those whom the WCED eliminated would be interviewed and there was no irregularity in that. Before interviews take place the chairperson and secretary of the Interview Committee get elected and there is always written confirmation of this. In the light of the previous disputes regarding this post 0050 the SGB decided that the current chairperson of the SGB will be the chairperson of the Interview Committee and Sue Ann Williams(Williams), the secretary of Mr. Tom Willems, the Circuit Team manager will be the secretary of the Interview Committee. For this reason Roelfse was not elected as the secretary of the Interview Committee.
27. Roelofse did not question this decision as she did not think that it was wrong.
28. She also testified that all the candidates were asked the same questions and the Interview Committee decided who they thought the best candidates were and she thought the process was fair. Levendal was not one of her top three choices for the post.
29. Ms. Nel(Nel) testified that there is friction between Levendal and the principal. If you go against the principal you shoot yourself in the foot. She thinks that the friction between Levendal and the principal could have led to Levendal’s not being appointed.
30. She was not part of the SGB or Interview Committee. She assumes that Bruinders manipulated the interview process. She has personal issues with Bruinders. He held back her IRP5 and financial statements. The school was a top school but since Bruinders was appointed as a principal things were not done honestly.
31. When Nel was asked during cross examination to show how the process was unfair she testified that on paper nothing was unfair but with her experience she has reason to believe that the process was unfair.
32. It was further put to Nel under cross examination that the SADTU and NAPTOSA representatives were present and did not record any irregularities, and she was asked whether she trusts the unions to which she replied in the affirmative.
T. J. WILLEMS
33. He is the circuit team manager in the Eden, Central Karoo, Circuit 3 district. He was the resource person at the interview process for post 0050. The questions were all asked in the same manner to all the applicants. The unions, NAPTOSA and SADTU were present at the interview process. Mr. Jansen, the SADTU representative declared the process fair. To his knowledge the interview process was a fair, due process. The interview committee discussed all the applicants and a choice for their best candidates. None of the members chose Levendal. The people who were nominated had the best answers. The process was fair.
34. The reason why Sue Ann Williams was chosen as the secretary of the interview committee was that it was the third time that they were re-doing the process. There were issues with the minutes during a previous interview stage and the SGB asked the WCED to bring in their own scribe so that the minutes could be done properly.
35. The interview committee had no objections to Sue Ann Williams being the secretary. She was not there to raise her voice but was only there to capture what was being said. She was not part of any decision taken.
36. The interview committee did not exclude Roelfse. She was very active in all the discussions. She commented on all the candidates.
L. C. Titus
37. She was the chairperson of the interview committee. She testified that on the morning of the interviews the panel got together, prayed and discussed the role of each person. They discussed the procedure. There would be six questions. They went through the questions. It was decided that Titus would ask all the questions. It was a transparent process. The unions were given everything. From the first to the last candidate everything was explained to all of them. The same questions were asked to all the candidates. After the interviews each candidate was asked if the process was fair and asked to sign a form stating that the process was fair. Levendal did not raise any objections and signed the form stating that the process was fair. He did not state that he was aggrieved or unhappy. The unions, SADTU and NAPTOSA did not raise any concerns regarding Levendal.
38. Williams did not vote as she was only there in a secretarial capacity. There were problems previously with the minutes for this post and therefore they asked Willems for someone who is objective. Nobody objected to Williams being the secretary.
39. There were not scoresheets. Based on the answers from the candidates the panel motivated for their three best candidates. Nobody voted for Levendal. No candidate was prejudiced. The interview committee was fair to all.
40. Titus, Bruinders, Mr. Oosthuizen (an SGB member) and Mr. Miller (the deputy principal and Technology expert) drew up the questions. These questions were taken to the interview committee for discussion . The interview committee decided how many questions to ask. Roelfse had no problems with the questions.
41. He is the principal of Rosemoor Primary School. Levendal teaches Afrikaans at the school. He was part of the interview committee. The same questions were asked of everyone. Williams, the secretary of the circuit team manager, took the minutes. The reason why she was chosen to do the minutes and not Roelfse was so that Roelfse who was inexperienced with taking minutes would not be put under pressure as this process was being re-done and it was found that the minutes of the previous process were too skimpy. He and Titus asked Willemse for help with taking the minutes. Willemse told them to consult the SGB . The SGB agreed that Williams could be chosen to take the minutes. Nobody, not even the unions objected to Williams’ role.
42. The interview committee decided that every candidate will be discussed after the interviews and they would vote for their three best candidates. They reached consensus and Kiewiets was chosen at candidate number one. Nobody voted for Levendal. Levendal did not really teach Science and Technology. Levendal has a qualification in Biology but that is not relevant to Natural Science.
43. The Masters degree in Education that Levendal has is not relevant to the curriculum for the advertised post. The Masters degree has nothing to do with Science or Technology. He can’t remember Levendal teaching Needlework and can’t see the relevance between Needlework and Technology.
44. He could not have told anyone to vote for Kiewits as the observers were always present. He did his discussions last to make sure that nobody followed him or said that he gave a lead. He has nothing against Levendal and on his own he can’t deny a person a post as the committee makes the decision. It was impossible for him to have manipulated the minutes as the union representatives were party to the preparation meeting. Mr. Miller, the deputy principal and Mr. Burger, the subject advisor of Technology helped with the questions relating to the field of Technology as they have expertise in this area.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
The following extract from a Labour Court decision sets out the role of the arbitrator in S186 (2) (a) disputes relating to promotion. “The decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, the court and arbitrator should not readily interfere with the exercise of the discretion…….A commissioner or arbitrator is not the employer. It is not the task of the commissioner or the arbitrator to decide who the best or most suitable candidate is. The role of the commissioner is to oversee that the employer did not act unfairly towards the candidate who was not promoted.” (S.A. Police Service v Safety and Security Sectoral Bargaining Council & Others (2010)31ILJ 2711 LC).
I find it strange that Levendal did not challenge the panel or at least ask questions of it when he felt that not enough questions were about the job description or criteria. His argument that they were higher than him is not plausible as Levendal emphasized his Masters degree and held it in high esteem and for those reasons I find it unlikely that Levendal would not challenge a panel who most probably have very few members if any at all educated up to a Masters degree. The same questions were asked of all the applicants nor did Levendal elaborate on what should have been asked or how. He did not show how this was unfair to him.
Regarding Levendal’s testimony that according to PAM other applicants and young people should be given priority over people who have left the employ of the WCED and want to return PAM states:
“ 2.3 Reappointment of educators who have retired or who have been retired on pension prematurely
In the case of reappointments, the only consideration shall be the interests of education, which includes the interests of the provincial education department and the interests of the child, the school and the state.
Other applicants who comply with the prescribed requirements for appointment, and young entrants to the profession in particular, shall be given preference over persons who have already had the opportunity of an extensive career in education”
According to the advertisement for the position the HOD position was in the Technology and Natural Science department. It would be in the interests of WCED, and the children at the school to have an HOD who is qualified in Technology and Natural Science.
There was no disputing that Kiewitz was capable in those fields. The testimony led by Levendal especially during cross examination highlighted the fact that Levendal did not have much training or experience in those fields and is in the Afrikaans department and thus it would not be in the interests of the WCED or the children at the school to have Levendal appointed into post 0050.
With regard to 2.3 (b) the clause states that other applicants who comply with the prescribed requirements for appointment(my emphasis) shall be given preference. The prescribed requirements are set out in the advertisement for the position and once again Levendal does not meet the requirement of competence and experience in Technology and Natural Science.
The applicant argued that it was wrong to elect Ms. Sue Ann Williams to act as the secretary of the Interview Committee. According to the Personnel Administrative Measures (PAM) contained in the Employment of Educators Act 76 of 1998 section 3.3(b) The Interview Committee shall comprise:
(i) In the case of public schools:
One departmental representative (who may be the school principal), as an observer and resource person;
The Principal of the school……
Members of the school governing body, excluding educator members who are applicants to the advertised post/s and
One union representative per union ……
(c)Each Interview Committee shall appoint from amongst its members a chairperson and a secretary.
I do agree with the applicant party that the appointment of Williams as secretary of the Interview Committee is not in accordance with the PAM as the secretary should have been chosen from amongst the interview committee members but the evidence led did not show that choosing her to be the secretary was in any way prejudicial to Levendal. This was not a serious flaw. The evidence as presented by the witnesses did not show any malicious intent in the appointment of Williams. Her role was simply to record the proceedings and she did not play any part in the nomination process. Her work during the interviews was not faulted by the applicant party. The reason the respondent party gives for choosing her is a cogent one. They chose her because she is an experienced secretary and they wanted everything to be correct during the interviews as it was the third time they were conducting interviews for post 0050. Williams acting as secretary of the Interview Committee did not make this process unfair.
The applicant did not raise any issues with the minutes. In fact it appears that Williams did a very good job of capturing the minutes. The applicant did not show any bad faith in the appointment of Ms. Sue Ann Williams and I accept the respondent’s argument that her appointment was to assist the process and have good minutes. It did not show how Ms., Sue Ann Williams being the secretary of the interview committee prejudiced Levendal in any way. All it argued was that it was wrong for Williams to be the secretary. Williams had no other role other than capturing minutes. She was not responsible for nominating candidates and thus did not have any role in Levendal not being nominated. I find the decision of the interview committee to appoint Williams as the secretary a fair decision. It was not borne out of malice nor was it capricious or arbitrary. It was a fair and rational decision and their motive was to assist the process and get the best minutes for the process.
The applicant argued that it was wrong that Mr. Miller drew up the questions because he was not part of the SGB but it did not show how this prejudiced Levendal. Everybody was subjected to the same questions. The questions were also taken to the Interview Committee who made their input too. They decided which questions to ask.
With regard to the applicant’s argument that Roelfse should have been part of drawing up the questions, she did have sight of the questions before the interviews and could have made her input. She did not testify that she found it wrong for her not to have been part of drawing up the questions. In fact this aspect of the interview process was not put to Roelofse at all by Wiltshire. There is nothing before me to show that it was wrong for Mr. Miller to have been consulted with drawing up the questions. The respondent’s reasons for choosing Miller were reasonable. He was an expert in the field of Technology. Roelfse did not testify to anything being unfair during the interview process.
56. The applicant raised an objection to Willemse being the resource person as he is a Circuit Team Manager and not an IMG manager but section 3.3 of PAM states that one departmental representative (who may be the school principal) should act as an observer and resource person. There is therefore nothing wrong with Willemse acting as the resource person.
With regard to Levendal’s contention that he was the most suitable candidate as he has a Masters degree in Education, the employer’s argument that Levendal lacked qualifications and experience in the teaching of Technology and Natural Science, the two subjects which were required for this post is an acceptable argument. These subjects were the required subjects listed in the advertisement of post 0050.
Levendal testified that he and Bruinders are not on good terms and therefore he was not one of the favourite candidates but the evidence does not show how Kiewitz was advantaged and how Levendal was disadvantaged.
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 Levendal 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 Rosemoor Primary School.
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 0050 of Vacancy List 1 of 2011 and accordingly the applicant is not entitled to any relief.
PANELIST: LORRAINE MARTIN
24 August 2012