Case Number: PSES 22-12/13 KZN
Applicant: NATU obo SV Mthembu
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 20 September 2012
Arbitrator: AS Dorasamy
IN THE ARBITRATION
CASE NO.: PSES 22-12/13 KZN
IN THE MATTER BETWEEN :-
NATU O B O MTHEMBU S V APPLICANT
DEPARTMENT OF EDUCATION-KZN FIRST RESPONDENT
SADTU O B O ZULU P N SECOND RESPONDENT
DATE : 20 SEPTEMBER 2012
TIME : 10H00
VENUE : DOE KZN – REGIONAL OFFICE
ARBITRATOR : MR A S DORASAMY
ATTENDANCE/S : APPLICANT
MR J ERASMUS
A N N KHOZA
MR M E DLAMINI
1. The arbitration proceedings commenced at 10h00 on the 20 September 2012.
HEARING AND REPRESENTATION
2. The Mr J Erasmus of NATU represented the applicant and Ms A N N Khoza represented the First respondent and Mr M E Dlamini of SADTU represented the Second Respondent (appointee Mr P N Zulu).
3. The respondent raised a Point In Limine and the parties agreed as follows:
The respondent raised a number of Points In Limine and the parties agreed as follows:
No oral evidence will be tendered.
The applicant/ employee will serve its Heads of Arguments on the Application for Condonation on the commissioner and respondents on or before 29 SEPTEMBER 2012.
The First respondent /employer will serve its Heads of Arguments (Answering) on the Application for Condonation ,Points in Limine and Merits on the commissioner 2nd respondent and applicant on or before 4 OCTOBER2012
The Second respondent /joinder will serve its Heads of Arguments on the Application for Condonation, Point in Limine and Merits on the commissioner, 1st Respondent and applicant on or before 4 OCTOBER 2012
The applicant/ employee will serve its Heads of Arguments (Replying) on the commissioner and respondents on or before 11 OCTOBER 2012.
The award will be rendered thereafter.
4.1 The matter initially was heard by Commissioner A Pillay who ruled that the applicant was required to make a written application for condonation and for reasons unknown to me the application was not determined hence the matter was set down before me to render an In Limine award in respect of the matter.
4.2 The post in dispute is that of principal of Magumbomane Primary School. The interviews were held in November 2010. The first ranked candidate accepted a post elsewhere and the applicant was the second ranked candidate but the post was offered to the Second Respondent who was a displaced principal earning the salary of a principal but was serving as a level one educator.
The Second Respondent was appointed in April 2011 and on the 6 April 2011 Ms N P Zulu of NATU was present at a meeting to induct the Second Respondent as principal of the school and the SGB approved his appointment and remarked that he happened to be their “home boy”.
The applicant lodged a dispute on the 3 April 2012 indicating that the delay was occasioned by their attempted to resolve the matter with the department structures and the MEC.
The respondent raised a Point in Limine that the applicant was required to apply for condonation for referring the dispute late.
The applicant contends that he has rendered a reasonable explanation for the late filing of his dispute and has good prospects of succeeding in the matter.
The First Respondent challenges the application and believes that application should be refused and the Second Respondent’s appointment be confirmed.
5. APPLICANT’S (EMPLOYEE’S) SUBMISSION
The Applicant is NATU a registered union acting in its capacity as such on behalf of Mr. S.V Mthembu member of NATU.
In terms of HRM 37 of 2010 post number 1569, a principal’s post was advertised. Interviews were held on or about November 2010. The department duly appointed the recommended candidate. This candidate however declined the post as he had already been placed elsewhere.
The common practice in such situations is that the person, who was second on the EC5 form under “names of recommended candidates in order of preference”, is then offered the position. In the current case the applicant was the second place candidate as per the EC5 form. (Annexure “A”).
The applicant however was not offered the position. Instead the 2nd respondent was placed in the post.
The 2nd respondent was a displaced educator who had in no way been a part of the interview process for the post. What must be borne in mind is that if this was just an issue of placing a displaced educator, then surely one of the other candidates who was a displace principal herself and who was part of the interview process should have been offered the post above a complete stranger to the process.
The second respondent was place in April 2011. It is at this point that
NATU stepped in, firstly a letter was sent to the manager of human resources Mr. Hlela (Annexure “B”). Thereafter meetings were held with the MEC for education, Mr. Mchunu in May 2011, December 2011, and March 2012 where this matter was discussed with no resolution being reached. (Annexure “C”).
The applicant was aware that NATU was involved in negotiations with the MEC directly and it is because of this reason no formal grievance was lodged before April 2012.
It was only in March 2012 the applicant became aware of the dispute after he learnt that the negotiations between NATU and the MEC were not going anywhere. This can be evidenced further by the letter 15 March 2012 from Mr. Ngcobo wherein he advises that only now has he familiarized himself with the matter. (Annexure “D”). To date no further correspondence has been forthcoming.
On becoming aware of the dispute the applicant duly referred the matter to the ELRC for hearing. This was done on 3 April 2012 and can be evidenced by the referral form.
LENGTH OF DELAY
9. The applicant submits that there was no delay and that the referral was done timeously. That on becoming aware of the dispute on or about 15 March 2012 the applicant referred the matter to the ELRC on 3 April 2012 this is well within the time limits set by the ELRC and the Labour Relations Act.
10. Section 15(3) of ELRC constitution annexure B holds that in a case of promotions, appointments and transfers, there is no compulsion to invoke a grievance procedure. Thus the applicant was not forced to lodge a grievance.
11. Section 16.1.2(a) of ELRC constitution annexure B holds that in cases of unfair labour practices the dispute needs to be lodged within 90 days from the time that the act or omission constitution an unfair labour practice took place. Or at a later date within 90 days from the date the employee became aware of the dispute. The applicant only became aware of the dispute after he became aware that negotiations with the MEC were not going anywhere it is at this later date where the days should be counted from.
Section 191(1) (b) of the LRA also makes provision for a later date within 90 days from the date the employee became aware of the dispute. Again it is stressed that the applicant only became aware of the dispute after he became aware that negotiations with the MEC were not going anywhere it is at this later date where the days should be counted from.
Should the commissioner find that the applicant became aware of the dispute on or about April 2011 when the 2nd respondent was placed. The applicant submits that this is approximately 8 months late. An 8 month period in light of the circumstance seen above cannot be seen as unreasonable. Further in light of the reasoning put forward by the applicant as to why he referred the matter when he did it can be see that the applicant in no way sort to delay the process intentionally.
Section 19(11)(b) of the Labour Relations Act holds that condonation may be granted where good cause is shown. The applicant submits that he has shown good cause regarding why the matter was referred in April 2012.
REASONS FOR THE DELAY
15. Again the applicant submits that there was no delay and that the referral was done timeously. That on becoming aware of the dispute on or about 15 March 2012 the applicant referred the matter to the ELRC on 3 April 2012 this is well within the time limits set by the ELRC and the Labour Relations Act.
16. Should the commissioner find that the applicant became aware of the dispute on or about April 2011 when the 2nd respondent was placed. The applicant submits the reasons for the delay are as follows; the applicant was aware that his union, NATU was dealing with his matter and that NATU had sent correspondence to the manager of human resources further that applicant was informed that meeting had taken place between NATU and the MEC in an attempt to resolve his matter.
17. This was an ongoing process and the applicant was informed by NATU of the conclusions of the past meeting and the dates of the future meetings with the MEC. As far as the applicant was aware the matter was being handled. It is the applicant’s submission that this is why the matter was not referred before April 2012. It was only in March 2012 the applicant became aware of the dispute after he learnt that the negotiations between NATU and the MEC were not going anywhere.
18. The applicant did not believe it necessary to refer the matter as it was being dealt with directly with the MEC. It was only once it was realised that negotiations had failed that the applicant then referred the matter.
PROSPECT OF SUCCESS
The applicant submits there are good prospects of success in this matter. The 1st respondent did not follow the correct procedure.
As an interview process and the placing of displaced educators cannot be confused. The 1st respondent may not place an educator in a position when in fact that educator was not even part of the interview process.
Such displaced educator as the 2nd respondent may cannot be placed in an advertised position where the interview process has been completed and candidates recommended. The district office does not have the power to make such decisions.
There were never any proper negotiations around the placement of the second respondent over the second placed candidate the applicant. (Annexure “A”).
In light of these irregularities the applicant believes that he will be successful in both this application for condonation and the matter itself.
The applicant contends he has a right to administrative reasons as to why procedure was not followed and as to why the second respondent was placed when he was not even interviewed. Furthermore besides the obvious instability and resulting emotional turmoil the applicant will be financially prejudiced as he had applied for the position to save on travel expenses and be closer to home and his family.
The prejudice to the 1st respondent in minimal. The 1st respondent will be allowed the opportunity to set a precedent as to the correct procedures to be followed. Further the acceptable channels can be used to place the second respondent correctly.
The 2nd respondent will not be prejudiced he will continue to earn a salary and remain in the employ of the first respondent. Furthermore the 2ndrespondent will be placed using the correct procedures.
Furthermore, it is submitted that issues raised in this matter are of a serious nature which are required to be adjudicate, accordingly it is submitted that condonation should be granted in this matter.
In addition the applicant contends that an acceptable explanation for the delay if any has been put forward, and that the applicant has very reasonable prospects of success.
The first respondent served papers on the applicant on 8 October 2012 and not on 4 October 2012 as agreed to at the arbitration. The first respondent raises two jurisdictional issues that of condonation and incorrect referral.
The applicant will deal with both issues raised by the first respondent in these papers.
Jurisdictional issue – Condonation
At bullet three, the applicant contends that there is no evidence to support the claim that he did not lodge a grievance but pursued the matter through the office of the MEC. This is clear from Annexure “B” “C” “D” of the applicant’s condonation application that the matter was pursued at MEC level. The applicant is willing to testify to this fact.
Further at bullet three, the applicant denies that the first respondent was “denied the chance to resolve the grievance though recognized structures” unless the first respondent is suggesting that the ELRC is not a recognized structure then the applicant believes the first respondent has its chance to resolve this matter through a recognized structure.
At bullet five, the first respondent refers to annexure “A” in an attempt to suggest that the applicant Trade union accepted the placement of the second respondent. The applicant points out that nowhere on annexure “A” is the signature of the member accepting the minutes as complete or accurate.
Further at bullet five, the first respondent proposes “none of them challenged the process”.
What must be considered here is that this representative may not have had knowledge of the existing dispute raised with the MEC. In addition which process is the first respondent referring to? According to annexure “A” the purpose of the meeting was to “introduce” the Second respondent this implies that the process had been completed previously.
As referred to by the first respondent Num v West Holdings Gold Mining 1994(15) ILJ 610(LAC). Myburgh J holds at p613;
“Among the facts usually relevant are the degree of lateness, the explanation thereof, the prospects of success and the importance of the case. These facts are interrelated: they are not individually decisive .What is needed is an objective conspectus of all the facts”
It is clear from this is that no one fact is decisive but an overview or summary of all the fact is required in determining an application for condonation.
The applicant rejects the suggestion by the first respondent that no active steps were taken by him to have the matter resolved from the time of placement of the second respondent. The applicant was in contact with his union frequently and once advised that the dispute was not being dealt with appropriately the applicant referred that matter to the ELRC immediately
As referred to by the first respondent Section 6(3)(a) of the Employment of Educators Act states;
“Subject to paragraph (d), any appointment, promotion or transfer to any post on the educator establishment of a public school or a further education and training institution, may only be made on the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, and, if there are educators in the provincial department of education concerned who are in excess of the educator establishment of a public school or further education and training institution due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.”
The applicant advises that the SGB did not recommend the second respondent further the fact that the second respondent has been displaced should not prejudice the applicant.
The fact that 5 other principals have been placed in a similar fashion is irrelevant, nor does it prove the process is correct. If 5 public officials were corrupt this would not make it correct behavior for public officials.
It is unclear how the entertaining this dispute could threaten the stabilities of three schools. The second respondent was displaced therefore his original school and the placement of a permanent principal is immaterial. The school would not be affected as the second respondent would not be able to return there. Once the correct process is followed there would be a vacant post (As per HRM 87 of 2011) into which a displaced educator can be placed.
The applicant submits that the Union did not accept the second respondent this is clear from correspondence and meeting held with the MEC. In addition when all the facts are considered the applicant has prospects of success, valid reason for the delay if there is in fact a delay and believes strongly that condonation should be granted.
Jurisdictional issue – Incorrect Referral
The applicant agrees that the Head of department is the final decision maker this does not mean that the Head may appoint whoever he decides. Process and norms need still be followed. The norm in this situation is that the second placed candidate would be offered the position.
Section 6(3)(a) and surrounding issues have been dealt with above in paragraph 9 and 10.
In response to annexure “C” submitted by the department, used to suggest that the second respondent’s placement was accepted. The applicant points out that that this was not a meeting to discuss the appointment of the second respondent but rather to place him as the decision had previously been made. All that annexure “C” confirms is that all parties were present when the second respondent was appointed and that “in this process of appointing a new principal” thing went accordingly.
At no point does annexure “C” mention all parties accepting the appointment or that this was even discussed rather that the purpose of the meeting was to appoint a new principal and this was done.
In response to annexure “D” HRM Circular 87 of 2011. The applicant concedes that “displaced educators” are included, but so are all other educators. Paragraph 4.1.1 of the same circular holds under objectives;
“to provide a fair and transparent basis for the staffing of schools in 2012”
The process followed in the current circumstances cannot be considered fair or transparent.
The applicant is unaware of the post ever being withdrawn from the bulletin or the MEC instructing the second respondent to be placed in such circumstances, further the applicant contends this did not occur and if it did it was post facto.
The applicant asserts that this is an unfair labour practice. In addition that he was not late in referring the matter. Should it be found that the applicant was in fact late the applicant contends that this was reasonable considering all relevant facts and that condonation should be granted.
(a)Subject to paragraph (d), any appointment, promotion or transfer to any post on the educator establishment of a public school or a further education and training institution, may only be made on the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, and, if there are educators in the provincial department of education concerned who are in excess of the educator establishment of a public school or further education and training institution due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.
FIRST RESPONDENT’S (EMPLOYER’S) SUBMISSION
The dispute referred, requires that the Commissioner should determine whether there was an unfair labour practice or not; however the First Respondent is of the view that the time limits with respect to referral of the matter to the ELRC were not complied with and would like to raise a Jurisdiction issue that the matter should not be heard because of the following factors:-
DEGREE OF LATENESS
A referral of an alleged unfair labour practice must, in terms of the Labour Relations Act Section 191 (b) (ii) be made within:
“90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence”.
The Applicant claims that this dispute arose on the 15th of March 2012 according to the referral; however the First Respondent would like to dispute that by stating as follows:
When Post 1569 of Magumbomane Primary School was advertised in HRM 37 of 2010, there was a management plan that indicated that promotees were to assume duty on the 17th January 2011. The first preferred candidate declined the post in March 2011. The Applicant was aware of this information.
It remains a mystery as to why he is so interested that the second candidate should be appointed; co-incidentally he was the second preferred candidate. The question is how did he know that because all panelists signed a declaration of confidentiality form?
The Second Respondent was placed at Magumbomane as principal in April 2011 and the Applicant is not denying it. He further states that he did not lodge a grievance, but pursued the matter through the office of the MEC (no evidence to that effect), Mr Hlela and Mr Ngcobo. It is worth indicating that even though our ELRC Resolution 1 of 2006, grievants are not compelled to invoke a grievance procedure before they refer the matter for resolution through the ELRC dispute resolution mechanism, but this was meant to expedite the resolution of the dispute thus avoiding unnecessary delays. At District, the First Respondent has a grievance resolution committee which resolves grievances at local level expeditiously because they are in touch with all the matters of the District. But the Applicant decided not to use this mechanism agreed upon at chamber but elected to consult Head Office officials directly (who do not have a mandate to resolve grievances. There were bound to be delays in responding rather than referring the matter to the District Grievance Committee. If their delay of referral was as a result of following the internal grievance procedure then the delay would be justified; but they denied the Respondent the chance to resolve the grievance through recognized structures.
The allegation that NATU had several meetings with the MEC are unfounded because they indicate that their first meeting was on 7 May 2010 which is the date a year before the placement of the Second Respondent and this is one of the placements that were initiated directly by the MEC not the Head of Department. Probably these meetings referred to were for other issues.
The Circuit Manager, Mr Mthethwa, of the school where the post is, had a meeting on the 6th of April 2011 with the Applicant’s Trade Union representative and others about the placement of the Second Respondent into the position of the principal of Magumbomane Primary School (Annexure A). None of them challenged the process.
Therefore, on a balance of probabilities, the Applicant knew in 2011 that the Second Respondent assumed duties at Magumbomane Primary School in April 2011.
The time delay is extremely long almost close to a year. In the matter of Num v West Holdings Gold Mining 1994 (15) ILJ 610 (LAC), it was ruled that a Commissioner may decline condonation on these grounds alone.
REASONS FOR THE LATENESS
The Applicant has failed even to apply for condonation thereby depriving parties a right to know as to why he referred this matter this late. Instead he included correspondence written by the General Manager: HRM (Mr Ngcobo) to his Trade Union. If the Trade Union wanted to exhaust the Internal Grievance Procedure, he ought to have followed the procedure detailed on the bulletin paragraph 21.
This correspondence was in response to a conversation that the General Manager had with the Deputy President of NATU; besides that there is no active steps taken by him to have the matter resolved from the date of the placement of the Second Respondent. If it is the Trade Union that advised him not to refer soon enough then that (negligence of the representative) would not justify late referral as it was decided in the matter of Xayiya v African National Congress (2000) 4 BLLR 477 (LC).
PROSPECTS OF SUCCESS
The decision not to appoint is not unfair per se considering that the best candidate for the post had declined the post and the decision to appoint the next available candidate had not been taken by the Head of the Department who is the final decision maker.
The appointment of the Second Respondent was in terms of Chapter 3: Section 6 (3)(a) of the Employment of Educators’ Act 76 of 1998 as amended because he had been a displaced principal since 2002 (Annexure A). Furthermore, 5 other displaced principals within the District were placed through a similar process.
The School Governing Body was consulted and they did not object to the placement of the Second Respondent. When he was introduced to the stakeholders at school all Trade Unions were present and they approved the Second Respondent’s placement.
PREJUDICE TO THE OTHER PARTY
The First Respondent has already permanently placed another principal at the school that the Second Respondent was previously; even the Applicant is currently occupying a post that is equivalent to the one he has disputed and it is within the same District, entertaining this dispute might threaten the stability of three schools.
The First Respondent has finalized a process of placing all displaced educators including promotional post holders and has done away with displacements; therefore, having another previously displaced educator (Second Respondent) brought back into the list will seriously be a draw back for the First Respondent.
OTHER RELEVANT FACTORS
The Second Respondent has been since 2002 paid a salary of the principal when he has been rendering service as Post Level 1 educator. For the First Respondent this move was a break through.
SECOND RESPONDENT’S (APPOINTEE) SUBMISSION
THE SECOND RESPONDENT DID NOT MAKE SUBMISSIONS
ISSUE TO BE DECIDED
I am to determine the following issues:
8.1. Whether the applicant should be granted condonation for the late filing of his dispute. Should the application be granted then I must determine the future conduct of the proceedings.
8.2. Should I refuse the application then I must determine the status of the Second Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
The applicant believes that there is no need for the condonation application because it had pursued the matter from inception until the lodgment on the 3 April 2012.
The respondent contends that the application be refused and the Second Respondent’s appointment be confirmed.
ANALYSIS OF EVIDENCE AND ARGUMENT
I now deal with the application for condonation. Commissioner A Pillay
ruled that the applicant had to apply for condonation and the applicant had
not challenged his determination. As such I am required to deal with the
application for condonation.
The papers before me include the application for condonation, and opposing papers. The dispute has been referred as a dispute relating to unfair labour practice dealing with promotion (s 186(2) (a) which allegedly arose according to the applicant in April 2012. The only statutory provision in the LRA that refers to unfair labour practice disputes is section 186 (2) (a) which determined that Bargaining Councils such as the ELRC may arbitrate unfair labour practice disputes relating to promotion and the dispute must be referred to the Council in terms of Section 16.1.2(a) of ELRC constitution annexure B within 90 days from the time that the act or omission constitution an unfair labour practice took place. Or at a later date within 90 days from the date the employee became aware of the dispute. l. This means that if the dispute was referred late it cannot be heard by the ELRC unless condonation is granted.
Applicable legal principles in Condonation applications
Provided that good cause is shown, this Council may permit an employee to refer a dispute after the time limits provided for in the ELRC Constitution. In order to determine whether good cause is shown factors such as the degree of lateness, the reasons for the lateness, the prospects of success, any prejudice to the other party as well as any other relevant factors are taken into account. All these factors are interrelated and not individually decisive.
However if there are no prospects of success there is no purpose in granting the condonation application. Condonation will also generally not be granted in absence of an acceptable explanation for the delay, regardless of good prospects of success of success on the merits.
The degree of lateness
It is generally accepted that the longer the delay, the less the prospects are that condonation will be granted. The dispute was referred approximately ONE (1) years late which is indeed an excessive delay and the next enquiry is whether the applicant has made out a case for the delay.
The applicant contends that his union had approached the Department structures and the MEC to resolve the matter.
The applicant’s explanation is challenged by the respondent.
If there was a short period of delay it would lean in favour of the applicant but her explanation for the delay is unacceptable.
The applicant’s union must be aware of the collective agreements and promotion manuals used in promotion matters and the lodgment of disputes.
It is obliged to follow the procedures contained to lodge disputes and that promotion disputes are first determined by the District Grievance Committees.
Further the applicant’s union representative Ms Nzuza was present at the induction of the Second Respondent and ought to protested at that occasion and by not doing so ought to have alerted the applicant and her union of the appointment and as such the date that the union and by inference the applicant became aware of the appointment of the Second Respondent was on the 6 April 2011.
Arising from the above the dispute is correctly argued by the First Respondent to be approximately a year late.
Therefore I am not satisfied with the applicant’s explanation for the delay in pursuing his matter in a more diligent manner.
The prospects of success
16. In considering prospects of success in a condonation application, it is not necessary for an applicant to prove on a balance of probabilities that he/she will in fact be successful in the main action. What is required is that the applicant must present evidence to show that the case which is sought to be advanced has some merit. The test is not that that the applicant will definitely succeed in the main action on the merits, but that he/she could succeed. It is a E preliminary and not final assessment of the merits of an applicant's case.
17. As previously recorded condonation will also generally not be granted in absence of an acceptable explanation for the delay, regardless of good prospects of success of success on the merits.
18. I am therefore not satisfied that a satisfactory explanation was provided for the unacceptably long delay in referring the dispute.
Potential Prejudice to respondent
19. There are good policy considerations why parliament imposed time limits in referring employment disputes and why the parties to the ELRC Constitution did the same. Labour disputes need to be resolved as soon as possible and cannot be permitted to fester for years before they are referred for conciliation and arbitration.
In any event the amendment to the Employment of Educator’s Act affords wider powers to the Education Department’s Head of Department in the appointment of educators to promotion posts and the recommended appointments need not come from the candidates that attended the interviews or the manner in which they were ranked or recommended. The only entity that may appeal against the Head of Department’s decision is the School Governing Body (SGB) and this must be done within one month of the appointment. In this case the SGB supported the appointment of the Second Respondent and went further to regard him as a “home boy”.
As a consequence thereof I determine that the employer had correctly appointed the Second Respondent and the appointment is confirmed.
20. Having regard to all the relevant factors I am not satisfied that good cause has been shown for condonation. Accordingly the application for condonation is refused.
Accordingly, I make to following order:
21.1. The application for condonation is refused.
21.2. The application is dismissed.
21.3. The appointment of the Second Respondent Mr N P Zulu as principal of Magumbomane Primary School is confirmed.
COMISSIONER ANAND DORASAMY