Case Number: PSES 653-653/11/12 WC
Province: Western Cape
Applicant: Denise Suzette Hendricks
Respondent: Department of Education, Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Cape Town
Award Date: 7 October 2012
Arbitrator: Bella Goldman
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CAPE TOWN
Case No PSES 653-653/11/12WC
In the matter between
Denise Suzette Hendricks Applicant
Department of Education Western Cape Respondent
ARBITRATOR: Bella Goldman
HEARD: 23 May, 25 July, 26 July and 06 September 2012
DELIVERED: 07 October 2012
DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held at the Cape Town offices of the Labour Relations Department of the respondent on 23 May, 25, 26 July and 06 September 2012. Advocate David Charles instructed by Sydney Pretorius Attorney represented the applicant. Ms Lauren Randall, Labour Relations Officer represented the respondent. The proceedings were recorded.
ISSUE TO BE DECIDED
2. I have to decide whether or not the applicant was subjected to an unfair labour practice in relation to a promotion in terms of the Labour Relations Act 1995 as amended (LRA) when she was not appointed to the post of Deputy Principal: post number 1705/2009 at the Willemvallei Primary School in Porterville for which she applied in April 2009 and where she was employed as Head of Department..
BACKGROUND TO THE ISSUE
3. The applicant applied for the post in question, she was shortlisted and interviewed in October 2009. She was the nominated in third place. The first preferred candidate was Ms Elizabeth Swart. The applicant referred a grievance alleging irregularities in the process. The Department agreed that the short listing and interview processing was irregular and that it should be repeated using a new panel from the SGB. The interviews were held on 13 April 2010, with a view to filling the position as from 1 July 2010, this time the applicant was the preferred candidate and Elizabeth Swart was not short listed. Swart unsuccessfully referred an unfair labour practice relating to a promotion dispute to the Council which was heard in November 2010.
4. The interviewing panel’s decision to appoint the applicant as preferred candidate had to be ratified by the whole of the SGB who refused to do so, on the basis that the second process had been irregular. On 20 July 2011, the respondent informed the school that the post had to be re-advertised. On 6 September 2011 the SGB changed its mind and decided to ratify the nomination of the applicant for the post; however the respondent decided that it was too late for the SGB to change its mind and the post was re-advertised under post number 1508 on 2 January 2012. The applicant successfully applied to the Labour Court for a moratorium on the filling of that post pending the outcome of this dispute, which was referred in February 2012. The applicant is seeking to be appointed to the post retrospectively as from 1 July 2010.
SURVEY OF THE EVIDENCE AND ARGUMENT
5. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
6. The parties submitted the following bundles of documents in evidence which were agreed as being what they purported to be: The applicant’s bundles were marked ‘A’ and ‘A2’ and were numbered 1 to 28, the second bundle was the transcript of the arbitration hearing of Elizabeth Swart and the Department held in November 2010. The respondent’s bundle was marked ’B’ and was numbered 1 to 51.
The applicant Denise Suzette Hendricks gave evidence under oath. The following is a summary of her testimony:
7. The applicant has 40 years teaching experience. She applied for the post no 1705 when it was first advertised in 2009 and was shortlisted and interviewed. The applicant was the third preferred candidate. The applicant believed the process to have been unfair and referred a grievance in this regard. The outcome of the grievance was that the process would be repeated using the same pool of candidates but a new panel would be used to do the short listing and interviewing. This panel would be made up of 60% SGB members and 40% Department officials.
8. Interviews for the second process were conducted in April 2010 and this time the applicant was the preferred candidate. Elizabeth Swart was unhappy with the results of the process and referred an unfair labour practice dispute to the Council and in November 2010 the Council confirmed that no unfair labour practice was committed against Swart. Mr J Swart, Chairperson of the SGB and Mr Dirk member of the SGB testified that second process was flawed.
9. Thereafter the full SGB would not ratify the interviewing panel’s decision re the 2nd process where the applicant was the preferred candidate and the Department ordered in July 2011 that the post be re-advertised. Meanwhile a second Deputy Principal post became vacant and was advertised, the applicant decided not to apply for it as she speculated that the preferred candidate would be Elizabeth Swart and she said that what transpired proved that she was right. The applicant heard that Elizabeth Swart applied for that Deputy Principal post, and was nominated as the preferred candidate by the SGB between July and September 2011. The applicant stated that with Elizabeth Swart now in a position of Deputy Principal, this now paved the way for the following event which was that the SGB then changed its mind on 06 September 2011 and agreed to support the nomination of the applicant as the preferred candidate for the post in question. However the respondent had already in July 2011 decided to re advertise the position and would not change its mind.
10. In a letter dated 2 June 2011 the Chairperson of the SGB, Mr J Swart wrote to Mr Joubert, Circuit Manager and Director of the District Office who was present at the interviews of the Department stating that that the full SGB would not accept the nomination of the SGB committee on the basis that:
· No allocation of points were attached;
· No interview questions and answers of candidates were provided;
· The persons who investigated the matter were part of the process and
· It came to the attention of the SGB that the nominated candidate was already congratulated.
11. The applicant believed that the SGB an in particular Swart and Dirk were biased and were determined that Elizabeth Swart be accommodated as Deputy Principal before she could be. The applicant is seeking to be appointed to the post in question retrospectively as from 1 July 2010 the date she would have been appointed were it not for the improper conduct of the SGB.
12. The basis of her bias is inter alia that they testified on behalf of Elizabeth Swart when she referred an unfair labour practice when she was not short listed in the second process and also the applicant believed that they were behind the SGB not supporting her nomination for the position in the second process and one of them Dirk, Chairperson of the SGB walked out of the process when Swart was not short listed in the second process.
The respondent called one witness, Ivan Carollus, Director: Human Resources Administration, who affirmed that his evidence would be the truth. The following is a summary of his testimony:
13. The witness stated that he has the delegated powers of the HOD and he referred to the relevant legislation, The Employment of Educator’s Act 1998 section 6 which gives the HOD the power to: consider the recommendation of an SGB for a particular appointment. The witness stated that section 6(3) (g) (iii) gave him the power to re advertise the post should he decline their recommendation.
14. Further the witness referred to section 6(3)(l) which states that an SGB must make a recommendation within two months from the date it was requested to do so failing which subject to section 6(3)(g) the HOD must make an appointment without such a recommendation.
15. He stated that the SGB should have after the interviewing committee had completed the process made a recommendation within two months. In this instance they refused to do so and he referred to a letter from the Chairperson of the SGB Mr Swart to Mr Joubert dated 02 June 2010 the contents of which were outlined above.
16. The witness did not dispute that in this process that the interviewing committee was made up of 40% Departmental representatives and 60% SGB members and that Joubert was the appointed gatekeeper. He stated that that he never asked Joubert or the Departmental representatives whether there were any irregularities in the process. He confirmed that Joubert requested the SGB to ratify the applicant’s nomination to the post as the preferred candidate on 23 February 2011. On 25 March 2011 the SGB wanted the post to be re advertised.
17. The witness decided in June 2011 to re advertise the post. On 19 August 2011 Joubert asked SGB to again ratify applicant’s appointment and the SGB changed its mind on 6 September 2011 and agreed to do so but the witness stated that the decision had already been made to re advertise the post and the Department would not go back on its decision.
18. The following was put to the witness in cross examination:
19. The witness was asked whether the Department investigated the SGB allegations of irregularities into the second process; he stated it did not. It was put to the witness that the second process had already been tested by the arbitration of Elizabeth Swart when she referred an unfair labour practise in respect of her not being short listed, the witness stated that this was only in respect of the short listing process and did not deal with the interviewing process. The witness was asked why he did not question Joubert re the fairness of the second process, the witness stated that Joubert should have reported to him and the witness said he could pick up irregularities with the second process, he noted that two members of the interviewing committee had walked out and that the whole SGB were not happy with the process. It was put to the witness that the reason the SGB changed its mind on 6 September 2011 was that Swart had by this time been appointed to the 2nd Deputy Principal post. The witness stated that this was speculation.
20. The witness stated that he could pick up possible irregularities with the 2nd process in he noted that two members of the interviewing committee had walked out and that the whole SGB were not happy with the process.
21. The respondent intended to call another witness to rebut the applicant’s submission that the SGB was biased. The witness was Mr Swart who at the time was the Chairperson of the SGB. The purpose of his evidence would have been to rebut the applicant’s evidence that the SGB was biased and for him to explain the SGB’s decision not to ratify the SGB committee’s decision to nominate the applicant being the preferred candidate for the position and then to explain why the SGB changed its mind in September 2011 and then wanted to support the SGB committee’s decision to nominate the applicant for the post.
22. The matter was set down for a further day to hear Mr Swart. Ms Randall the respondent’s representative kept phoning the witness that morning. She reported that for about an hour the witness’s phone was off; eventually when she managed to get hold of him Mr Swart said he was on his way and would be at the hearing in about 90 minutes. Mr Swart never arrived at the hearing and thereafter his phone was switched off. The applicant gave hearsay evidence that she had been told that Mr Swart would not attend the hearing.
23. The parties submitted written argument in support of their respective cases which I will refer to where necessary in my analyses.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
24. In an unfair labour practice case the onus is on the applicant to prove her case based on a balance of probabilities. The applicant’s case in this matter is that an unfair labour practice relating to promotion was committed against her in that the decision not to appoint her was based on bias.
25. The applicant’s case is that the process of short listing and interviewing for the post of Deputy Principal at Willemsvallei Primary School which took place in 2010 in terms of which the applicant was the preferred candidate was fair and that she should have been appointed to the post with effect from 1 June 2010 and the respondent acted unfairly by not appointing her to that post from that date and that the decision not to appoint her was based on the bias against her of the SGB.
26. It was common cause that the first process conducted in 2009 in terms of which the applicant was the third nominee was found to be irregular. In terms of that process, Ms Elizabeth Swart was found to be the preferred candidate. The first process was redone and in terms of the second process Ms Swart was not short listed and unsuccessfully referred an unfair labour practice dispute in this regard. The award in respect of this case confirmed that the process, at least up to the short listing process was fair.
27. I note that one of the factors that Mr Carollus took into account in his decision to re advertise was two members of the short listing committee walked out of the process. One of the two members being Mr Swart. Given that this process had already been the subject of an arbitration process that had been found to be fair up to at least the short listing process this should not have influenced his decision.
28. In terms of case law this referral can be considered to be premature and I refer to the case of Department of Justice v CCMA & others (2004) 25 ILJ 248 (LAC). In this case the post of Chief State Law Advisor was advertised. When the post was advertised, the applicant employee, Bruwer, A Deputy Chief State Law Advisor, applied for the post. Bruwer and three other short listed candidates were interviewed by the selection committee, which decided it could not recommend any of the candidates for appointment and suggested that the Minister of Justice re-advertise the post. The post was advertised for the second time and the new candidates were perceived to be weaker than those who had already been interviewed. Mr W, one of the candidates and Special Adviser to the Minister, did not meet the requirements of having an LLB degree and being an advocate and for these reasons only the selection committee considered turning down his application. It however recommended that the Minister relax these two requirements to enable Mr W to be appointed on contract until the post could be permanently filled. The Minister approved the appointment of Mr W on a fixed term contract for 12 months which was extended for a further 12 months. Mr Bruwer represented by the PSA dissatisfied with not having been appointed applied for protective promotion. When he received no response he referred an unfair labour practice dispute to the CCMA. The CCMA found in his favour and the Department was ordered to pay him R50, 000.00 as compensation. The Department took the matter on appeal which upheld the CCMA’s decision. The matter was then referred to the Labour Appeal Court.
29. Zondo JP upheld the Appeal and stated that the PSA and Mr Bruwer need to show that the Department had made a final decision that Bruwer would not be appointed and only then could the question arise whether the Department acted unfairly. He used the analogy of unfair dismissals in that the dismissal must be proved before an unfair dismissal can occur. An employee who complains that the employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the conduct or enquiry into whether the conduct was unfair can then begin. This is not one of those cases such as disputes relating to unfair discrimination …. where if the employee proves the conduct complained of, then the legislation then requires the employer to prove that such conduct was fair or lawful and, if he cannot prove that, unfairness is established.
30. I believe that this case can be distinguished from the above. In this case following the irregularities that took place with regard to the first process the respondent put mechanisms in place to ensure that the second process would take place fairly. The committee that would make the decision as to who would be selected as the preferred candidate would be made up of 40% Departmental representatives and 60% SGB members plus a Departmental representative, Mr Joubert was appointed as gatekeeper. The short listing and interviewing committee was known as the Independent Nomination Committee (INC).
31. When the SGB was asked to ratify the decision of the INC it refused to do so based on the fact that irregularities took place in the second process and kept so doing until 6 September 2011 when it changed its mind without giving a reason for the change of mind. The very purpose of placing the Departmental representative on the INC was to prevent this and to report thereto should irregularities take place.
32. In September 2011 the SGB changed it mind and now wanted to support the nomination of the applicant. The applicant attributed the change of mind to bias of the SGB which for her was substantiated by the Elizabeth Swart saga the fact that Elizabeth Swart in August 2011 having applied for a 2nd Deputy Principal Post at the same school was informed that she was successful in her application. However by this time Mr Carollus using his delegated powers had made the decision to re advertise the post which he would not retract.
33. Mr Carollus referred to his delegated statutory powers which allowed him to do what he did as the SGB did not nominate a candidate within the two month stipulated time period and on the basis that the SGB perceived the process to be irregular. Mr Carollus referred to the fact that two members of the interviewing committee walked out of the process, however this was from the selection process which was not relevant to the selection process. It should be noted that one of the persons who walked out of the process was Mr Swart Chairperson of the SGB and who was supposed to testify at the arbitration hearing on 6 September 2012.
34. Given the irregularities of the first process where no Departmental representative was present. It was decided that the new process would include a Departmental representatives and a gatekeeper, Mr Joubert and that the Committee would be made up of 60% SGB members and 40% Departmental representatives. The purpose of this was to ensure that no irregularities took place in the 2nd process. If irregularities were reported to Mr Carollus then the first place of call as far as he was concerned should have been for him to ask Mr Joubert for his comments. Otherwise what the point of instigating such a process? The very fact that Joubert kept asking the SGB to ratify of the 2nd process implied that he found no irregularities in the process.
35. It made no sense to me that the respondent having found that the first process was irregular and that the irregularity was as a result of the Chairpersons actions Mr Swart’s (Chairperson) in the interviewing process put in place a number of measures to ensure that no further irregularities would take place in the 2nd process made no use of these measures when allegations of irregularities were alleged. The measures were to appoint Departmental representatives with voting rights and a gate keeper. It is trite that the interests of the learns are paramount and Mr Carollus in his decision to re advertise appeared not to consider that the school has been without a permanently appointed Deputy Principal for a period of three years.
36. No evidence was led by the respondent to indicate that the second process was unfair or irregular in any way. Mr Joubert being the appointed gatekeeper would have been the obvious witness to call. Reference was made to Mr Swart not appearing to give evidence on 6 September 2012 and his conduct with respect thereto. He was coming to give evidence on that day with respect to his lack of biasness against the applicant and alleged irregularities in terms of the second process and I assume he may have shed light as why the SGB changed it mind on 6 September 2011 and was now prepared to appoint the applicant to the post in question.
37. There was no evidence to lead the arbitration hearing to suppose that had the applicant been nominated for the post following the second process Mr Carollus would not have approved the nomination
38. Given the above which in summary is:
· There was no evidence of any irregularity in terms of the second process;
· Measures were put in place by the respondent to ensure that second process were fair and those measures were not used by the respondent when allegations of irregularities were raised.
· In the absence of any evidence to the contrary the applicant’s speculation as to why the SGB changed it mind in September 2011 appears to be probable
· Applicant’s allegations of biasness appear to be probable. Mr Swart was found to have acted irregularly in first process, in that he marked Ms Swart too highly in first process, he gave evidence for Ms Swart at her arbitration hearing, he was Chairperson of SGB who refused to ratify applicant’s appointment and refused to testify at this arbitration hearing despite assuring hearing that he would be attending hearing on the same day. He walked out of the INC when at the selection stage probably as a result of Ms Swart not being short listed. On this basis it is probable that the SGB decision not to nominate the applicant for the post of Deputy Principal for the second process was based on bias.
39. This case can be distinguished from the Department of Justice v CCMA & others based on the fact that biasness of the SGB has been proved on a balance of probabilities in terms of the evidence before me which I find is akin to proving discrimination as per Zondo JP’s judgment and the respondent has not thereafter been able to prove that the process was fair. The applicant is acting in the post and it was not disputed that had the applicant been nominated for the post after the second process she would have been appointed to the post. I thus find that the applicant has proved her case which is that the respondent acted unfairly by not appointing her to the position of Deputy Principal in that its decision was based on biasness against her.
40. I find that the respondent committed an unfair labour practice against the applicant by not appointing her to the position of Deputy Principal at Willemsvallei Primary School.
41. The applicant is to be appointed to the post as from 1 January 2013.