Case Number: PSES 179-12/13 KZN
Applicant: NATU obo Mthimkhulu J B
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 21 November 2012
Arbitrator: AS Dorasamy
IN THE ARBITRATION
CASE NO.: PSES 179-12/13 KZN
IN THE MATTER BETWEEN :-
NATU OBO MTHIMKHULU J B APPLICANT
DEPARTMENT OF EDUCATION-KZN 1ST RESPONDENT
SADTU O B O MR NDHLOVU S N 2ND RESPONDENT
DATE : 12 NOVEMBER 2012
TIME : 10H00
VENUE : D O E -NEWCASTLE
ARBITRATOR : A S DORASAMY
ATTENDANCE/S : APPLICANT
MR J A ERASMUS
APPLICANT - ABSENT
MR B N MDLALOSE
MR G V KHUMALO (SADTU)
MR S N NDHLOVU
The arbitration proceedings commenced at 10h00 on the 12 November 2012.
HEARING AND REPRESENTATION
2. Mr J A Erasmus of NATU represented the applicant and Mr B N Mdlalose represented the first respondent and the second respondent was represented by Mr G V Khumalo of SADTU. The applicant did not attend.
After discussing the matter the parties agreed as follows:
No oral evidence will be tendered.
The First respondent /employer will serve its Heads of Arguments on the Point in Limine and Merits on the commissioner and applicant on or before 15 NOVEMBER2012
The Second respondent /joinder will serve its Heads of Arguments on the Point in Limine and Merits on the commissioner and applicant and First Respondent on or before 16 NOVEMBER 2012
The applicant/ employee will serve its Heads of Arguments (opposing) on the commissioner and respondents on or before 23 NOVEMBER 2012.
The applicant made submissions before the 23 November 2012.
The award will be rendered thereafter.
3. All documents referred to had been made available to the parties at arbitration. The marking of the documents was standardised with the parties at the arbitration.
4. The applicant applied for the post of principal, post number 198 at Thubelihle High School.
5. The first process was completed but a grievance was lodged. Thereafter the Interview Committee (IC) was appointed by the Department. Thereafter the process was completed and Mr Ndhlovu was appointed to the post.
6. The applicant seeks the setting aside of the appointment and that the interviews must start afresh as the structure that conducted the interviews was not a legitimate structure.
7. The First Respondents seek confirmation of the appointment.
8. APPLICANT’S (EMPLOYER) HEADS OF ARGUMENTS
Mr J M Mthimkhulu applied for a position of a principal of Thubelihle High School which was advertised as post no. 198 in HRM 59 of 2010.
In or around the beginning of 2011 he lodged a grievance citing failure by the School Governing Body (SGB) to make a recommendation to the Head of Department (HOD) for the appointment of a suitable candidate for the same post, vide annexure A. He prayed that the powers to recommend a suitable candidate be taken away from the SGB as stipulated in Section 25 (1) of the South African Schools Act 84 of 1996 as amended.
His claims were supported by a letter written by the SGB (to the Department), vide annexure B. In the letter the SGB conceded that there were irregularities that occurred during the selection process and conceded that they were having difficulties in recommending a suitable candidate
The District Grievance Committee ruled in favour of Mr Mthimkhulu and ordered that the process be undertaken by an independent panel from the interviews stage.
The Department consulted the SGB on the 20th June 2011, in a meeting held at Masihambisane Primary School, to indicate that the Department was to take over the process. The majority members of the SGB agreed to that especially because they were divided over the issue.
Indeed the matter was taken over by the Department. The District crafted a recommendation to the head of Department for an appointment of an independent interview committee. The approval by the HOD was granted and the circuit manager was tasked to facilitate the process.
The interview committee members were all appointed, in writing, to serve on the committee. Both SADTU and NATU unions were present at the meetings of the interview committee. The interviews proceeded fairly and not a single interviewee suffered prejudice. That was confirmed by both unions’ representatives by appending their signatures on the EC 5 document.
After the conclusion of this process, Mr Mthimkhulu lodged another grievance, vide annexure C. In his grievance referral, he indicated that the structure which interviewed him was not composed of SGB members, a certain applicant was a scoring member of the Interview Committee and that the venue of the interviews was outside the school premises.
The District Grievance Committee dismissed his grievance, vide annexure D.
WAS THE INTERVIEW COMMITTEE PROPERLY CONSTITUTED?
In the referral form, Mr Mthimkhulu alleges that the interview committee that conducted the selection and recruitment process in respect of post no. 198 was not legitimate. We must place it on record that the members of the interview committee (IC) that conducted the short listing and interviews for post 198 were appointed by the Head of Department and or his delegate.
The appointment of such a committee was approved after the Department had consulted the school governing body (SGB) in the meeting held on 20 June 2011.
The so called applicant who was allegedly active in the scoring process was not there. Mr Mthimkhulu must have heard that Mr Vilakazi was part of the I C when it (I C) dealt with the applications for Msihambisane Primary School. Vilakazi was released before the scoring process could commence after it was found that his application was part of those that were to be scored. Even on the EC 5 document the name of Vilakazi is not there
In addition, it was the wish of Mr Mthimkhulu to have the selection process undertaken by an independent panel if one considers the relief sought in terms of annexure A and the reasons thereof were legitimate. That being the case, we believe strongly that the IC was properly constituted.
THE FAIRNESS OF THE SELECTION PROCESS
It has been determined that the IC that conducted the selection process in respect if post 198 was properly constituted. That being settled it would be prudent that we examine the fairness of the process undertaken by the Interview Committee.
It is not enough for Mr Mthimkhulu to complain about the structure, he also has to prove that the existence of the structure prejudiced his candidature. To this end evidence is in abundance that the IC ran a free and fair selection process as it is evidenced by the signatures of all union representatives that were appended on the EC 5.
It must be mentioned that the role of union observers in the selection process is to ensure that their members are treated fairly in all respect. We have witnessed in a number of instances where union representatives have refused to sign EC 5 to demonstrate their dissatisfaction with the selection process. This appears not to be the case with Mr Mthimkhulu.
To this end it would appear that the appointment of the second responded, Mr Ndhlovu, was both substantively and procedurally fair.
Though Mr Mthimkhulu has not put it categorically, it would not be farfetched to conclude that he is declaring a dispute because he believed that he was supposed to be appointed in the position of the principal of Thubelihle High School.
In this regard I want to cite part of paragraph 48 of the Arbitration Award by Adv. DP van Tonder in the ELRC case no PSES 375-10/11 WC. Adv. Van Tonder remarked that “Educators must understand that the discretion to promote and appoint falls within the managerial prerogative of the employer and that in the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, arbitrators will not interfere with the exercise of the discretion.
This even more applicable in the public education sector where the best interests of the learners are of paramount interest. In order for an educator to succeed in an alleged unfair promotion dispute before the ELRC the educator, in addition to proving irregularities, she /he must also demonstrate that but for that irregularity, he would have been appointed or at the very least that he stood a realistic chance of being appointed by being one best candidates”.
This is not the case with Mr Mthimkhulu as he appears to be the least preferred candidate (in terms of EC 5) for appointment to post number 198 advertised in HRM 59 of 2010. We pray that Mthimkhulu’s dispute be dismissed.
9. RESPONDENT’S (EMPLOYEE) HEADS OF ARGUMENTS
In the event that the commissioner in the point in limine rules that the ELRC does have jurisdiction to hear this matter then these are the applicant’s submissions.
The applicant as per his referral form is challenging the legitimacy of the interview committee(IC)
The 1st respondent has placed on record that the IC was appointed by the Head of Department ,that the applicant consented to the IC bring constituted outside of the School Governing Body (SGB) as per a settlement agreement ( annexure “A”) further that this formation favoured the applicant.
The applicant is not challenging who appointed the IC or the fact that the IC was constituted outside of the SGB. Furthermore fact that there is a settlement agreement in place does not in any way eliminate the applicant’s right to grieve against the interview process.
The applicant lodge a grievance against the interview process which was dismissed on or about 17 April 2012 (annexure “B”). The applicant challenged a number of irregularities including the presence of a Mr. Vilakazi who was a member of the IC as well as an applicant for the post.
HRM circular 37 of 2010 paragraph 9 holds that “members of the interview committee or governing body must recuse themselves for the duration of the discussion and decision making on any issue in which the members have personal interest” Mr. Vilakazi as an applicant would according to the above had to have been removed for the process due to having a personal interest in the outcome.
This was clearly not done as in annexure “B” the grievance committee admits Mr. Vilakazi was present in the IC. ( Annexure “C”)
HRM circular 37 of 2010 paragraph 10 holds that personal information of the applicant is confidential further that all members of the IC are to sign a declaration of confidentiality. (Annexure “C”). Certainly it would not be just for an applicant to a post to be on the IC and therefore have access to all the personal information of the other applicants.
HRM circular 37 of 2010 paragraph 12 holds that the criteria used by the IC in short listing “must be fair, non discriminatory and in keeping with the Constitution of the country” (Annexure “D”). The applicant submits that the short listing process could not have been fair and non discriminatory as a member of the IC was in addition an applicant to the post.
The 1st respondent states that the structure and process followed by the IC was fair and alleges that the applicant was in no way prejudiced, further as evidence to this fact it is stated that the union representatives all signed the EC 5 forms. The fact that the union representative signed the EC 5 form does not prove that the applicant suffered no prejudice or that the process followed was in actual fact fair. Rather that at the time of signature the representative may have believed this to be true. The applicant agrees there have been incident where unions have not signed, the reverse of that fact is that there have been incidents where union’s representatives may have signed due to some form of undue influence.
The applicant alleges that the process was not fair, the processes are put in place to be followed by both the Department and the candidates one cannot pick and choose which to follow nor can one say that most processes were followed therefore it is fair. Owing to circumstances in this matter it is evident that the process was flawed in that an applicant was also a member of the IC. As the process is flawed it cannot then be said to be fair to appoint the Second Respondent to the post and that the process should be re-done.
SECOND RESPONDENT’S (APPOINTEE) HEADS OF ARGUMENTS
The Second Respondent (appointee) did not make any submissions.
11. ISSUE TO BE DECIDED
11.1 I am to determine the respondent/employer perpetrated an act
of unfair labour practice against the applicant because the Interview Committee that conducted the interviews was not a legitimate structure. Further I am to determine the status of the appointment of the Second Respondent Mr Ndhlovu S N.
SURVEY OF EVIDENCE AND ARGUMENT
12. The applicant in this matter seeks the setting aside of the appointment of the second respondent and that the interviews must start afresh.
The First Respondent prays for the matter to be dismissed and the appointment of the Second Respondent be confirmed.
ANALYSIS OF EVIDENCE AND ARGUMENT
13. I have taken cognizance of the decision in Sweeney/ Transcash  6 BALR 712 (CCMA) where the commissioner held that arbitration hearings constitutes a rehearing de novo on the merits.
14. The promotion process of the respondent the Department of Education is regulated by HRM documents and collective agreements. The stakeholders in the education sector continuously appraise the procedure manuals and where necessary amendments are effected.
15. The following are of importance to direct parties in this sector that careful consideration must be given to the following principles that guide/ direct the promotion/ appointment process.
16. Should a better understanding evolve then this would lead to a more expeditious filling of advertised posts and effective teaching and learning situation. It is a clear from the number of disputes attended to by the ELRC that the education sector is saddled with promotion disputes that have the net result that the vacant posts remain in limbo until the matters are settled either by agreement or by awards.
17. The first concern is that the promotion/ appointment procedure manual
clearly defines the process and the obligations of the participants in the process. All participants must sign a confidentiality undertaking put simply it means that all information in their hands are privileged and confidential. As such any disclosure would render such information inadmissible. There must be strict adherence to the confidentiality clause. This seems to be the root cause of grievances and disputes at stages that the drafter had not envisaged.
18. Clearly the drafters of the procedures did not envisage the escalation of disputes but attempted to provide a quick and speedy finalisation of appointment to advertised posts.
19. Turning to the dispute at hand the role and powers of the District Grievance Committee (DGC) must be clarified and this may be done by referring to the Collective Agreement No. 1 of 2008 where the following are recorded:
THE GRIEVANCE PROCEDURE FOR HANDLING SCHOOL- BASED PROMOTION GRIEVANCES
This agreement shall bind the KwaZulu Natal Department of Education and all Educators employed by the KwaZulu Natal Department of Education and all parties to the KwaZulu Natal Chamber of the Education Labour Relations Council.
Section 8 of the Collective Agreement states as follows
The Grievance Committee, after having heard the parties must
make a finding. Should the findings be in favour of the applicant, the Grievance Committee shall make appropriate recommendations to the Human resources Manager at Head Office who shall implement the recommendation.
The findings of the Committee shall be recorded on the form GR 4 and signed by the aggrieved, his / her union if applicable and the Chairperson of the Grievance Committee.
If the Grievance Committee finds against the applicant, it shall recommend to the Human Resources Manager, Head Office whether to release the post or not.
The Chairperson of the Grievance Committee shall communicate the decision of the Committee to the grievant within 3 working days of the conclusion of the grievance hearing.
The grievant must within 3 working days of receipt of the
findings indicate on the Form GR 4 whether the findings are
accepted or whether the grievant intends lodging a dispute with
20. It is clear that the DGC was created to attend to dispute that could be resolved on a two prong basis.
21. Firstly ruling in favour of the grievant in which case the DGC’s decision would have to be implemented. The second case is when the DGC finds against the grievant who must them make an election as to whether to accept the finding or indicate whether he / she intends to lodge a dispute with the ELRC.
22. The parties are bound by the collective agreement and this includes individual educators employed by the KwaZulu Natal Education department. As such to set aside the decision of the DGC would sent the wrong message and would have the result of dragging on the appointment of persons to vacant / advertised posts.
23. In the present case the DGC had recommended that the selection process be re-done by a new neutral panel from short-listing.
24. This recommendation was communicated to the SGB and it consented to the Department taking over the process. This is in accordance with section 6(3)(d) read as follows:
(d) A recommendation contemplated in paragraph (a) shall be made within two months from the date on which a governing body or council was requested to make a recommendation, failing which the Head of Department may make an appointment without such recommendation.
25. In any event the SGB only makes recommendation to the Head of Department who has wide power in terms of the amendments to section 6 of the Employment of Educators Act, 1998 of which the following should be noted:
Section 7 (1) Section 6 of the Employment of Educators Act, 1998 is hereby amended by the substitution for subsection(3) of the following subsection:
(3) (a) …………..
(c) The governing body or the council, as the case may be, must submit, in order of preference to the Head of Department (HOD), a list of-
(i) at least three names of recommended candidates; or
(f) Despite the order of preference in paragraph (c) and subject to
paragraph (d) the Head of Department may appoint any suitable
candidate on the list.
(g) (iii) … appoint a suitable candidate temporarily or re-advertise the
(h) The governing body or the council, as the case may be, may
appeal to the Member of the Executive Council against the decision of
the HOD regarding the temporary appointment contemplated in
(k) If no appeal is lodged within 14 days, the HOD may convert the
temporary appointment into a permanent appointment in section 6 B.
26. It is clear from the above that the prerogative in appointing personnel in promotion post is that of the employer. The reason is simple that the responsible functionary eg HOD must direct the department’s plans and targets within reasonable grounds failing which certain consequences would follow.
27. In this case I do not believe that there was any mala fide on the part of the Department because it had followed the recommendations of the DGC and in any event EC 5 indicates that the applicant was the least ranked recommendation for the post.
28. I believe that the appointment to vacant posts is the prerogative of the employer and its decision should be based on the best interest of the school and the community that it must fill vacant posts as soon as possible. The applicant / employee has not shown that the actions of the employer was grossly unreasonable or in bad faith or was flawed and therefore I determine that I do not need to interfere with the employer’s decision.
29. As a consequence of the above I determine that the respondent /employer did not perpetrated an act of unfair labour practice against the applicant in taking over the process and constituting a new panel to complete the appointment process. The appointment of the second respondent Mr S N Ndhlovu as principal of Thubelihle High School is hereby confirmed.
30. The application is dismissed
31. The appointment of the second respondent Mr S N Ndhlovu as principal of Thubelihle High School is hereby confirmed.
32. There is no order as to costs.
DATED AT DURBAN ON THIS 21 DAY OF NOVEMBER 2012.
A S DORASAMY (ARBITRATOR)