Case Number: PSES 562-11/12 MP
Applicant: Mculu Inc. obo MS Malope
Respondent: Department of Education, Mpumalanga
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 10 January 2013
Arbitrator: MA Hawyes
PSES 562-11/12 MP
Date of Award:
10 January 2013
In the ARBITRATION between
Mculu Inc. o.b.o. M.S. Malope
Department of Education - Mpumulanga
Mculu Inc obo Malope MS
P.O Box 2434
013 737 6619
013 737 6616
Ms N Madonsela
Private Bag X
013 766 5552
086 680 1904
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The case was scheduled for arbitration and ran over three days, namely 3rd and 4th of October 2012 and, 7 December 2012. The arbitration took place at the offices of the Department of Education Bohlabela, Bushbuckridge.
1.2 Mr. J.B. Chiloane from Mculu Incorporated Attorneys in Hazyview represented the Applicant.
1.3 Mr. P. Nyatsumba represented the First Respondent.
1.4 Mr. D. Mashiloane from PEU represented the Second Respondent.
1.5 The parties were given the opportunity to submit written closing arguments by 14 December 2012. Only the Applicant and her legal representative availed themselves of this indulgence.
2. ISSUE IN DISPUTE
Whether the First Respondent acted unfairly by failing to permanently appoint Applicant to the post of Principal at the Saile
3. BACKGROUND TO THE ISSUE IN DISPUTE
3.1 It is common cause that Applicant has been in the employ of the First Respondent since January 1989 as an Educator stationed at the Salie Primary School.
3.2 In February 2008 Applicant was promoted to the position of Deputy Principal at the same school.
3.3 In January 2011 Applicant occupied the position of Principal at Saile Primary School in an acting capacity.
3.4 The aforesaid Principal post was advertised in the year 2011.
4. SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT
4.1 The Applicant testified under oath that she, like the other candidates, applied for the principal post and was invited to attend interviews by a notice appearing on page 80 of the Applicant’s bundle of documents.
4.2 The Applicant attended the interviews on 23 August 2011 and like all the other candidates she was interviewed by a panel, which she described as a legitimate panel because it was constituted by the School Governing Body (SGB) of the school and as required by the First Respondent’s policies and rules.
4.3 Applicant expressed the view that during the interviews she responded very well to the questions and she described her performance as being excellent.
4.4 After the interviews she was advised of the outcome when the official announcement was made. She was rated the first or best candidate. Applicant referred us to the results of the panel annexed on page 69 of her bundle which clearly reflected that she was rated the first candidate with a score of 237 and a percentage of 85%.
4.5 The Second Respondent who was later appointed to the position on 1 November 2011 was rated third by the interview panel as can be seen from the annexure on page 69 of the Applicant’s bundle of documents.
4.6 After the interview process an unreasonably long period of time elapsed and the Applicant was not appointed or promoted to the position of Principal.
4.7 In the interim Applicant received information that the Second Respondent was not short-listed at all when the short-listing process was declared final by the panel. Applicant testified that she heard that Second Respondent was smuggled onto the list of candidates short listed by the Circuit Manager, Ms O.M. Matyeka after learning that she was not short listed and another candidate, a certain Mr. T. Tshamano who was short listed was (fraudulently) removed from the list of short listed candidates to make way for the Second Respondent.
4.8 Applicant also testified that the Circuit Manager, Ms O.M. Matyeka, manipulated the process to secure the appointment of the Second Respondent who, according to her information, is also the Circuit Manager’s close friend and business partner.
4.9 Applicant testified further that she was later invited to re-interviews which were scheduled for 12 October 2011 at 10 o’ clock at the Dwarsloop Circuit Offices. The notice to attend is contained at page 55 of the Applicant’s bundle of documents.
4.10 Applicant testified that she arrived at the venue of the interviews (Dwarsloop Circuit Office) as stated on the invitation, but was surprised when she did not see anyone who appeared to be coming for interviews.
4.11 She asked one of the clerks at the Office of the Circuit Manager who informed her that she did not know of any interviews scheduled to take place at the circuit, as stated on the invitation she received.
4.12 Applicant testified that she was not advised, at any stage, of any change of venue of the interviews and that her phone was at material times switched on and no one ever called her.
4.13 On the following day the Applicant learned that interviews did take place on the 12 October 2011 at a different venue known as Mosana High School. She expressed the view that she was the only candidate who was given the wrong venue.
4.14 Applicant confirmed that the allocation of the wrong venue to her was done deliberately to get rid of her and to make sure that she was not part of the second interview process.
4.15 In support of her assertion Applicant testified that the Circuit Manager hated her and would do anything to sabotage her because of an incident that occurred in May 2011. Applicant deposed that it all started when a certain temporary educator, namely, R.S. Phoku was asked to fill a temporary post at Saile Primary School. Applicant testified that the union SADTU and Ms. Matyeka instructed her to fraudulently complete employment forms for Phoku as if he was employed in January 2011 whereas the educator was supposed to fill the post from May 2011.
4.16 Applicant refused to obey the instructions as she knew it was unlawful to do so. That is when relations between her, the Circuit Manager and, SADTU turned sour.
4.17 Applicant testified further that she was surprised when the Second Respondent was appointed at the school and in respect of the post that she (the Applicant) was supposed to be promoted or appointed to.
4.18 During cross-examination Applicant was asked by the representative from the First Respondent whether she was aware that a dispute was lodged in respect of the first interview process. Applicant responded by saying that she had heard that a dispute was lodged in respect of the post.
4.19 Applicant went on to explain that she heard that the nature of the dispute was that the Union observers complained that their allocation of marks differed from that of the interview panel.
4.20 Applicant went on to explain that, in her view, this was just a continuation of the conspiracy against her by the Union, the Circuit Manager and other officials because she refused to hire a temporary employee who was supposed to be employed in May 2011 retrospectively from January 2011 and the Circuit Manager and SADTU just wanted to teach her a lesson and show that they are in control.
4.21 Applicant testified further that according to her knowledge Union observers do not allocate marks and the allocation of marks is solely the responsibility of the interview panel.
4.22 The First Respondent did commence an investigation to determine whether there was any merit in the dispute. At page 56 of the Applicant’s bundle Mr. M.S. Mabase from Labour Relations expressed the First Respondent’s findings as such: “Our findings are that the dispute is genuine”. In the next sentence Mabase goes on to say: “You are therefore informed that the Department of Education will appoint a new interview committee to conduct the process re-interviews”.
4.23 Applicant expressed the firm view that First Respondent’s finding that the dispute was genuine was wrong. In fact it was a fabrication since observers cannot lodge a genuine dispute about their allocation of marks differing from that of the duly appointed interview panel.
4.24 Under re-examination Applicant referred to the investigation report found at pages 57-59 of the Applicant’s bundle of documents.
4.25 Applicant testified that as an affected person she was never interviewed about the dispute nor given an opportunity to state her case before an adverse decision was taken. She further mentioned that no other person or party who could have given information about the dispute was interviewed except for the two Unions. Applicant expressed the view that the report on the investigation as a whole was not properly done and is indicative of a mere conspiracy against her by officials of the First Respondent and the Unions who did not want to see her appointed to the post.
4.26 On the question of the recommendation by the SGB, the Applicant acknowledged that such recommendation was not yet made. Applicant testified that the SGB had indicated that they were satisfied by the outcome of the results that rated her as the best of all candidates. The satisfaction of the SGB is stated on the minutes attached to the bundle on page 70 under “comments”.
4.27 When asked as to why she attended the re-interviews while knowing she won the first interviews, the Applicant responded by saying that it was not an indication on her part that the outcome of the first interviews were not valid. She stated that had she known by then that she can challenge the unfair conduct of the First Respondent in terms of the interviews of 23 August 2011 – she would not have bothered attending the re-interviews.
4.28 The evidence of witness Mr. Papa Michael Mkhonto was then lead.
4.29 Mkhonto testified that he was the Chairperson of the SGB when the post of Principal was advertised at Saile Primary School.
4.30 He has attended almost all workshops for SGB members and is familiar with procedures prescribed by the First Respondent in respect of interviews and related matters.
4.31 He was present during the short listing and interview process of the Principal post held on 23 August 2011.
4.32 The short-listing process was conducted by the interview panel, and the Circuit Manager had requested to be excused because of other commitments but had left a replacement.
4.33 Five candidates were short listed, namely, V.S. Mthethwa, R.W. Dibakwane, T.T. Mowela, T. Tshamano and Applicant.
4.34 The Second Respondent was not short-listed. I was referred to pages 64 and 65 of the bundle of documents which details the panel results of some short listed candidates and those not short-listed. Mkhonto testified that “No” means a candidate was not short-listed and “Yes” means a candidate was short-listed.
4.35 When the short-listing process was concluded the SGB took the documents to the Circuit Manager for safekeeping.
4.36 The Circuit Manager then proceeded to remove Mr. T. Tshamano, who was short listed by the panel, and put in the Second Respondent.
4.37 Mkhonto expressed the view that the conduct of the Circuit Manager was irregular and in violation of First Respondent’s short listing procedures. He stated further that the interview was conducted properly by a panel constituted by the SGB.
4.38 He confirmed that the Applicant was rated first as shown on page 69 of the bundle.
4.39 He further confirmed that the SGB indicated their satisfaction of the outcome of the interviews as stated on page 70 of the bundle.
4.40 He stated that the union observers disrupted matters where they complained that the marks allocated by the panel differed from theirs. Mkhonto confirmed that a dispute about differences of marks allocated by panel and those allocated by observers is not a dispute to be entertained as observers do not allocate marks but only the panel allocates marks.
4.41 Mkhonto expressed reservations that during the investigation of the dispute none of the SGB members were interviewed and allowed to give their side of the story about what transpired.
4.42 When the Applicant was not appointed he and other members of the SGB approached the Circuit, Regional, as well as the Provincial offices of the First Respondent to enquire as to what was delaying the appointment of the Applicant, but all attempts were in vain.
4.43 Mkhonto testified that they were later called to a meeting by the Circuit Manager who told them that there will be re-interviews in respect of the Principal’s post and that the SGB of Saile Primary School will not be needed, and further that the Region will constitute its’ own panel to re-interview the candidates. He confirmed that the SGB was not involved or took part in the decision to conduct re-interviews. Further that the SGB was not present during the re-interviews and that they knew nothing about the outcome of such interviews.
4.44 Mkhonto confirmed further that the SGB did not at any stage receive any notice from the HOD that their powers were suspended. The SGB as originally constituted performed their duties until their term of office came to an end.
4.45 The SGB was surprised when the Second Respondent was presented to the school by the Circuit Manager as the new Principal. In closing, Mkhonto mentioned that the SGB did not sign any recommendation or other document for the appointment of the Second Respondent.
5. SURVEY OF FIRST AND SECOND RESPONDENT’S EVIDENCE AND ARGUMENT
5.1 Both Respondents’ lead no evidence and both presented no written closing arguments despite being afforded the opportunity to do so.
6. ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 I wish to start my analysis of the evidence by commenting on the quality of the testimony given by the Applicant and her witness Mkhonto and their general demeanour.
6.2 Both witnesses gave their testimony in a clear, detailed and precise manner. Hearsay assertions made by the Applicant during the course of her testimony (and allowed into evidence by myself) were later supported by the testimony of Mkhonto.
6.3 Applicant’s opinions on how she was treated by the Circuit Manager and others were backed up by credible supporting testimony made virtually unassailable by the absence of any evidence under oath by the First and Second Respondents.
6.4 Both Applicant and Mkhonto’s testimony had the clear ring of truth and they corroborated each other in all material respects. Furthermore, their oral testimony was strengthened by frequent references to Applicant’s bundle of documents.
6.5 I wish to deal now with the specific components that make up the jigsaw puzzle of this case.
6.6 How much criticism, if any, can be leveled at the first recruitment process at which Applicant was found to be the number one candidate for the Principal post? The short answer, stated euphemistically is, not much.
6.7 Two Union officials, one from SADTU and one from PEU complained that their scoring of the candidates was not ad idem with that of the panel members. Applicant’s legal representative referred me to clause 77 of ELRC Collective Agreement of 2003 which details the reasons for which a grievance or dispute against the decision of an interviewing panel can be lodged. Clearly no power is given in the relevant subordinate legislation for the scores of observers to be taken into account in assessing a candidate unless it is linked to criteria VI of clause 77 cited above. Criteria VI details “Discriminatory or prejudicial criteria used to shortlist or interview candidates”. None of the Respondents raised any discriminatory or prejudicial criteria and if they were present, the Respondents did not feel inclined to take the arbitrator into their confidence by testifying under oath.
6.8 If this was the Unions only concern one would have expected a fair and impartial enquiry to have quickly dispensed with the complaint which would have opened the door for Applicant to be appointed as Principal as the number one candidate of the SGB. Unfortunately this is not what happened. The enquiry did more than entertain the unauthorized criteria, it found in favour of the complainants stating that there was ‘merit’ in their assertions. After so finding it ordered a re-run of the recruitment process.
6.9 Whilst there are probably many reasons to criticize the decision of the enquiry the most glaring is that the enquiry ignored one of the most basic tenets of natural justice, the audi alteram partem rule. The enquiry “investigated” only the allegations of the Union officials and did not deem it appropriate to hear the version of the Applicant as a person who would be affected by their decision and the SGB who had been intimately involved in the selection of the Applicant as the number one candidate. In essence the investigation only considered the complaints of persons uninvolved in the actual scoring process.
6.10 The enquiry should have found that the reason for the complaint was flawed in law and the First Respondent should have called for the SGB’s formal recommendation in writing before allowing the HOD to make the final appointment.
6.11 The investigation was a ‘sham’ designed to provide a degree of legitimacy to the decision to re-run the short listing and interview process. This raises the question of who would want this to happen, and why?
6.12 The unchallenged testimony of the Applicant is that she and the Circuit Manager Ms. O.M. Matyeka were not on good terms. The reasons have been stated in detail in Applicants’ version. I have no reason to challenge their veracity.
6.13 Applicant’s testimony that Second Respondent was not one of the original short listed candidates and that she was smuggled into the short listed candidates by the Circuit Manager at the expense of one Mr. T. Tshamano, also stands unchallenged.
6.14 Even the most determined and brazen of cheats would have realized that the act of substituting one legitimate candidate for an illegitimate one could be challenged in terms of clause 77 that I have referred to above.
6.15 Thus for the Second Respondent to have any chance of being appointed a second recruitment would have to be engineered and the strongest candidate would have to be excluded. Thus followed the investigation and the ‘mistake’ of sending the Applicant to a different venue other than the one at which the second round of interviews were taking place. Thus Applicant could not be considered for appointment which left the Second Respondent in strong contention for appointment.
6.16 I have no desire to dwell on the legitimacy of the second recruitment process (although even that can be successfully challenged given the facts of this case) since in my view the first process was properly conducted in terms of First Respondent’s policies and procedures and the relevant provisions of the Employment of Educators Act no 76 of 1998 (as amended).
6.17 In paragraph 6.11 I raised the question of who would be motivated to interfere in the Principal recruitment process at Saile Primary School and who would have the power to manipulate the process.
6.18 It stands unchallenged that the Second Respondent and Ms.O.M. Matyeka are friends and business partners. This is in itself a strong motivator to favour the Second Respondent over the Applicant. Add to this Applicants’ refusal to obey Matyeka’s unlawful instruction to manipulate the date of appointment of a temporary educator and we have a solid motive for Matyeka to prejudice Applicant in her career progression.
6.19 As Circuit Manager, Matyeka was in a powerful position to influence who would be appointed and that is precisely what she did to the detriment and extreme prejudice of the Applicant.
6.20 Matyeka’s conduct highlights the malaise of corruption that exists within certain government institutions and it is hoped that the First Respondent will do the responsible thing and investigate the conduct of those responsible for treating its policies with such disdain and contempt.
6.21 I wish to express my appreciation to Mr. Chiloane for his thorough and insightful closing arguments. Chiloane pointed out that for Applicant to be appointed to the post of Principal she must meet the experience and qualification requirements of the post. In this regard he is quite correct. Applicant was short listed by the interview panel because she complied with the requirements mentioned above and further she was rated the first compared to the Second Respondent who was rated third. We ignore, for now, the fact that Second Respondent should not have been short listed in the first place according to proper norms and protocols.
6.22 I agree with Chiloane that there is no evidence suggesting that the appointment or promotion of the Applicant falls within the exceptions or grounds under which the Head of Department may decline her appointment. The appointment of Second Respondent to the post was achieved through malicious manipulation and arbitrary conduct. There is no doubt that, viewed on a balance of probabilities, the non- appointment of the Applicant is substantially unfair.
6.23 I turn now to the all-important question of what relief should be ordered.
6.24 Chiloane has argued for two sets of possible relief. The first is that the appointment of the Second Respondent be set aside and that the Applicant be appointed to the post and be remunerated an amount of R59 503-50, the amount being the difference between her current salary and what she would have earned were she appointed to the post from 1 November 2011 to 31 December 2012.
6.25 Alternatively, Chiloane argued that the Applicant be paid an amount of R404 342-00 being the difference between her present salary and what she would have earned if she had been promoted to the post from 1 November 2011 until when she reaches the retirement age of 60 years on the 31 December 2024. While it is understood that there may be increments from the date of award until retirement, the Applicant is not concerned about such increments.
6.26 I am inclining towards the former relief and not the latter.
6.27 In the case of SARS v Safety and Security Bargaining Council and others (LC Case no P426/08; judgement date 27/10/10) the Labour Court held that because there is no right to promotion in the ordinary sense, as a general rule the appropriate remedy is to set aside the decision and refer it back with or without instructions to ensure that a fair opportunity is given.
6.28 The Court did, however, note two exceptions. This principle does not apply to discrimination or victimization cases in respect of which different and compelling constitutional interests are at stake. It also does not apply if the Applicant proves that but for the unfair conduct, she would have been appointed. It is clear from the facts of this case that were it not for the unfair meddling and manipulation of the Circuit Manager, Applicant would have been appointed as Principal of Saile Primary School, as the number one candidate.
6.29 In the case of NUTESA v Technikon Northern Transvaal  4 BLLR (CCMA) the arbitrator found that if a promotion is unfair, an arbitrator may only set aside the appointment if the person appointed is a party to the arbitration.
6.30 It is common cause that Second Respondent (the current incumbent in the Principal post) was joined from the very outset of these proceedings and was represented by an official from PEU. It is equally evident that no serious attempt was made to challenge Applicant’s claims that she should have been legitimately appointed to the post of Principal.
7.1 The appointment of the Second Respondent as Principal at Salie Primary Scholl is set aside.
7.2 The Applicant is appointed into the said position with retrospective effect backdated to 1 November 2011.
7.3 The First Respondent is ordered to remunerate the Applicant in the amount of R59 503-50 (fifty nine thousand five hundred and three rands and fifty cents). The aforesaid amount represents the difference between the Applicant’s current salary and what she would have earned were she appointed to the post from 1 November 2011 to 31 December 2012.The amount is calculated as follows : monthly salary i.r.o. Principal’s Post = R25 919-50. Applicant’s current salary as Deputy-Principal = R21 669-25. The difference is R4 250-25. The difference multiplied by fourteen months (1 November 2011 to 31 December 2012) is R4 250-25 x 14 = R59 503-50.
7.4 The amount mentioned in paragraph 7.3 must be paid to the Applicant within a period of thirty days of the date of service of this award.
7.5 The First Respondent is ordered to pay the Applicant’s taxed legal costs on a party and party scale.
10 January 2013