Case Number: PSES 444-12/13WC
Province: Western Cape
Applicant: NAPTOSA obo Houghton Mlambi Matshingama
Respondent: Department of Education: Western Cape
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: Cape Town
Award Date: 19 August 2013
Arbitrator: Bella Goldman
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
Case No PSES 444-12/13WC
In the matter between
NAPTOSA obo Houghton Mlambi Matshingama Applicant
Department of Education Western Cape Respondent
ARBITRATOR: Bella Goldman
HEARD: 22 March, 10 May and 16 July 2013
DELIVERED: 19 August 2013
DETAILS OF THE HEARING AND REPRESENTATION
The arbitration hearing was held at the Cape Town offices of the Council on 22 March, 10 May and 16 July 2013. Mr Riedwan Ahmed, Union Official represented the applicant. Ms Colleen Bailey, State Attorney instructed represented respondent party. The proceedings were recorded. It was agreed that closing arguments would be presented in writing.
ISSUE TO BE DECIDED
The dispute was referred as an interpretation and application of a collective agreement terms of section 24 of the Labour Relations Act 1995 as amended (LRA). The Collective agreement in question is Resolution number 6 of 1997 which relates to the Conditions of Service of Persons who Perform Duties in Respect of Public Examinations and in particular the criteria for the appointment of Educators for Examination Related Work.
The applicant is claiming that he should have been appointed as the Internal Moderator for the Isixhosa Home Language Paper 3 for the 2012 matric examination on the basis that he was the best applicant for the position. When he referred the dispute in October 2012 the applicant was requesting that in terms of relief he be appointed in the position, as a result of the time that has elapsed he is requesting that he be financially compensated in terms of relief.
BACKGROUND TO THE ISSUE
The following facts are common cause unless otherwise indicated. The applicant has been in the employ of the respondent since 1993 and has been employed as an Office Based Educator since 2002. He is presently employed in the position of Deputy Chief Education Specialist (Senior Curriculum Planner) and is based in Cape Town.
The applicant successfully applied for the position of an Internal Moderator for the Isixhosa Home Language Paper 3 of the 2011 matric paper for the period from November 2011 to March 2012. The applicant again applied for the same position in 2012 and was this time unsuccessful; he submitted a grievance on the basis that the successful incumbent, Mr Molefe a Curriculum Adviser did not meet the required criteria in that Molefe had never acted as a Moderator or an Internal Moderator before, whilst the applicant had. The applicant’s grievance was unsuccessful, the respondent’s case is that the applicant being an office based educator did not meet the required criteria and that even if Molefe were not appointed the applicant was not the next most suitable person and would have not been appointed into the position in question.
The hierarchy relating to markers from highest to lowest is: Internal Moderator, Chief Marker; Deputy Chief Marker, Senior Marker and Marker.
In terms of the relevant clause of the Annexure to the Collective Agreement to be appointed as an Examiner candidates must be have:
A three year post matric qualification which must include the subject concerned at 2nd or 3rd level;
Have extensive experience as an educator in the particular subject or related area and at least two years teaching experience within the last two teaching experience within the last 5 years at the appropriate level
Have experience as a marker
In addition to the above criteria preference should be given to serving school and college based educators.
Further Clause 5 of the Annexure to the agreement states that “in selecting and appointing person to the various examination positions, cognisance must be taken of the general need to build capacity among serving educators in order to attain equity in respect in respect of race and gender, also taking into account the special needs of educators in rural areas. This should be pursued by reserving a certain minimum number of appointments for this purpose. The number of appointment for this purpose should correspond with the department needs in this regard.
In terms of Clause 1.5 of Annexure A of the Agreement, to be appointed as an Internal Moderator;, experience as a moderator or a chief marker in previous years is a requirement.
It was common cause that Molefe had no previous experience as a Moderator or Chief Marker and that the applicant had been an Internal Moderator before and that neither had two years teaching experience within the last five years. However the respondent argued that that Molefe was the best candidate as he met the other criteria and served the rural areas.
SURVEY OF THE EVIDENCE AND ARGUMENT
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.
The parties submitted bundles of documents which were agreed as being what they purported to be. The applicant’s bundle was marked ‘B’ and was numbered 1 to 176 and the respondent’s bundle was marked ‘A’ and was numbered 1 to 43:
The applicant, Houghton Mlambi Matshingama gave evidence under oath. The following is a summary of his testimony:
Houghton Mlambi Matshingama
The applicant went thought his professional history and stated inter alia that he had 20 years marking experience and has been instrumental in planning the Isixhosa curriculum. He had been an Internal Moderator for the paper in question in 2011 and as per the comparative template which was not disputed had acted as a Moderator on seven occasions.
The applicant said that there has been a conspiracy against him ever since he objected to two markers being nominated when he was on the Nominations Committee in 2009 when he recommended that two applicants were not suitable for the positions of markers and thereafter he received death threats. The applicant said when he was not appointed for the position of Internal Moderator in 2012 he requested reasons from the relevant Director, Ms Modimakwane per email in October 2012. She informed him that he was not successful in his application for the position of Internal Moderator Isixhosa Paper 3 as he only applied for that position and he could not then be considered for other positions. The applicant was not given other reasons. The applicant stated that even though he and Molefe the successful candidate met the minimum qualification criteria he believes he is better qualified having a BA (Hons) degree which Molefe does not have.
In terms of the requirement relating to rural areas, the applicant further stated that he also comes into contact with rural schools as he has conducted workshops in the rural areas. The applicant said that on the respondent’s argument he and Molefe have been wrongly appointed a number of times as they have been office based for a number of years and have marked papers on a number of occasions and the applicant has moderated papers on a number of occasions.
The witness stated that looking at the list of candidates for the paper in question it would have made more sense to make Molefe the Chief Marker and appoint him as the Internal Moderator.
The respondent called one witness, Zodwa Modimakwane, Director: Assessment Management who gave evidence under oath. The following is a summary of her testimony:
The appointment of markers falls under the control of the witness’s directorate and the witness has held her position since 2007. The witness chairs the Marker’s Nomination Committee which nominates markers, the nominees are then appointed by the Head of Education who normally approves the nominees.
The process involved in the appointment of markers throughout the hierarchy is that an internal advert is circulated which contains the criteria as per the Collective Agreement and its annexures. However the advertisement does not refer to the criteria relating to rural areas and employment equity referred to above.
The witness explained the rationale behind the clause relating to the reservation of positions for markers from rural areas. This was so that the markers could return to the rural areas and provide support to the educators and learners in those areas in terms of what they had learned from their experience of the marking process.
The witness explained that her area of jurisdiction contains four rural and four non rural districts. The four rural districts are, Eden and Central Karroo, Overberg, West Cost and Cape Winelands.
For each paper there is a team of an Internal Moderator, Chief Marker and Deputy Chief Marker and preferably one of those persons should be from a rural area. However the ultimate criterion is the best interests of the child and if there is no suitable person from a rural area applying the criteria in the best interests of the child then so be it.
The applicant only applied for the position of Internal Moderator. He met the following criteria as per the advertisement:
He had 8 years teaching experience of which 5 were in the subject concerned at grade 12;
He had been an Internal Moderator on previous occasions and had been an Internal Moderator for the same paper in 2011;
However he did not meet the criteria of having taught for two of the last five years as he was office based. However Molefe the successful candidate did also not meet that criterion and Molefe did not meet the criterion of having been an Internal Moderator, Moderator or Chief Marker before but he had been a Deputy Chief Marker on previous occasions. The reason Molefe was chosen was that Molefe was a Curriculum Advisor based in the rural areas and as such had direct contact with rural schools.
The witness denied that the applicant worked in the rural areas; she stated that the West Coast had no Curriculum Advisor so the applicant had been persuaded to assist the rural teachers, but this gave him no direct contact with rural schools as Mr Molefe had and has on a regular basis. The applicant is and was based in Cape Town and as per his own reports does not visit rural schools. Whilst Molefe’s actual position as Curriculum Adviser is and was to visit and support rural schools and to interact with Educators in the rural areas and thus he can take back what he gains from his experience as an Internal Moderator to rural area.
The witness went though the list of applicants for the position of Internal Moderator for the paper in question. The best applicant was Ms Ngolomela who met all the criteria but had she been appointed the whole team would have been female and urban.
The witness stated that she does not believe that the applicant should in any way be compensated for not being appointed to the position as he did not meet even the minimum criteria being an office based educator and not having taught for 2 years in the last 5 years.
It was put to the witness in cross examination that the criteria relating to equity and being rural based are not referred to in the advertisement, the template or the minutes of the nomination meeting. The witness stated that the criteria were considered and in any event the applicant did not even have the minimum criteria in that he was office based. It was put to her in cross examination that Molefe did not meet two minimum criteria in that he was office based and had never been a Moderator before.
The parties submitted argument in support of their respective cases which I will refer to where necessary in my analyses.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
The dispute was referred as an interpretation and application of a collective agreement. It is trite that a collective agreement takes precedence over the LRA and is a form of subordinate legislation and as such the respondent being an organ of state must abide by the terms of a collective agreement.
On the facts before me neither Molefe nor the applicant met the minimum criteria as per the collective agreement as they were both office based educators, neither had taught in the last five years and Molefe did not meet an additional minimum criteria in that he had never been appointed as a Moderator or Chief Marker.
On the evidence before me neither the applicant or Mr Molefe should have been appointed to the post in question as neither met the minimum requirements per the collective agreements albeit that the applicant did on the evidence meet them to a greater extent than Molefe in that he had experience as a Moderator; once on the same paper and on six other occasions on different papers as per the comparative template which was not disputed.
In terms of the criterion relating to rural areas; this will only kick in once the minimum criterion are met and thus should not have even been considered when it came to Mr Molefe and the applicant as neither met the minimum criteria and hence I am not going to address the issue as to whether either Molefe or the applicant served the rural areas or did not.
Suffice to say that given that the applicant did not meet the minimum requirement for the position in question I cannot order that he be compensated for not being appointed into the position even though the appointment of Molefe appeared on the evidence before me to have been irregular. In terms of the evidence before me the most suitable candidate was Ms Ngolomela albeit she was from an urban area; had she referred a dispute relating to her non appointment she may well have succeeded as she did met the minimum requirements and based on the evidence before me appeared to be the most suitably qualified for the position.
I find that on the evidence before me it appears that the respondent did not appoint the Internal Moderator for the Isixhosa Home Language Paper 3 of the 2012 matric examination in accordance with the provisions of the Collective Agreement, Resolution number 6 of 1997 which relates to the Conditions of Service of Persons who Perform Duties in Respect of Public Examinations. However the applicant in terms of his referral claimed that he was the best applicant for the position and as he was not appointed to the position he should be financially compensated. I find for the reasons stated above that he was not the best applicant for the position as he did not meet the minimum criteria and he thus cannot be and is not is awarded relief.
There is no order as to costs.