Case Number: PSES 31-13/14WC
Province: Western Cape
Applicant: SADTU obo Robert Blaauw
Respondent: Department of Education: Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 21 October 2013
Arbitrator: Hilary Mofsowitz
IN THE EDUCATION LABOUR RELATIONS COUNCIL (“ELRC”)
In the matter between
SADTU obo ROBERT BLAAUW APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
CASE REFERENCE PSES 31-13/14WC
DETAILS OF HEARING AND REPRESENTATION
This is the award in the matter between South African Education Teachers Union (“SADTU”) obo Robert Blaauw (“Applicant”) and the Western Cape Education Department (“the Department”).
The matter was set down for arbitration at the Department’s offices In Vredenburg on 25 and 26 September 2013. Final submissions were received on 7 October 2013. This arbitration was heard simultaneously with PSES 32-13/14 (E Peters and the WCED) as the facts of the two matters were similar. The parties agreed on the arbitration process.
Eben Peters (“Peters”) an Official with SADTU represented Applicant.
Lauren Randall (“Randall”) a Labour Relations Officer represented the Department.
The proceedings were digitally recorded. The documentary evidence forms part of the record.
ISSUE IN DISPUTE
I have to decide whether the Department committed an unfair labour practice in relation to promotion.
Applicant has been permanently employed within the Department since 1990. He currently holds the position of Educator (and temporary Head of Department) at Louwville High School in Vredenburg. The School mostly caters to children from less privileged and rural communities.
Applicant applied for the position of Deputy Principal at Louwille High School, was short listed, interviewed and unsuccessful. The successful candidate Rose Ruite (“Ruite”) was appointed on 1 April 2013. The Post in dispute is known as Post Number 1005 and was advertised in Vacancy List 3 of 2012. Ruite was joined as a Second Respondent to the proceedings but elected not to attend proceedings as the relief Applicant sought did not seek to disturb her position. Had Applicant been successful, the post would have been a promotional post.
Applicant argued that the failure of the Department to appoint him in the position of Deputy Principal amounted to an unfair labour practice in relation to promotion and sought compensation.
The final interview scores are not disputed. Ruite obtained 392 and Applicant obtained 343.
APPLICANT’S EVIDENCE AND ARGUMENT
Applicant testified. In essence it was Applicant’s evidence that the Department did not comply with relevant legislation and prescripts in relation to recruitment and selection.
It was Applicant’s evidence that the Interview panel was not properly constituted as there is no proof that the SGB formally approved the panel. There was no planning meeting, no attendance register and no quorum. The Department therefore conducted itself in contravention of the requirements of the Employment of Educators Act 76 of 1998 (“the Act”).
The Department also failed to comply with certain provisions of the Employment of Educators Act 76 of 1998 (“the Act”) particularly related to the provisions surrounding the invitation to SADTU to attend the short listing and interview processes. The lack of Trade Union presence could have prejudiced the candidates as the Trade Union was not there to ensure fairness. The Department’s conduct was not checked without the watching brief of the Trade Union and therefore a particular candidate could have received an unfair advantage. The invitation was not properly signed and therefore not an official document.
Applicant confirmed his relevant experience and qualifications. This was not disputed. His qualifications and experience would successfully equip him to hold the position of Deputy Principal. The lack of proper process has disadvantaged him and the outcome of the process is disputed. Applicant testified that he ought to have been the successful candidate.
Sizwe Matomela (“Matomela”) an Educator at the School testified. He confirmed that the Department did not comply with relevant prescripts in relation to correspondence with the Trade Union and the invitation extended to the Trade Union to participate in the process.
Brandon Wilsnach (“Wilsnach”) testified. He was short listed for the post, interviewed but not successful. He is currently an Educator at the School and holds the position of Head of Department. Wilsnach was dissatisfied that Daniels spent approximately ten minutes (in the absence of Wilsnach) while Daniels saved his presentation. Wilsnach was not permitted to save the presentation himself. Daniels tampered with the presentation as Wilsnach realized that it was not the presentation he prepared. Wilsnach advised the interview panel accordingly as it was a simple task and he could not have made such a mistake. Wilsnach had all the necessary skills and experience to present a presentation of a satisfactory standard. The interview panel disregarded Wilsnach’s allegations that his presentation was tampered with. The interview process was therefore negatively affected.
THE DEPARTMENT’S EVIDENCE AND ARGUMENT
17.Caroline Daniels (“Caroline Daniels”) is the Secretary of the School and a member of the School Governing Body in a “non educator” position. She testified and confirmed that she sent the invitation to the Trade Union on 12 October 2012. This forms part of the record. Caroline Daniels utilized an email address that she had used in all previous communication to the Trade Union. All previous invitations were sent to the same contact details and the Trade Union made itself available on previous occasions.
Avril David Daniels (“Daniels”) is the Institutional, Management and Governance Manager (“IMG Manager”). He testified and denied that his conduct was in any manner improper or with ulterior motive. He denied influencing the interview panel in an undue manner and confirmed the need to guide the members of the SGB (as they are generally not competent in interviewing processes). The process took place in the absence of trade union representation as the Trade Union was invited and did not attend.
Daniels assisted the interview panel with capturing of all the relevant scores and displaying the scores on the screen. He highlighted the wide discrepancies in some of the scores (as rated by the panel) and suggested that the panel discuss this. At no stage did Daniels enjoy voting rights. He mentioned all the names of the candidates where there were discrepancies; he did not specifically mention the name of the successful candidate.
It was the evidence of Daniels that the successful candidate Ruite had previously been employed with the Department for a number of years and at the time of the interviews for the disputed post, she held a Head of Department Educator Post. This appointment was made by the SGB of Hopefield High School where she was previously employed and therefore she had the relevant experience as per the criteria for the Post.
Nomnikelo Gaika-Walaza (“Walaza”) served as the Resource person during the selection process. She is employed as an IMG Manager. Walaza testified and confirmed that as the SGB were unable to achieve a “quorum” at two meetings held for this purpose, it was decided that the SGB would elect itself as the interview panel. This process was properly recorded. She denied that Applicant was prejudiced in the process.
Ruite was nominated as the number one candidate as Ruite presented well during the interview, she had previous experience as an HOD and answered all the questions correctly.
The SGB/Interview panel presented a list of three nominated candidates to the SGB at a formal meeting.
ANALYSIS OF EVIDENCE AND ARGUMENT
In the main Applicant argued that the process of interviewing and selection was unfair as the Trade Union was not invited to the process, that the interview panel was unduly influenced by management’s involvement and that the Department did not follow the applicable prescripts as prescribed in Legislation.
I have accepted the evidence of Caroline Daniels that she corresponded with the Trade Union and sent the letter of invitation on 12 October 2012. Applicant did not dispute that the letter was sent to the Secretary of the West Coast Branch and that the School resides under that Branch. While I accept that the correspondence was not sent to the Provincial Office of the Trade Union (regardless of who signed the letter and whether the Trade Union was given four or five days notice), the evidence of Caroline Daniels that she regularly uses this address for correspondence with the Trade Union (and that the Trade Union has attended after invites were sent to this address in the past), support the version that the Trade Union was aware of the invitation and elected not to attend. The Department therefore cannot be blamed for the lack of Trade Union presence during the process.
There was much evidence about the lack of a planning meeting, the lack of proper minutes, and the constitution of the Interview panel. Given the background of the School and the fact that the SGB met on two occasions in order to establish a quorum (and were not successful), it seems reasonable that the SGB elected themselves to be the Interview panel and that they attempted to their best ability to comply with the relevant prescripts. Their failure to follow the relevant prescripts to the extent that Applicant may have found satisfactory, did not render the process unfair. There was insufficient evidence to establish how Applicant was prejudiced by the lack of observance of all the technicalities. He was short listed for the process and in fact scored the third highest in the interview process. He clearly was not disadvantaged in the short listing process. Even if the Interview panel was not formally established as per the prevailing prescripts, it is clear that an orderly interview process was followed and the minutes of the interview process forms part of the record. Applicant conceded that there are times that the SGB experience difficulties in establishing a quorum.
It may well be that Daniels and/or Walaza overstepped their roles as Resource/Technical experts. However given the inexperience of the Interview panel, and the request for assistance from the panel, the assistance from management was probably needed. I have accepted the evidence of Walaza and Daniels that they did not deliberately influence the panel in an improper or negative manner. The interview scores form part of the record. It is clear from the scoring that the different panel members exercised their right to score the individual candidates as was seen fit as the scoring deferred between the members of the panel. In an interview process it is probable that elements of subjectivity can be expected, but there was insufficient evidence to support the conclusion that Walaza or Daniels influenced the panel to the extent that Applicant was disadvantaged in the process. There was insufficient evidence to conclude that Applicant was more suitably qualified for the Post (despite his excellent track record) or that Ruite was not suitable for the Post. I have accepted the Department’s evidence that Ruite had relevant experience and was suitably qualified and met the criteria for the Post. Although Ruite did not hold a WCED post at the time, she held a HOD post and was employed within a SGB position. The eliminated candidates did not hold teaching posts. An Interview panel holds the right to assess overall performance during the process and is not obliged to only consider qualifications and track record.
Applicant was clearly aggrieved with the outcome of the process. While Applicant was clearly a suitable candidate, Ruite achieved a slightly overall higher rating. The panel’s decision to nominate her as the candidate of first preference is fair and reasonable. The panel’s decision to nominate Applicant as the candidate of third preference does not seem unreasonable in the circumstances.
Applicant has not established that there was undue influence over the panel or that the lack of following the applicable prescripts disadvantaged him. There was insufficient evidence to conclude that Ruite was not a suitable candidate or that Applicant was more suitable. While Daniels may have overstepped his role, there is insufficient evidence to conclude that he did so with willful intent or with intent to advantage one candidate over the other.
Applicant has therefore failed to discharge the onus that the Department committed an unfair labour practice in relation to promotion. There was insufficient evidence to conclude that the Department was arbitrary or capricious in its conduct.
Applicant has failed to discharge the onus that the Department committed an unfair labour practice in relation to promotion.
for the ELRC
PSES 31-13/14 WC
21 October 2013