Case Number: PSES 43-13/14 NC
Province: Northern Cape
Applicant: Francisca E. Links
Respondent: Mrs. W.F. Bok
Issue: Unfair Labour Practice - Discrimination
Award Date: 12 January 2015
Arbitrator: M.A. HAWYES
1. DETAILS OF HEARING AND REPRESENTATION
1.1 This has been a lengthy arbitration made lengthier by numerous postponements for various reasons, including the unavailability of witnesses and a late request for one of the parties to be legally represented.
1.2 The bulk of the evidence was dealt with on 2 and 3 April 2014 and on 10 and 11 November 2014.
1.3 Mr. C.J. Wessels, an attorney from Lange Carr and Wessels Incorporated represented the Applicant.
1.4 Mr. J.J. Pekeur, a labour relations officer represented the First Respondent.
1.5 Mr. J.D.P. Louw, an attorney from Louw and Van Zyl Incorporated represented the Second Respondent.
1.6 Upon finalization of the evidence the parties requested leave to submit written closing arguments upon or before the close of business on 21 November 2014. The Applicant and the Second Respondent submitted their arguments by 21 November 2014. The First Respondent submitted correspondence to the ELRC indicating that Mr Pekeur was not well. The correspondence included a medical certificate. A request was made that Mr Pekeur be given an extension to the 12th December 2014 to submit his closing arguments. After careful consideration I decided to grant the extension.
1.7 The festive season has intervened and this will result in further delays in the dispatch of this award. Nevertheless the award now follows.
2 BACKGROUND TO THE ISSUE IN DISPUTE
2.1 On 22 October the First Respondent published a list of vacancies and promotional posts in the North Cape Province (nr 2/2012). The Applicant applied for post number 201210/0107, which was a deputy principal position (Post level 3) at the A.J Ferreira High School in Upington (“A.J Ferreira”).
2.2 The Applicant was short listed and interviewed by the School Governing Body (“SGB”) of A.J Ferreira on 29 November 2012. Following the interview and selection process, the Applicant was recommended for the post as the SGB’s first choice. The Applicant was, however, not appointed. The Second Respondent was appointed as the successful candidate.
2.3 On 21 February 2013 the Applicant referred an alleged unfair labour practice dispute as contemplated in Section 186(2)(a) of the Labour Relations Act, no. 66 of 1995 (as amended) (“LRA”) to the ELRC alleging that the conduct by the First Respondent in not appointing her was unfair. Applicant requested appointment in post number 201210/0107 as from 1 January 2013 as a deputy principal on post level 3.
2.4 The parties each made use of their own bundles of documents. The Applicant’s bundle was marked Bundle A, the First Respondent’s bundle was marked Bundle B and the Second Respondent’s bundle was marked Bundle C.
3 SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT
3.1 The Applicant testified under oath and the evidence of one additional witness Ms Gertrude Maria A. Swartz (Chairperson of the SGB at A.J Ferreira in Upington) was led.
3.2 Applicant testified, inter alia, that the short-listing interview and selection process to be followed is contained in the Bulletin (A pages 2-7) and after the interviews, the SGB recommended her as their first choice.
3.3 During January 2013 the Applicant learnt that she was not appointed and on 14 January 2013 she declared a dispute (A pages 9-11). A copy of the dispute was handed to Mr. Clark in his capacity as Principal and forwarded to the First Respondent. As far as her interview with the SGB on 29 November 2012 was concerned, the Applicant testified that nothing untoward happened and that everything appeared normal.
3.4 The Applicant testified that she was appointed on post level 1 at Saul Damon High School in Upington on 1 January 1984 and was promoted to Head of Department (commercial subjects) during 1993 until she voluntarily resigned on 30 March 2004.
3.5 On 15 August 2006 she resumed her teaching career at A.J Ferreira.
3.6 The Applicant also testified that she was suitably qualified for the position she applied for and obtained a 3-year education diploma as well as a further 1-year diploma in commercial subjects. She furthermore had a B.Ed. Honours degree in Education Management.
3.7 With regard to the role of the Principal, Mr Clark, in the interview and selection process, the Applicant testified that Clark was an ex officio member of the selection panel who could only act as an observer and resource person. He had no input in respect of the scoring of a candidate, who the SGB recommends and, who eventually gets appointed. According to the Applicant, Clark interfered in the selection process and in fact favoured the Second Respondent.
3.8 The Applicant referred to Bundle A page 15, which was a letter from Mr. G.T Pharosi, the First Respondent’s Provincial Head of Department dated 3 December 2013 and addressed to the Applicant. In this letter Pharosi indicated the following: “In terms of the minutes of the School Governing Body (SGB) dated
3.9 30 November 2012, it is alleged that you were favourably scored by some of the SGB members to become the number one recommended candidate of the SGB. An investigation revealed that indeed there was undue influence exercised on some of the SGB members.”
3.10 Applicant’s attorney Wessels pointed out that the abovementioned letter was dated more than a year after the initial interviews. It further appeared to be in stark contrast with First Respondent’s representative Pekeur’s opening statement that the Second Respondent was appointed by the SGB after a “due process”.
3.11 The Applicant referred to Bundle A page 13 which is an affidavit by the Chairperson of the SGB, Swartz, to the effect that the Applicant was the No. 1 recommended candidate by the SGB in post nr 201201/0107 following the interview and selection process on 29 November 2012.
3.12 Swartz testified that during November 2012 she was the Chairperson of the SGB at A.J Ferreira in Upington. On 29 November 2012 interviews were held with candidates who applied for post no 201201/0107, which was a deputy principal’s position on post level 3. Mr Clark, the Principal, represented the First Respondent and did not take any part in the interview process.
3.13 Swartz testified further that following the interviews Clark was upset with the fact that the Applicant scored the highest points, which resulted in Swartz and other members of the SGB having to walk home at approximately 01h00.
3.14 Swartz testified further that on 30 November 2012 the SGB went back to the school in order to finalize the selection process. A meeting was held with Clark who once again expressed his dissatisfaction due to the fact that the SGB recommended the Applicant as their first choice and the Second Respondent as their second choice candidate. According to Clark the First Respondent had already indicated that the Second Respondent should be appointed and that the SGB cannot recommend the Applicant as their first choice candidate.
3.15 Swartz testified further that the SGB proposed that the candidate with the highest points obtained during the interviews should be recommended as their first choice for the post. As this proposal was seconded by Mr. Broekstein, the decision was taken and no counterproposals were made, the Applicant was recommended. This resulted in Clark indicating that he will declare a dispute. According to Swartz, Clark was involved in the whole process including the calculation of the scores of the candidates following the interviews as well as the preparation and completion of the form NCK2. Wessels argued that this was in stark contrast with his ex officio role as observer and resource person.
3.16 Swartz then testified that on Monday 3 December 2012 Clark and the Janitor (Jacob Maasdorp) approached her at the clinic at the old age home where she is employed and requested her to sign further documents required by the First Respondent in respect of the SGB’s recommendations. Clark waited in his vehicle whilst Maasdorp requested her to sign the documentation on the bonnet of the vehicle.
3.17 On Tuesday 4 December 2012, Clark and Maasdorp once again approached Swartz while she was at the taxi rank and once again requested her to sign further documents which she did.
3.18 During January 2013 the SGB and Swartz learnt that the Second Respondent was in fact appointed and not the Applicant as recommended by the SGB. The SGB immediately declared a dispute and a meeting with Mr. Pekeur followed. Pekeur indicated that he would get back to the SGB, which according to Swartz, never happened.
3.19 Swartz denied that she ever signed a recommendation to the effect that the Second Respondent was the SGB’s first choice. She denied that her signature appeared on page 2 of Bundle B. She confirmed that her statements contained at pages 13 and 16 of Bundle A were correct.
3.20 Swartz stated that she was never unduly influenced during the selection process and was, in fact, unaware of any undue influence exercised on any member of the SGB.
3.21 During cross-examination Pekeur enquired from the witness what documents she signed on 3, 4 and 5 December 2012. Swartz testified that she was contacted telephonically by the secretary who informed her that she should sign documents pertaining to the interview and selection process. As she was never involved in such a process previously, she was unaware of what other documents needed to be signed and as she was approached by Clark and Maasdorp while in public areas, she never read the documents she signed.
4. SURVEY OF FIRST RESPONDENT’S EVIDENCE AND ARGUMENT
4.1 The First Respondent led the evidence of two witnesses namely Mr. F.W Clark and Ms. M Loss.
4.2 Clark testified that as the Principal at A.J Ferreira during November 2012 he was the ex officio member of the selection panel in question on 29 November 2012 as an observer and resource person.
4.3 Clark testified that nothing untoward happened during the interviews on 29 November 2012 and it was never necessary for him to guide or reprimand any member of the selection panel.
4.4 During the interview process on 29 November 2012 certain parts of the NCK2 were completed (Bundle B pages 1-2) and that the NCK2 was signed on 30 November 2012 after the SGB concluded that the Applicant will be recommended as their first choice.
4.5 Clark testified the “something” was wrong on one of the NCK2 forms and he and Mr. Jacob Maasdorp corrected the form, found Mrs. Swartz and asked her to sign the form where after all documentation was handed in at the First Respondent’s district office in Upington on 30 November 2012.
4.6 Later on 30 November 2012, Mrs. Groenewald, the secretary, informed Clark that the district office of the First Respondent in Upington phoned the school and informed her that the Second Respondent should in fact be recommended as the SGB’s first choice due to the irregularities which appeared on the minutes of the interview conducted on 29 November 2012.
4.7 According to Mr. Clark he immediately corrected the NCK2 and requested the secretary to contact Mrs. Swartz telephonically. He explained to her what happened and informed her that on the instructions of the First Respondent, she must sign the amended NCK2.
4.8 Mr. Clark and Maasdorp proceeded to the taxi rank on 30 November 2012 where they located Mrs. Swartz and as she knew exactly what to do; Bundle B pages 1 to 2 were signed by her. According to Clark no pressure was placed on Swartz to sign as she is not a person who will let anybody prescribe to her what to do. Clark denied that Swartz signed any other documentation relating to the appointment of the number one candidate after 30 November 2012.
4.9 During cross-examination Clark conceded that it was not really his duty to complete the form NCK2 but he had done so.
4.10 The second and final witness to testify on behalf of the First Respondent was Ms. M Loss. Loss testified that she was a cleaner at A.J Ferreira School and a member of the SGB during November 2012.
4.11 Loss deposed further that before the interviews commenced Swartz and Ms. Klaaste instructed her to allocate 3’s to the Applicant. She, however, stated that she exercised her own discretion in awarding the points to each candidate. Loss testified that she gave the highest points to the Second Respondent.
4.12 The Second Respondent testified, inter alia, that she was 44 years old and commenced employment at A.J Ferreira during July 1995 on post level 1.
4.13 During 2006 she was promoted to Head of Department. During August 2006 the Applicant commenced employment at A.J Ferreira on post level 1.
4.14 The Second Respondent testified further that she had acted as Deputy Principal at the school since 2012 and applied for post no 201201/0107 during October 2012. She was short listed and interviewed on 29 November 2012. During January 2013 she was appointed in the position.
4.15 During cross-examination the Second Respondent conceded that the Applicant worked as a Head of Department as Saul Damon Secondary School in Upington for a period of 12 years.
5. ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 The principles set out in the case of SARS v Safety and Security Bargaining Council and Others (L C Case no: P426/08 Judgement date 27/10/2010), are relevant to the facts of this case.
5.2 The Court stated that the following principles ought to be applied when determining an unfair labour practice concerning unfair conduct relating to promotion:
1. There is no right to promotion in the ordinary course only a right to be given a fair opportunity to compete for a post. The exceptions are when there is a contractual or statutory right to promotion.
2. Any conduct that denies an employee a fair opportunity to compete for a post constitutes an unfair labour practice.
3. If the employee is not denied the opportunity of competing for a post, the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
4. The corollary of this principle is that as long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
5.3 I have had the benefit of surveying the qualifications and experience of both the Applicant and the Second Respondent in this matter. Likewise I have carefully observed their testimony and their respective demeanours whilst that testimony was given.
5.4 I am of the view and I consequently find that the Second Respondent is indeed the best candidate for the position of Deputy Principal. She has the requisite qualifications for the position, has a quiet and firm disposition necessary for the leadership and management tasks required of her as a Deputy Principal and perhaps mostly importantly she has hands on prior experience of acting in this position.
5.5 Stated quite plainly, the Applicant is not the best candidate for the position. As such Applicant does not have a right to promotion only a right to be given a fair opportunity to compete for a post. Applicant was certainly given that right.
5.6 The way I see it, the right result was achieved by two wrong methods. A major source of concern to me was the manipulations behind the scenes of two warring factions’ intent on achieving their own aims and purposes. Political aspirations swirl in, out and around the recruitment process, nebulous and amorphous, their presence felt and observed but their existence denied.
5.7 I have no reason to disbelieve the evidence of Loss that she was approached by SGB Chairperson Swartz and told to score the Applicant in a certain way. Clearly the Applicant was the preferred candidate of a certain political party and Swartz acted improperly by attempting to influence Loss to vote in a certain way. This tarnishes the credibility of her evidence.
5.8 School Principal Clark, believed that Second Respondent was the strongest candidate for the post and reported the situation to the relevant officials of the First Respondent. Swift yet inappropriate conduct followed. Clark was not a good witness probably because he misrepresented what really happened behind the scenes to try to mask and ultimately justify his actions to ensure that the Second Respondent was found to be the SGB’s first nominated candidate. The officials of the First Respondent appear to have acted in a similar vein
5.9 Some might argue that Clark and the First Respondent’s inappropriate actions were necessitated by Swartz’ initial manipulations. That may well be so, but the all-round disrespect for the law and protocol dealing with recruitment processes is noted and is alarming to say the least.
5.10 The all important question of the appropriate remedy now has to be decided upon.
5.11 In the SARS matter referred to earlier it was suggested that the appropriate remedy, as a general rule, would be to set aside the decision to appoint the Second Respondent and refer it back, with or without instructions, to ensure that a fair opportunity is given.
5.12 I find that Applicant was given a fair opportunity to compete for the position and indeed was unduly assisted by political interference by the SGB Chairperson herself. There is no evidence to show that Applicant was aware of these manipulations on her behalf but she certainly benefitted from them nonetheless.
5.13 The stability of schools is paramount in dispensing high levels of education. Uncertainty in the appointment of top management of schools adversely affects that stability. This dispute has dragged on since January 2013. If I were to set aside the appointment of the Second Respondent and order a re-run of the recruitment process I would simply be perpetuating perhaps even heightening levels of instability. This I will not do. The Second Respondent shall remain in her post.
6.1 The Applicant’s dispute referral is dismissed.
6.2 No order as to costs is made.
Date: 12 January 2015
Commissioner: M.A. Hawyes