Case Number: PSES 80-14/15EC
Province: Eastern Cape
Applicant: Ms. G. Rittles
Respondent: The Department of Education Eastern Cape
Issue: Unfair Labour Practice - Discrimination
Venue: Departmetn of Education District offices in Queenstown
Award Date: 9 March 2015
Arbitrator: M Huber
IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION
HELD AT QUEENSTOWN
In the arbitration between
Ms. G. Rittles APPLICANT
The Department of Education – Eastern Cape FIRST RESPONDENT
Mr. C. P. van Dyk SECOND RESPONDENT
The School Governing Body of St Theresa’s Primary School THIRD RESPONDENT
CASE NUMBER: PSES 80-14/15EC
DATE OF HEARING: 18 February 2015
DATES CLOSING ARGUMENTS RECEIVED: 25 and 26 February 2015
DATE ALL DOCUMENTS RECEIVED: 26 February 2015
DATE OF SUBMISSION OF OUTCOME
9 March 2015
NAME OF PANELLIST: M Huber
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council in terms of section 186(2) of the Labour Relations Act 66 of 1995 (“the LRA”). It was heard at the Department of Education’s District offices in Queenstown on the 18th February 2015.
2. The applicant, Ms Rittles, was represented by Mr M. Randell of Michael Randell Attorneys. The first respondent was represented by Mr L. Mvangeli from the Eastern Cape Department of Education. The second respondent, Mr van Dyk represented himself, and the third respondent, the School Governing Body (“SGB”), was represented by Ms N Ndodana.
3. The applicant’s representative, Mr Randell, indicated that the respondent had not exchanged bundles of documents as agreed in the pre-arbitration minute, and the first respondent indicated that it will not be relying on any documentary evidence other than the relevant Circular.
Issue to be decided
4. The purpose of this arbitration is to determine whether or not an unfair labour practice has been committed in terms of section 186(2) of the Labour Relations Act.
Survey of evidence
Matters that are common cause as per the pre-arbitration minute
5. The applicant is currently employed as an Educator at St Theresa’s Primary School, which falls under the DOE’s Queenstown District office.
6. The applicant applied for the position of Principal at St Theresa’s Primary School and was unsuccessful in her application.
Facts in dispute as per the pre-arbitration minute
7. The Applicant claims that the process was flawed in that the outcome of the person to be appointed as principal was pre-determined even before the appointment process had been concluded.
8. The first witness was Mrs Lindiwe Doko, the Principal of a farm school. Mrs Doko was the union representative observing the process in respect of the Principal post for St Theresa’s Primary School.
9. Mrs Doko had observed more than ten such processes and indicated that she was familiar with the functions of a school principal. She gave her view of the most important attributes that one would look for in a Principal, and said that she was able to evaluate candidates as she knew ‘each and every policy’.
10. Mrs Doko testified that she had been the SADTU representative in this specific process and had been there for the shortlisting and interview processes. She referred to documents in the applicant’s bundle of documents. She said that the interview committee met at 8am on the 17th September, to formulate the questions, and this was agreed although it was not minuted. She said Mr Adonis had arrived with prepared questions and handed them to Mrs Jaxa, and she (Mrs Doko) had said that this should not happen in that manner, and Mrs Jaxa discarded the questions.
11. She said that she ‘smelled a rat as a person who is well-versed in these things’ and had said to herself that ‘the questions were prepared for a specific candidate so the candidate came prepared for the interview’. She said that she was the person who ‘led the panel’ to discard these questions as she had said if they used them she would lodge a dispute.
12. The questions were then set by the interview panel and after the panel had scored the candidates, the panel had given feedback and they gave the observers an opportunity to comment. She said that she did not know any of the candidates but to her it was ‘not a fair decision that they took’, she said that Mr van Dyk could not answer one of the questions, the one about physical resources and as a post level 1 teacher she had been surprised.
13. Mrs Doko said that she had asked each of the panellists why they had preferred Mr van Dyk and their answers were recorded in the minute, but her name was not mentioned there. She indicated that Mrs Rittles had impressed her and she ‘did not see a Principal in Mr van Dyk’.
14. Mrs Doko said that Mrs Jaxa, the EDO, had said to them ‘tell her the truth’ and they had said that Mr van Dyk was the acting Principal first, they can relate to him, he is hard working, and when she went on tea, the NAPTOSA representative, Mrs Mopp had told her they do not want to pick Mrs Rittles because she is troublesome.’
15. Mrs Doko said that Mr Libazi had impressed her as a candidate. The first respondent objected to Mrs Doko speaking about Mr Libazi on the basis that he had not lodged a dispute. This objection was over ruled on the basis that this was part of the applicant’s evidence and was relevant to the case.
16. Mrs Doko testified about the interview panel’s responses to the reasons for placing Mr van Dyk first. She said that the interview panel were ‘guilty, guilt was written all over their faces, I could see guilt written all over their faces.’
17. Under cross-examination Mrs Doko said that the minutes were incorrect and her name should have appeared in them as questioning the various interview committee members. She stated under cross-examination that Mr Adonis had brought the minutes to her house and she had said they were wrong, so he had changed them and she had then signed them, but the minutes in the applicant’s bundle were incorrect and not the minutes she had signed.
18. Under cross-examination Mrs Doko said that she had declared the interviews fair because ‘they told me everything and therefore I decided to declare the interviews fair’.
19. The second witness was Mr Benedict Nxoyi, who had been part of the interview panel in 2012 when the interviews for Principal of St Theresa’s Primary School took place. Mr Nxoyi testified that the SGB had held a meeting alone, without the observers, and decided that they would first recommend Mr van Dyk as the Principal of the school, and ‘that was before the interviews, so we did so.’ He said that it was decided ‘long ago’ that Mr van Dyk would be the Principal.
20. Mr Nxoyi testified that they said they must give Mr van Dyk ‘the big scores’ and that is what they had decided to do, and give the others ‘the little marks’.
21. He said that the process has not been fair to the other candidates. He did not remember Mrs Doko asking the panellists questions. He testified that Mrs Rittles and Mr Labazi had answered the questions well, but he was bound by what he had agreed.
22. Under cross-examination Mr Nxoyi was asked to refer to his scores for Mr van Dyk and Mrs Rittles, and whether he still agreed with these, which he confirmed.
The Applicant’s Closing Argument
23. Matters that were common cause are listed in Respondent’s argument and reference is made to the fact that the Respondents did not produce the panel’s motivation as required by paragraph 3.3(b)(i) of the PAM.
24. The applicant stated that Mrs Doko’s evidence showed that the minutes were incorrect in that they did not reflect the fact that the panel met at 8h00 on the morning before the interviews.
25. Mrs Doko had raised the issue of the questions that Mr Adonis had brought in, and Mrs Doko had expressed astonishment at the view that Mr van Dyk had been placed first because he had performed poorly, exhibiting little knowledge of essential criteria. As a group they behaved ‘in a guilty fashion’ and answered the question posed by Mts Doko as to why they Mr van Dyk was the superior candidate and their answers [to her question, to each panellist] were meaningless and irrelevant.
26. Mrs Doko then testified as to the embarrassment demonstrated by the panellists which then ‘drove Ms Jaxa to implore them to ‘tell the truth’ implying she said that an untruthful state of affairs existed.’
27. Mrs Doko’s view of Mr van Dyk’s knowledge is set out and her view that Mrs Rittles was the superior candidate.
28. Mrs Doko then felt so incensed by the manifest unfairness and miscarriage of justice that the felt duty-bound to disclose to Mrs Rittles what had happened.
29. Mr Nxoyi’s evidence is referred to and the meeting which he testified was held, leading to a manipulation of score sheets.
30. The first respondent’s reference to Mr Nxoyi’s scoring is not a variance with his evidence is ‘neither here nor there’ as the whole process was, according to him, tainted.
31. Mr Nxoyi’s evidence was not challenged.
32. Mr Adonis is regarded as a poor witness who tailored his version to fill gaps created by himself.
33. The applicant submits that the evidence of Mrs Doko and Mr Nxoyi demonstrate unequivocally and unanimously the existence of a dishonest and fraudulent manipulation of the process.
34. The Applicant seeks a ruling that the interview process be set aside an declared unfair and irregular.
35. There also appears to be a procedural failure in that the interview panel did not submit the motivation referred to in the PAM for their preference list.
36. The interview and recommendation process as well as the appointment should be set aside and a new interview process should be held with a fresh panel presiding.
The Second Respondent’s case
37. The first respondent’s witness was not able to be located, and it was agreed that the second and third respondents would present their cases first. The second respondent, Mr van Dyk, indicated that he did not wish to testify and he did not have any witnesses to call.
The Second Respondent’s Closing Argument
38. The second respondent, Mr. van Dyk, submitted that he qualifies for the post of Principal and set out some detail of this in his closing argument.
39. He pointed out that he was the preferred candidate by all of the panelists and scored higher than Mrs Rittles who was ranked third.
40. There was nothing in the minutes that showed Mrs Doko raised objections during the proceedings and she declared that the proceedings were fair (as per the minutes). Mrs Doko’s evidence should be nullified as it is baseless. Mrs Doko is also a client of Mr. Randell’s and has an arbitration on the 11th March. She is also on record as saying that she breached her confidentiality agreement and revealed information to Mrs Rittles.
41. Mr. Nxoyi changed his evidence about the nature of the meeting held and also that he is no longer a member of the SGB, when he actually is. Both his and Mrs Doko’s evidence should be dismissed.
42. The appointment of the second respondent as the rightful candidate should be upheld.
The Third Respondent’s case
43. The third respondent, the SGB of St Theresa’s Primary School, represented by the Chairperson of the SGB, Ms Ndodana, called one witness, Mr Adonis.
44. Mr Adonis gave brief testimony that he was the secretary of the interview panel that interviewed the candidate for the post at St Theresa’s Primary School. He testified that according to his knowledge there had been no unfairness and the evidence shows that everything was done fairly and professionally.
45. Under cross-examination he disagreed with Ms Doko and Mr Nxoyi’s versions that the process had been unfair, prejudicial and manipulated. He disagreed with Mr Nxoyi’s version regarding the meeting between the SGB members and the agreement to score Mr van Dyk higher than the other candidates.
46. Mr Adonis indicated that he did not know why it was not put to Mr Nxoyi in cross-examination that he, Mr Adonis, was going to come and say ‘something different’.
47. Mr Adonis was cross-examined on Ms Doko’s role and participation in the process and his answer in respect of why Mr van Dyk was the best candidate. He denied that the score-sheets were calculated to deceive.
48. The first respondent then asked Mr Adonis questions, and based on the fact that these questions were eliciting evidence ‘to advance their case’, the applicant was permitted to cross-examine Mr Adonis after this evidence had been elicited.
49. Mr Adonis testified, in response to questions from the first respondent, that Ms Doko was not an analyst, but an observer and she had not objected during the proceedings, she was a SADTU observer and had not scored the candidates, as her role was to observe. He testified that he had taken the minutes to her, left them with her and collected them the next day, when she had signed them.
50. He testified that ‘all of the panellists’ had concurred in respect of Mr van Dyk, and that Mr Nxoyi had proposed Mr van Dyk, who had at that stage been the deputy principal who had acted in the post of Principal ‘for a year or more’.
51. Under cross-examination Mr Adonis denied Ms Doko’s version in respect of the minutes being changed on her request.
The Third Respondent’s closing argument
52. Mrs Doko did not ask the panellists why they were ‘choosing Mr van Dyk” during the process, she asked this question at tea time.
53. Mrs Jaxa and Mr Bucwa advised the panellists to rank the candidates in terms of their preference.
54. Each panellist made their recommendations and stated why their preferred candidate should be considered for the post, and it was not due to Mrs Doko’s questions.
55. The minutes were submitted as evidence and were signed by Mrs Doko but ‘funny enough’ all that was raised by Mrs Doko was not reflected in the minutes, a document that was submitted by the applicant.
56. Mrs Doko was lying when she submitted that she questioned each panellist, this is impossible ‘to be done by an observer in the interviews’. Mrs Doko’s evidence should be dismissed.
57. The evidence by Mr Nxoyi changed in that he called it a meeting and then a caucus, and then he said he was no longer a member of the SGB when he in fact is. Mr Nxoyi’s evidence should be dismissed.
58. The appointment of Mr van Dyk should be upheld.
The First Respondent’s case
59. Mr Mvangeli, for the first respondent, called one witness, Mr Bucwa, the EDO. He testified about the process for the appointment of a Principal, and that he and Ms Jaxa had been the resource people in this process.
60. He explained the role of the union observers and that they were not active participants. If there are objections they need to be indicated so that they are corrected ‘on the spot’. Mr Bucwa explained the process that was followed from shortlisting through to the interview process, including the ratification by the SGB of the nominated candidate.
61. He testified that everyone had signed the minutes and declared the process to be fair, including the resource persons, the unions and the panel. He testified that he had not seen any irregularities on that day. Ms Doko had been the SADTU representative. He testified that she had not raised any objections, as if she had, these would have been minuted. He testified that Ms Doko had declared the interviews fair, and he was there and had seen this.
62. Mr Bucwa said that the minute was a true reflection of the process and said that it was signed by the chairperson, Mr Adonis, Mrs Doko and Mrs Mopp. He testified again that Ms Doko had not objected during the process.
63. Under cross-examination he stated that he could not recall if the panel met early to formulate questions or whether the interviews started later because of this. He said that Ms Doko was not the person who objected to the questions that had been formulated and brought in by Mr Adonis, but it was their initiative as the resource persons, and no one had to ask, because they were the ones who said that the questions could not be used.
64. He denied that Ms Doko had threatened to declare a dispute if the questions were used, and said ‘that did not happen’. Likewise he testified under cross-examination that it did not happen that Ms Doko had expressed astonishment because the performance of Mrs Rittles had been the best and Mr van Dyk had been the worst.
65. Mr Bucwa testified under cross-examination that he did not find the panel’s answers [to questions about why they preferred Mr van Dyk] alarming, and he said that he believed that the panel performed their duty and they assessed a candidate and made their comments on the day of the interview – they applied their minds and judgement and scored according to policy. He said that the circular does not stipulate ‘how the minutes should highlight anything’ – he said that they did their jobs to the best of their abilities as panellists.
The First Respondent’s closing argument
66. Mrs Doko was an observer at the interview proceedings, and one of the duties of the observers is to check on fairness in proceedings and object if there are irregularities.
67. Mrs Doko gave evidence on the relative performance of the candidates and even commented on a specific finance question that Mrs Rittles answered. She also breached her duty of confidentiality by telling Mrs Rittles what happened during the proceedings at the interview.
68. It is not believable that Mrs Doko would talk to the panellists during the interviews because she was an observer, and it was also not recorded in the minutes.
69. Mrs Doko signed the minutes as a true reflection. She said the panel met at 8h00 however Mrs Adonis and Mr Bucwa both said they needed to be there before the interviews which was 10H00. None of the witnesses corroborated the start time of 8h00, including Mr Nxoyi.
70. The evidence from Mrs Doko regarding her objecting to Mr Adonis bringing questions to the interview should be dismissed, as both Mr Adonis and Mr Bucwa testified that the departmental officials and the panellists discarded the questions and crafted new questions on the day of the interviews.
71. The minutes were a true reflection of the interview process and Mrs Doko had signed them, and they had been central during the arbitration proceedings, being accepted as evidence.
72. Mrs Doko’s evidence that the minutes were archived I an opinion and should be dismissed.
73. Mrs Doko’s evidence in respect of her own ratings of the candidates should be dismissed as she was an observer.
74. All of Mrs Doko’s evidence should be dismissed because she signed the minutes to the effect that the process of the interviews was fair.
75. Mr Nxoyi’s evidence regarding the meeting held prior to the interviews should be dismissed as he was unable to provide minutes of them, and when asked for these, changed his version and said it was a caucus. Mr Nxoyi also said he was not a member of the SGB any longer when he is in fact still a member.
76. Both Mr Adonis and Mr Bucwa testified that there had been no meeting of the nature described by Mr Nxoyi, and Mr Nxoyi confirmed in the arbitration proceedings that he had scored Mr van Dyk highly because he was to the point and brief. He also proposed Mr van Dyk. The evidence of Mr Nxoyi should not stand because it did not appear in the minute bundle and it was not corroborated.
77. The first and third respondents’ witnesses’ testimony was that Mrs Doko did not make any objections during the interview process and the minutes confirm this. The minutes were part of the applicant’s bundle. The evidence of Mrs Doko and Mr Nxoyi should be dismissed and the first and third respondent’s testimony should be accepted, in that the appointment of Mr van Dyk was procedurally and substantively fair, and should be upheld.
Analysis of evidence and argument
78. Mrs Doko, the applicant’s first witness, did not come across as a credible witness. Mrs Doko was strongly opinionated as to her views of the correct candidate for this position. I accept the first, second and third respondent’s arguments and as put to Mrs Doko in cross-examination – she was an observer, and she was not an active participant in the proceedings.
79. I accept the testimony and argument submitted by the first respondent that Mrs Doko did not in fact raise the questions that she claimed to have raised during the proceedings, and I do not accept her hearsay evidence that Mrs Jaxa indicated at some point in the proceedings that the panel should tell Mrs Doko what they were doing [conspiring to appoint Mr van Dyk].
80. Mrs Doko’s claim that it was her that objected to Mr Adonis bringing questions in to the interview, and that she then ‘smelled a rat’ were indicative of her misleading the arbitration, in that it is more probable and I accept the testimony of Mssrs Adonis and Bucwa in this regard, that as a matter of process the departmental officials handled this, and it was not an underhand tactic by Mr Adonis. Mrs Doko’s version of her extremely active participation in the proceedings would have been recalled by one other witness, however neither Mssrs Bucwa nor Adonis recalled any of the aspects that she claimed she had taken the initiative on, and the applicant’s own witness, Mr Nxoyi, could also not recall any questions from Mrs Doko.
81.In addition, Mrs Doko’s version regarding the minutes is not accepted, given that she did not raise the alleged ‘changing’ of the minutes by Mr Adonis in her examination-in-chief, and only raised it when being cross-examined. I find it unlikely and highly improbable that her version is truthful. It is more likely that the minutes are a true reflection of what occurred, and I accept that the panellists would have been asked why they supported Mr van Dyk’s appointment in the normal course of the process to ensure consensus in the interview process, and this was not conducted by Mrs Doko.
82. Mrs Doko stated that she had decided to declare the interview process free and fair, during her examination in chief, apparently because she was happy that her questions had been recorded in the minutes. This does not make sense, and does not assist with her credibility as a witness.
83. In addition, the fact that Mrs Doko breached her confidentiality agreement [not to disclose the content of the interviews] does not reflect well on her, and it is something that I am certain the relevant trade union or the Department will address with her, being a serious breach of protocol, particularly after having signed and agreed that the interviews were in fact fair, by her own admission.
84. I further do not accept Mrs Doko’s assessment of each panellist and their respective answers. This is opinion evidence of a non-expert and is irrelevant. I accept that the questions asked reflected the necessary skills and qualities of a Principal, as per the evidence of Mr Bucwa, and that the panellists, who were appointed as panellists, were the correct and competent persons to assess these answers. Mrs Doko was not more qualified than them to do so.
85. I further do not accept Mrs Doko’s testimony as to the panellists having ‘guilt all over the faces’. This is her opinion, and she is not an expert in this field. Much of Mrs Doko’s testimony was based on her opinions and assessments, as opposed to facts.
86. I accept Mr Bucwa’s testimony that the responses by the panellists as to why they chose Mr van Dyk may be considered ‘lame’ by the applicant, but there is no specific format for these answers, and there are two union observers and two departmental officials observing the process, all who declared it to be a fair process. I accept that the questions posed by the panel and the answers of the candidates were the basis for the scores, and their responses to the specific question as to why they prefer Mr van Dyk is not relevant to the fairness of this process.
87. I have disregarded the arguments submitted by the second and third applicants in respect of Mrs Doko allegedly being a client of Mr Randell’s, which is irrelevant to this matter, and also the point made by Ms Ndodana that the questions by Mrs Doko was made at tea time. This was not submitted as evidence and has been disregarded.
88. As such, Mrs Doko’s evidence does not take the matter any further, and I turn to Mr Nxoyi’s evidence.
89. Mr Nxoyi gave testimony that was quite shocking, and evidence of something that would have had to occurred, if it did in fact occur, prior to 17 September 2012 – the date of the interviews. This means it would have occurred approximately 2 years and 4 months previously.
90. Mr Nxoyi testified that he had in fact part of a meeting by the SGB where they decided to in effect be dishonest, and to score Mr van Dyk higher than the other candidates. He did testify that he was no longer a member of the SGB, and it is correct, as per the arguments by the three respondents, that this was not true. In addition, it is correct that he in fact proposed Mr van Dyk as the preferred candidate, and he did testify under cross-examination that he agreed with his version that Mr van Dyk was the preferred candidate and his score of Mr van Dyk was correct.
91. I have applied my mind very carefully to Mr Nxoyi’s evidence, and I do not find him a credible witness. The only other witness for the applicant, Mrs Doko, lacked credibility and was not able to provide any corroboration for Mr Nxoyi’s testimony. I find it highly improbable that the entire SGB would have met and made a decision like this, without the fact or content of the meeting having become known and at least one other witness coming forward in these arbitration proceedings. I find it improbable that after carrying out what would be a gross breach of trust, Mr Nxoyi would come forward because of his conscience only when the matter was referred to the ELRC by Mrs Rittles.
92.I find the respondents’ versions more probable than his. I also accept the respondent’s arguments that Mr nxoyi in fact scored Mr van Dyk higher than the other candidates, proposed him and supported his appointment, as part of a free and fair process, observed by two trade union officials who signed that the process was fair, and two departmental observers, one of whom came forward and testified credibly and clearly as to the fairness and ‘normality’ of this process. This must be seen against the alleged objections, questioning, threats to lodge a dispute and then conspiracy to score one person higher than all the others, as per Mrs Doko and Mr Nxoyi’s testimonies.
93. On a balance of probabilities, and based on the credibility of the witnesses and the respective qualify of the evidence provided, I prefer the versions of the respondents’ witnesses.
94. In addition, whilst this matter concerns the complaints of the applicant and the focus has been on these complaints, and the evidence related thereto, there is another party whose rights needs to be considered, and that is the School – which has had a principal who has been appointed for 2 years now, and who is clearly competent to be a Principal. This dispute is not about his competence, but about his relative competence via-a-vis Mrs Rittles. Whilst this has not been a factor in the assessment in the evidence, it would have been a consideration should the applicant have made out a case of unfairness.
95. The applicant’s arguments and submissions have been addressed in the assessment of evidence and analysis, other than the reference to a procedural irregularity in respect of P.A.M, paragraph 3.3(b)(h) of Chapter 8 of the P.A.M. This relates to the governing body allegedly ‘blindly accepting the preference list without any motivation from the panel’. This was not addressed in the arbitration proceedings and was only addressed in argument by the applicant. In addition, if it indeed exists, it is not a gross procedural error and would not impact on the fairness of the non-appointment of the applicant.
96. The non-appointment of the Applicant, and the appointment of the Second Respondent, Mr van Dyk, was both substantively and procedurally fair, and does not constitute an unfair labour practice.
97.The application by the applicant, Mrs Rittles, is dismissed.
SIGNED AT CAPE TOWN ON THIS 9TH DAY OF FEBRUARY 2015.