Case Number: PSES225-15/16
Province: Western Cape
Applicant: JAN MARS
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education offices in Cape Town
Award Date: 16 August 2015
Arbitrator: Gail McEwan
Commissioner: Gail McEwan
Case No.: PSES225-15/16
Date of Award: 16 August 2015
In the ARBITRATION between:
THE DEPARTMENT OF EDUCATION
Union/Employee’s representative: Jan Mars
Union/Employee’s address: P O Box 112
Telephone: 023 317 0916
Telefax: 086 585 1626
Employer’s representative: Jordan Horne
Employer’s address: 3 Carsons Street
Telephone: 023 316 1413
Telefax: 021 425 8612
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) Arbitration was held on 11 August 2015 at the office of the Department of Education in Cape Town. Present was Jan Mars (employee).The Department of Education (DOE) (employer) was represented by Jordan Horne (labour relations officer). The certificate of outcome declaring the matter unresolved at conciliation is on file and is dated 20 July 2015. These proceedings were digitally recorded; an Afrikaans interpreter was present and both parties handed in documents.
(2) Mars requested a postponement before arbitration could commence as the SADTU official, Jaap Adams, was in another case in Worcester and was unable to be at this arbitration. Mars felt uneasy with continuing in the absence of his representative although he was ready to proceed should postponement be denied. Mars requested that should postponement be granted that the case be set down in Ceres as Mars had incurred costs to sleep overnight in Cape Town in order to be on time for arbitration. DOE had no objection to the postponement or to the request to have the matter heard closer to Ceres. After a short break to consider the submissions from both parties I ruled that arbitration would proceed and no postponement would be granted. In arriving at this decision I took into account that SADTU has known about the set down for arbitration for 11 August 2015 since 23 July 2015; should have complied with the rules regarding postponements and made application to the council at least seven days prior to the set down date of arbitration. Mars had incurred costs in order to ensure he was present at arbitration and had confirmed that he was ready for arbitration to commence. Having given my ruling, arbitration commenced.
THE ISSUE IN DISPUTE
(3) I am required to determine on a balance of probabilities whether the employer committed an unfair labour practice in terms of s186 (2) (a) when Mars applied for the position of Head of Department (HOD) and was interviewed by a panel whose composition was unlawful. Elmarius Slinger should not have been on that committee as at the time she was a learner support teacher and not paid by the School Governing Body (SGB). Mars believed that the committee handling the recruitment had their own agenda and had acted unlawfully. Subsequently the post was filled by Marianna Fortune on 1 July 2015.
(4) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), 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 BACKGROUND TO THE DISPUTE
(5) Mars started working for the employer on 1 January 1992; works as an educator post level 1 and claims the employer committed an unfair labour practice when the composition of the recruitment panel was unlawful and seeks that the process be started afresh to ensure a lawfully constituted panel deals with the applications for the HOD post Number 663.
SUMMARY OF EVIDENCE AND ARGUMENT
The employee’s version and testimony was as follows:-
(6) Jan Mars testified that his dispute arose when the DOE were interviewing applicants forboth a temporary and the HOD posts. The panel consisted of two parents; three teachers (including Slinger) and it was clear to Mars that this committee was manipulating the interview process. Also present were representatives from SADTU and DOE. Mars made it clear that he first wanted to raise issues in that parents have to be in the majority in any committee formed; Slinger was not paid by the school and therefore should not be on the committee. The DOE representative Johan Pieters had agreed that as Slinger was not on the school’s pay roll she was not eligible to be on the committee. However, Pieters said that the process would continue despite Mars stating that if the composition of the committee was unlawful – Mars would not be able to continue. Pieters told Mars to refer a dispute but that the process would continue. The next day Mars handed in a report which is on EE bundle pages 4 and 5. Unfortunately there is no date on the report and Mars could not recall the dates. The report was given to Sarel Brown (Institute Management and Governance (IMG)) of the school as well as to SADTU. This was circulated by 6 August 2014. Mars received a call from DOE to confirm that they were in receipt of his grievance and had forwarded it to Juan Benjamin (Director Cape Winelands). The same day Mars was advised that his grievance would be heard on 1 September 2014 at the District Office.In terms of the Determination of the Procedures for the establishment and election of Governing Bodies at Public Schools point 16 (2) states:To nominate an educator candidate, an educator on the establishment of the same school must - (a) lodge with the school electoral officer, not more than seven days prior to the date of the nomination and election meeting, a nomination form in the form of Annexure B, duly completed by the proposer, seconder and educator candidate; or (b) propose an educator as a member of the governing body during the nomination and election meeting. Point 16 is headed “Nomination and election meeting of educator members” which matches the two pages handed in by Mars.Whilst the extract is somewhat meaningless in respect of this dispute, as the points relate to the nominations for the GB, Mars understood it to mean the person must be in the employ of that specific school and then be nominated as a candidate teacher. Mars believed this “white paper” was passed through Parliament and the copy in the bundle was simply updated in February 2015 although exactly the same in content as the previous one. Mars only supplied two pages of the document and was unable to supply further details regarding the document to which he had referred. Mars held that Slinger was not co-opted onto the committee as an educator and Mars had explained this to everyone at the District office. Mars felt compelled to go all the way to show how wrong it had been to retain Slinger on that Committee but his cries had fallen on deaf ears. Mars emphasized that he is an ordinary educator and as such was obligated to be honest.
(7) Under cross-examination Mars explained that he believed Slinger was retained on the committee for ulterior motives; which motives Mars was unable to elaborate on when questioned. Mars said he knew that DOE wanted to appoint Fortune even when they had been filling the temporary post. Mars also applied for the temporary post and suddenly the interviews took place and it was unusual for the SGB to be making these types of decisions. In any event such posts are usually only filled for a period of three months yet in this instance the post was filled for a full six month period. Mars conceded that in terms of scores allocated he did not get scored as he had refused to continue with the interview. Mars never lodged a grievance at that time as it was about a temporary post and he decided to wait for the permanent position. At the interview for the permanent post Mars had not answered any questions as the composition of the panel was incorrect. Mars could not say what points he may have scored had he answered any questions. Mars was told by the shop stewards to disengage from the process due to the unlawful composition of the panel. Mars agreed that the Governing Body (GB) was different to a sifting committee. Referring to s30 (1) (a) and (B) ER bundle page 1 (extract from the Schools: The South African Law of Governance Act 84 of 1996) it was pointed out that another can be co-opted onto the panel/committee by the GB and Mars agreed that that person needed to have some expertise. In the event that Slinger had no experience then the GB would have stated this fact. It was put to Mars that the decision to co-opt Slinger would have been a decision of the GB and would not have involved staff. Mars accepted this but added that they still needed to stick to the law. It was put to Mars that s30 was followed and therefore the decision to co-opt Slinger was lawful. Mars insisted that Slinger was not a teacher representative and he had objected to Slinger prior to the interviews commencing. Mars agreed that he had objected to Slinger when she was nominated by the GB and not when she was appointed to the selection panel for the interview process. Mars agreed he only objected when he saw Slinger at the interview. Mars was reminded that he had said earlier that Slinger was not the appropriate person as staff had not been involved in her appointment to this panel. It was agreed that Slinger is a learner support teacher at the District Office and only works at the same school where Mars is posted. As Slinger works with children who make little progress it was confirmed that she may be regarded as a specialist teacher; although Mars persisted that she should not be appointing/promoting other employees. Mars agreed that Slinger was a teacher representative on the panel but the law states that Slinger should also be on the school’s pay roll. It was put to Mars that there is a difference between a committee and a GB and therefore there could be no fault with the composition of the panel. Slinger was co-opted as the teacher representative to serve on this committee. Mars could not say how he had been prejudiced other than to repeat that he had raised objections to Slinger being on the panel and this was ignored. Mars felt that wrong was wrong. Mars could not say if he would have been successful as he was not scored as he did not take part in the interview.
The employer’s version and testimony was as follows:
(8) Jordan Horne (Labor Relations Officer) (testified that in terms of s30 (1) (a) and (b)of the South African Schools Act84 of 1996 committees may be appointed by the GB. Slinger is on the staff of the District Office and there was nothing wrong or unlawful in co-opting her onto this panel. The contention of Mars that Slinger is not permitted to be on the panel is incorrect. Mars only raised objections regarding Slinger once the interview process had begun. Slinger is now permanently at the school; operates at the school in question although paid by the District Office at the time. The DOE acted lawfully in the establishment of its committees and Mars has confirmed that Slinger has expertise in communication delivery and therefore can be used in the interview process. The DOE never committed any unfair Labour practice and were concerned that Mars was unable to state how he had been prejudiced by the presence of Slinger on the selection committee. Mars withdrew voluntarily from the recruitment process due to his perceived problems with the appointment of Slinger and cannot now claim that he should have been promoted to the post of HOD or even the temporary post.
(9) Under cross-examination Horne confirmed that the “white paper” does not apply to the establishment of committees by the GB but rather refers to the establishment of the GB itself. Mars stated that he accepts everything.
(10) In closing the employer stated that no unfair labour practice had been committed and the composition of the selection panel was not unlawful. Mars, in closing said he was sticking to his point and knows that the DOE were not being honest.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(11) The general rule is that he who alleges a fact must prove it on a balance of probabilities. In unfair labour practice disputes, such as the present case, the onus rests on Mars to prove the unfair practice. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), the Commissioner considered that, "with regard to onus, the principles of our labour law is clear that the initial burden of proof is always on the employee to show that the employer did something, whether it be a dismissal, or a labour practice, and once the existence of that fact is established, the burden of proof moves to the employer to show that what it did was fair". The overall onus always rests on the employee to show the existence of an unfair labour practice. Mars has to prove his case on a balance of probabilities.
(12) Mars is alleging an unfair labour practice, which is defined in Section 186 (2)(a) of the LRA as "any unfair act or omission that arises involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee." In this case Mars claims that the composition of the selection panel/committee was unlawful due to the appointment of Slinger. As a result of this claim Mars did not participate in the interview process for the filling of HOD post number 663.
(13) I am required to determine on a balance of probabilities whether the employer committed an unfair labour practice in terms of s186 (2) (a) when Mars applied for the position of Head of Department (HOD) and was interviewed by a panel whose composition was unlawful. Mars contended that Elmarius Slinger should not have been on that committee as at the time she was a learner support teacher and not paid by the School Governing Body (SGB). Mars believed that the committee handling the recruitment had their own agenda and had acted unlawfully.
(14) Section 2 of the South African Schools Act 84 of 1996 (SASA Act 84) states in the section headed Committees of the governing body in clause 30: (1) A governing body may: (a) establish committees, including an executive committee; and (b)appoint persons who are not members of the governing body to such committees on grounds of expertise, but a member of the governing body must chair each committee. (2) A governing body of an ordinary public school which provides education to learners with special education needs must establish a committee on special education needs. It is evident that Slinger was appointed due to her expertise and was co-opted on to the selection committee in terms of clause 30 of SASA Act 84. There is therefore nothing unlawful in the GB co-opting Slinger onto the selection committee.
(15) The impression gained from Mars was that he should have been promoted into the post as HOD although Mars failed throughout arbitration to verbalise this specific claim. Mars confirmed that he did not undergo the interview having refused to continue; had not been scored and that therefore he was unaware of what he would have scored had he allowed the selection process for himself to continue. Mars was unable to state how he was prejudiced (if at all) due to the presence of Slinger on the committee. Mars gave testimony regarding ulterior motives; hidden agendas and such like but failed to elaborate on why he had these impressions. In the absence of any substantiation of these claims they remain impressions and not facts. Mars steadfastly held that the white paper of which he had possession of two pages was proof that the DOE unlawfully co-opted Slinger onto the selection panel. I have now obtained the complete document of which the extract from Mars comes and find that it relates specifically to the establishment of Governing Bodies and not to the composition of committees established by the Governing Body. No mention was made of who the chair of the committee was as SASA Act 84 specifically states that the chair must be a member of the GB. Mars has failed to prove on a balance of probabilities that the DOE committed an unfair Labour Practice.
(16) Jan Mars has failed to prove on a balance of probabilities that the DOE committed an unfair labour practice in that the composition of the selection committee aligns with the provisions of the South African Schools Act 84 of 1996. Consequently his claim has failed and this case is dismissed.