Case Number: PSES593-16/17EC
Province: Eastern Cape
Applicant: NAPTOSA OBO GOBEY SDL
Respondent: 1st RespondentDEPARTMENT OF EDUCATION EC, 2nd Respondent JOHN DRAAI, 3rd SCHOOL GOVERNING BODY (“SGB”),
Issue: Unfair Labour Practice - Probation
Award Date: 16 September 2017
Arbitrator: L. CHAROUX
Arbitrator: L. CHAROUX
Case Reference no: PSES593-16/17EC
Date of Award: 16 September 2017
In the arbitration between
NAPTOSA OBO GOBEY SDL APPLICANT
DEPARTMENT OF EDUCATION EC 1ST RESPONDENT
JOHN DRAAI 2ND RESPONDENT
SCHOOL GOVERNING BODY (“SGB”) 3RD RESPONDENT
OF LIVINGSTONE HIGH SCHOOL
HOD DEPARTMENT OF EDUCATION EC 4TH RESPONDENT
MEC DEPARTMENT OF EDUCATION EC 5TH RESPONDENT
Employee’s representative: Mr. A Adams of NAPTOSA
Telephone: 0837201354; e-mail: email@example.com
Employer’s representative: Mr. C Pillay
Telephone: 0824339831; e-mail: firstname.lastname@example.org
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down for an arbitration hearing on 29 March 2017. The Applicant was represented by Mr A Adams of NAPTOSA. Mr C Pillay, the Assistant Director Labour represented the Department of Education. Both parties handed in a bundle of documents, the Applicant’s bundle comprising of 131 pages, the Respondent’s bundle comprising of 125 pages. The Applicant had submitted an Unfair Labour Practice – Promotion Dispute with the Council on 7 December 2016. The Applicant applied for a Principal’s position at the Livingstone High School. It is common cause that the Applicant was recommended by the School Governing Body (“SGB”) to be appointed to the position of Principal at the Livingstone High School, however the Head of Department (“HOD”) of the Province appointed the Second Respondent instead. The Applicant requested that the appointment of the Second Respondent be set aside, and he be appointed in the Principal’s position at the school. Mr Draai, the Second Respondent, was not present at the arbitration hearing scheduled for 29 March 2017. As it appeared from the documentation that Mr Draai was not notified properly about the setdown of the matter I postponed the case in order for Mr Draai to be properly notified of the hearing. The parties agreed that the matter be rescheduled for 8 May 2017.
2. On 8 May 2017, the parties advised me that they did not think it was necessary to call witnesses and that they would prepare written heads of argument. After I received the written heads of argument I requested the ELRC to set the matter down again for 10 July 2017 to clarify certain aspects of the written arguments presented by the parties.
3. After meeting with the parties on 10 July 2017 I was of the view that the Head of Department should testify regarding her reasons for choosing Mr Draai instead of Mr Gobey for the position of Principal at the school. The parties agreed that the only issue in dispute is whether the HOD exercised her discretion fairly in terms of Section 6 (3) (f) of the Employment Educators Act 76 of 1998 as amended when appointing Mr Draai instead of Mr Gobey , who was the Governing Body’s first choice.
4. On 21 July 2017, I issued a ruling ordering Mr. Khaya Ngaso, the Cluster Chief Director who recommended the appointment of Mr Draai instead of the Applicant to appear at the arbitration hearing which was rescheduled to be heard on 29 August 2017. Mr. Ngaso however failed to appear on the day. I therefore continued writing my award without his input.
COMMON CAUSE FACTS
5. At the beginning of February 2016, the Eastern Cape Education Department (“Department”) advertised for applications to fill various vacant principals’ posts in its area. Included amongst these was the vacancy for the position of principal at the David Livingstone High School.
6. Seven applicants applied. Two of those, who did not comply with the requirements stated in the advertisement were sifted out by the interview committee of the SGB. The remaining five were short-listed for interviews by an interview committee of the SGB specifically constituted for that purpose in accordance with directives from the Department. The interview committee was required to put a series of questions to each candidate that were aimed at determining the candidate’s ability in twelve prescribed categories. Every committee member was then called upon to score the candidate’s performance in each category. In the end, these scores were added up and the average mark calculated. Following upon its assessment of the five candidates the interview committee made its proposals to the SGB. These were adopted by the SGB and conveyed to the HOD on 22 June 2016. The SGB confirmed as follows to the HOD:
1) The recommended candidate was Mr. S.D.L Gobey.
2) The motivation for Mr Gobey’s appointment was that scoring was used and Mr Gobey was found most suitable based on scoring. Mr Gobey scored 31 points.
3) The other candidates scored 17,30,27 and 24 respectively. (Mr Draai scored 30 points)
Pages 13 – 16 of Bundle “A”
7. On 3 October 2016, Mr. Khaya Ngaso, the Cluster Chief responded to the SGB’s recommendation by requesting the SGB to revisit their decision to recommend Mr Gobey.
Mr. Ngaso gave the following reasons for his request to the SGB:
1.Mr Gobey is a post level 1 educator with no qualifications in management and administration.
2. Mr Gobey is not qualified to teach at a high school as he did not do a PGCE after his BA degree.
Page 86 of Bundle “B”
8.The SGB responded to this letter stating that they still recommend Mr Gobey and that they followed the required procedure correctly.
9. It is common cause that the Applicant did not need a qualification in management and administration and that he did qualify to teach at a high school. Mr Gobey had in fact been teaching at Livingstone High School for the past 34 years.
10. On 7 October 2016, a letter was issued and signed by the Cluster Chief Director recommending Mr Draai instead of Mr Gobey for the position of Principal at the Livingstone High School
11. On 20 October 2016 a letter was issued by the Acting District Director stating that the HOD decided to appoint Mr Draai as principal. The reasons cited was that Mr Draai was the most suitable candidate based on his management and administrative experience.
Page 89 of Bundle “B”
12. At the arbitration hearing when the matter was initially scheduled on 29 March 2017 the parties agreed to the following facts:
12.1 The SGB recommended the Applicant as the best candidate.
12.2 The SGB’s recommendation was based on scoring.
12.3 Gobey qualified to teach at a High School.
12.4 A qualification in management was not a prerequisite for the position.
12.5 The Applicant met all the requirements for the position.
12.6 The Applicant was eligible to be shortlisted.
12.7 The only issue that needs to be decided is whether the HOD was entitled to deviate from the SGB’s list of appointable candidates, acting on its authority to appoint the 2nd recommended candidate Mr. Draai instead of their 1st recommended candidate Mr Gobey. The SGB’s decision was taken using scoring and it was confirmed that Mr. Gobey scored 31 points and Mr. Draai scored 30 points.
13. The letter of 3 October 2016 encapsulates the reasons why Mr. Gobey was not appointed to the Principal’s position as these reasons influenced the decision of the HOD not to appoint Mr Gobey. The parties agreed that the reasons provided by Mr. Ngaso in his letter of 3 October 2016 why Mr. Gobey did not qualify to be the Principal of the Livingstone High School were factually incorrect.
14. The decision of the HOD to appoint Mr Draai instead of the Applicant is irrational as she relied on erroneous information to come to the conclusion that Mr Draai should be appointed instead of the Applicant.
15. The rationale why the employer endorsed Mr Draai instead of Mr Gobey is primarily that the Employer sought a candidate with proven managerial and administrative experience as per the advert which states that administrative and managerial experience is required for the post. Mr Draai was the Employer’s preferred candidate because he was already a principal.
16. The Applicant is a post level 1 Master Teacher at present. The process after that before reaching a principal position is that of a HOD (which the Applicant has not yet progressed to), a Deputy Principal (which the applicant has not progressed to) and a principal (which Mr Draai was).
ANALYSIS OF ARGUMENTS
17. It is clear from the letter dated 3 October 2016 that Mr. Ngaso was under the erroneous impression that Mr Gobey did not qualify for the position of principal at the Livingstone High School.
18. The question is whether the error made by Mr Ngaso influenced the HOD in her decision to appoint Mr Draai instead of the Applicant although that was not the reason the HOD provided for appointing Mr Draai instead of the Applicant. The HOD’s reasons why she decided to appoint Mr. Draai was because he was the most suitable candidate based on his management and administrative experience.
19. As the HOD did not testify I have no direct evidence before me confirming that the HOD indeed chose Mr. Draai instead of the Applicant because of the errors made by Mr. Ngaso. I will therefore have to decide on a balance of probabilities in this regard.
Applying the law to the facts
20. The parties are in agreement that the person with the highest score is not necessarily the best and most suitable candidate.
21. The parties are in agreement that the authority to appoint remains with the HOD and that in terms of Section 3(f) of the Employment Educators Act 76 of 1998 as amended the HOD has a discretion to choose another person from the list, and not necessarily choose the person recommended by the SGB.
22. In terms of the judgment in Head of the Western Cape Education Department and Others v Governing Body of the Point High School and others 2008 (5) SA 18 (SCA) the HOD must exercise his or her discretion in a reasonable manner. The Applicant is, not without reason, concerned that the HOD did not make a reasonable and rational decision because of the errors made by Mr. Ngaso.
23. As a Commissioner, my duty is to establish whether the HOD’s decision to appoint Mr Draai and not Mr Gobey was a reasonable decision.
24. If the Applicant was not appointed because he was erroneously excluded that would lead to an unreasonable and therefore unfair decision.
25. On a balance of probabilities, the HOD took into consideration the erroneous recommendation made by Mr Ngaso. The Applicant has demonstrated procedural unfairness in that the process followed was flawed.
26. I am of the view that the only fair way to determine the dispute would be for the HOD to revisit the appointment of Mr Draai taking into consideration the errors made by Mr. Ngaso. This does not mean that the HOD will necessarily change her mind, but it would have the effect that Mr Gobey would be given a fair chance to compete for the position.
27. When considering the appropriate relief, I took into consideration that it is the employer’s prerogative to employ who they believe is the best candidate for the job. I am also aware that my decision should have the least possible disruptive effect on the learners.
28. The HOD is directed to reconsider the appointment of the principal of Livingstone High School taking into consideration that Mr Ngaso committed an error when finding that the Applicant did not qualify for the position.
29. The HOD must submit her decision within 6 weeks from the date of this award.
30. Mr Draai must remain in his position as Principal of Livingstone High School pending the outcome of the HOD’s decision.
SIGNED AND DATED ON 16 SEPTEMBER 2017
ADVOCATE L CHAROUX