Case Number: PSES 203-16/17 NC
Province: Northern Cape
Applicant: PSA obo S J THOMPSON
Respondent: Department of Education Northern Cape
Award Date: 5 November 2017
Arbitrator: SHIRAZ MAHOMED OSMAN
Arbitrator: SHIRAZ MAHOMED OSMAN
Case Reference No: PSES 203-16/17 NC
Date of award: 05 NOVEMBER 2017
In the arbitration between:
PSA obo S J THOMPSON Applicant/Employee party
Department of Education – Northern Cape 1st Respondent/Employer party
P T L SMITH 2nd Respondent
C MATTHYS 3rd Respondent
E GROENEWALD 4th Respondent
HEAD OF DEPARTMENT OF EDUCATION-NC 5th Respondent
MEC OF EDUCATION-NC 6th Respondent
DETAILS OF HEARING AND REPRESENTATION:
1. The present dispute between PSA obo S J Thompson (hereinafter referred to as the applicant) and The Department of Education-Northern Cape (hereinafter referred to as the 1st respondent) & P T L Smith (hereinafter referred to as the 2nd respondent) & Matthys C (hereinafter referred to as the 3rd respondent) & Groenewald E (hereinafter referred to as the 4th respondent) & Head of Department of Education (hereinafter referred to as the 5th respondent) & MEC for Education-NC (hereinafter referred to as the 6th respondent) was referred to Arbitration in terms of Section 191 of Act no 66 of 1995, as amended (the Act). At the Arbitration hearing which was scheduled to be held at the Boardroom of the respondent in Upington on 26 July 2017, the applicant was represented by Mr. S Ledibane, of PSA and all six of the respondents were represented by Mr. B Matupi.
2. The matter was partly heard and continued on 18 and 19 October 2017.
3. Due to the conspectus of evidence, the parties were afforded till no later than 26 October 2017. Hence being the last date of the Arbitration.
ISSUE TO BE DECIDED
4. I am to decide whether the respondent had committed an unfair labour practice by not shortlisting the applicant for the deputy principal post in Post no. 201507/0237.
5. Two clear issues emerged at the arbitration which required my decision to determine the above. Firstly in that whether the School Governing Body (SGB) was properly constituted and secondly whether the criteria used by the shortlisting panel to interview no more than 3 candidates were justifiable.
BACKGROUND TO THE DISPUTE
6. The applicant worked at the respondent as an educator.
7. The 1st respondent advertised three posts. Two posts for deputy principals and one post for principal.
8. The applicant applied for all three posts. The applicant was not shortlisted for post no. 201507/0237. He was not invited to the interview. He challenged his non-short listing for the post.
9. The applicant referred his matter to Council. The Conciliation failed and a certificate of non-resolution was issued.
10. The matter proceeded to arbitration in terms of Section 191 of the Act. The commissioner at pre-arbitration made a joinder ruling but failed to join the HOD and MEC of the department of education. I subsequently joined the aforementioned at the last sitting of the arbitration on 19 April 2017. Therefore the matter could not proceed at that stage and had to be subsequently set on another date as per the above in Clause 1.
SURVEY OF EVIDENCE AND ARGUMENT
11. Both parties were afforded the opportunity to present opening statements, call witnesses and submit written closing arguments. The applicant called four witnesses, Mr. Steven John Thompson (the applicant); Ms. Maritza Rehaana du Preez (SGB member); Mr. Xavier Arends (educator); Mr. Johannes Christians (SGB member) to testify. The respondent called three witnesses, Mr. Edwin Barton Groenewald (incumbent in post); Mr. Dawid Leonard de Wee (chief Education Specialist) and Mr. Cecil Bartholomeus Van Rooi (Principal) to testify.
12. A pre arbitration meeting was previously concluded and a signed copy of the minute was handed up. Parties agreed to the amendment of the pre-arbitration minute. Both parties handed up bundles of documents and were accepted to be what they purported to be.
13. Herewith, brief reasons for my decision in terms of Section 138 (7). Should any of the evidence presented at the arbitration or any of the arguments not be reflected hereunder, then it does not mean that it was not considered.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. In Stellenbosch Farmers Winery Group Ltd & another v Martell et Cie & Others 2003 (1) SA 11 (SCA) the Court suggested that to come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. Having considered the credibility of the witnesses in demeanour; the blatant bias; internal contradictions; the improbability of aspects of their testimony; the performance in relation to the applicant’s testimonies, I am persuaded towards the version of the respondent for the following brief reasons.
15. Mr. Thompson testified on his behalf that he had not been shortlisted for the position. He had met all the criteria and was qualified for the position. He was the head of department at the technical school. Pages 64-74 of his bundle reflect his various qualifications. He had also received accolades for his achievements in obtaining outstanding pass rates over his 21 years at the school. He insisted that he was qualified for the position. Since 2004 he had been in a management position.
16. He had previously applied for the deputy principal position on three occasions. At one occasion he was shortlisted but the position was re-advertised. He testified that according to the CAPS (Curriculum and Assessment Policy Statement) the selection committee must comprise of parents and non-teaching staff (support staff). It was the SGB (School Governing Body) that must decide on the selection committee. In order to be a member of the SGB, a parent must have a child at the school. The SGB failed to meet this criterion since the Chairperson of the SGB, Ms. Basson had not had a child at school. There was an absence of support staff on the selection panel. The SGB Chairperson was the Chairperson at the selection committee as well. She had presided over the shortlisting. He was the only candidate from his school that had applied for the position.
17. At cross-examination Mr. Thompson testified that indeed experts who were not parents may be appointed as SGB members. He insisted that Ms. Basson was not a legal guardian of any learner at the school. Indeed Mr. Thompson conceded that he had not scored more than the three candidates who were shortlisted.
18. Mr. Thompson’s testimony is accepted as it is indeed credible however it is naïve for him to suggest that he should have been shortlisted because he met all the criteria. He did not dispute that he had not scored amongst the top three candidates but insisted that he should have been given an opportunity to prove his worthiness. Seemingly, Mr. Thompson relies on the fact that the SGB was not properly constituted. It is not the 1st respondent’s suggestion that Mr. Thompson was not qualified to be shortlisted. The 1st respondent’s case is that there was no unfairness in the shortlisting process and that not all the candidates were entitled to be shortlisted.
19. Ms. Du Preez testified for the applicant that she is a member of the SGB since 2011. The SGB term is two years. Members are appointed by parents. The SGB comprises of parents, teachers and support staff. A parent must have a child at school to qualify as SGB members. All the SGB members had children at school at the time of these posts were contested. However, the Chairperson of the SGB at the time was Ms. Basson, till her child had finished school in 2014. Ms. Basson continued as the Chairperson of the SGB till 2015. Ms. Du Preez had complained about the situation in respect of Ms. Basson’s continued membership of the SGB in correspondence to the 1st respondent, dated 25 March 2015. Ms. Basson left the SGB in 2016.
20. She continued to testify that the SGB chooses the selection panel. Ms. Basson had participated in the selection panel. Ms. Du Preez insisted that if a child left school, then that parent is a member of the SGB till the end of that year only. The parent must withdraw at the beginning of the following year. It was not a legitimate panel if a member of the panel is not on rightfully elected on the SGB. She had received a response from the 1st respondent that Ms. Basson is a guardian of a child who had attended the school. At that time the parent was still the legal guardian. The 1st respondent did not provide any evidence that Ms. Basson was the guardian of a child that had attended the school. In 2016, the parent removed the child from school to be taken to another school. After shortlisting the panel reports back to the SGB.
21. At cross-examination Ms. Du Preez read into record the definition of a Parent in terms of the South African Schools Act, 1996. The Act reads as follows: Parent means: a) the biological or adoptive parent or legal guardian b) the person who is legally entitled to custody of a learner; or c) the person who undertakes to fulfil the obligations of a person referred to in paragraphs a) and b) towards the learner’s education at school. This definition shall be explored in the testimony of the Chief Education Specialist’s, Mr. De Wee. He is indeed more qualified to testify in regard to the issue as to who is authorised to act on behalf of a learner.
22. Ms. Du Preez’s testimony was less sophisticated as to the locus standi of Ms. Basson. She insisted that the biological mother of the learner was still alive. It later emerged that the learner was Ms. Oliphant’s child. She eventually conceded that Ms. Basson had indeed enrolled Ms. Oliphant’s child at the school. The voters roll for the SGB was extrapolated from the persons who register children at school. Ms. Du Preez had failed to register a complaint with School Electoral Officer in respect of her allegations about Ms. Basson.
23. It appears that indeed Ms. Du Preez has a motive for her unhappiness with Ms. Basson’s tenure as the SGB Chairperson. In any event she was only able to testify to the extent that Ms. Basson could not be the guardian of the child since the child’s mother was alive. A simplistic approach I may suggest. Nothing further could come of Ms. Du Preez’s testimony.
24. Mr. Arends, a shortlisting panellist testified for the applicant much to the applicant’s disfavour. He testified that there was no unfairness in the applicant not being shortlisted. The shortlisting panel had set the criteria before any of the applications could be opened. They scored all the applications and decided to interview three of the six applicants for the position. The three applicants that were shortlisted had had the three best scores whilst the other three applicants had all had the same scores equally. These applicants were not shortlisted. The 1st respondent’s policy had indicated that not more than 5 applicants be shortlisted. Since there was a lack of time, they chose the top three candidates to be shortlisted for the interview.
25. At cross-examination Mr. Arends confirmed that they had had applied the same criteria for all the candidates. Nothing further emerged.
26. I am inclined to accept the testimony of Mr. Arends unconditionally. He proved to be an honest and credible witness, with no interest in the present dispute or at the shortlisting save to shortlist the most suitable candidates without unfairness to any of the applicants that applied for the position. Indeed the criterion used by the shortlisting panel is deemed to be fair as there is no suggestion to the contrary. The shortlisting panel decided that they would shortlist the three applicants with the highest scores and leave out the three that had equal scores. I am of the opinion that this decision was not arbitrary or unfair nor capricious. It was logical in my opinion.
27. Mr. Christians testified for the applicant that Ms. Basson was not the legal guardian and that there was no court order to suggest same. He insisted that he was not invited to SGB meetings and therefore the SGB meetings were not properly constituted. Seemingly he had an issue with the SGB.
28. At cross-examination it emerged that the applicant had stormed out of the SGB meeting without any reason or excusing himself from the meeting. This meeting addressed the shortlisting of the candidates for the disputed position. It also emerged that Mr. Christians was cautioned that if he did not attend meetings he would lose his appointment on the SGB. Mr. Christians was appointed as a member of non-teaching staff on the SGB.
29. Mr. Christians could only suggest that Ms. Basson was not entitled to be an SGB member as she was not a legal guardian of Geraldo, as declared by a Court of law. Again, a simplistic and uninformed position held by the applicant’s witness. Apart from the assertions of the testimonies of Mr. Thompson, Ms. Du Preez and Mr. Christians there was no tangible evidence that Ms. Basson was not mandated to be a guardian of the learner in school, Geraldo Oliphant. All these testimonies made sweeping allegations with assertions that the mother of the learner was alive or that there was no court order to mandate Ms. Basson as the guardian of Geraldo Oliphant.
30. I am not persuaded that the applicant was able to establish it’s burden of proof that the respondent had committed an unfair labour practice. The conspectus of the applicant’s testimony is that more than three candidates should have been given the opportunity to be interviewed for the disputed post and that Ms. Basson had no locus standi as member of the SGB.
31. Moreover it was Mr. Arends testimony, the applicant’s own witness who testified that there was no unfairness in the shortlisting process which sealed the applicant’s case in this regard.
32. Mr. Esterhuisen testified for the respondent about his qualifications and suitability. Parties subsequently agreed that the testimony of the witness was not relevant to the dispute. Therefore I am not inclined to regurgitate his testimony.
33. Mr. De Wee testified for the respondent and outlined the constitution of an SGB. Indeed the1st respondent received a dispute from Ms. Du Preez about the Chairperson of the SGB not being a parent. Mr. De Wee insisted that according to the voters roll, Ms. Basson had enrolled Geraldo Oliphant and as per a letter submitted by Ms. Oliphant the biological mother of the learner, Ms. Oliphant had given authority to Ms. Basson to oversee to the education of the child as she was often away from home. He insisted that this authorisation had complied with the definition of parent as per paragraph c) of the definition which provides that the person who undertakes to fulfil the obligations of a person referred to in paragraphs a) and b) towards the learner’s education at school. Importantly he qualified the reasoning behind the definition and submitted that this definition was to provide for the many parents who had to leave their children in the care of relatives or friends because they worked far from home. This is a reality not only in South Africa but many countries around the world. Ms. Oliphant had written a letter to indicate that Ms. Basson would take care of her son’s education. This was not disputed by the applicant.
34. Nothing emerged at cross-examination. I am inclined to concede to Mr. De Wee’s testimony and informed interpretation of paragraph c) of the definition of parent in terms of the South African School’s Act. It was not disputed that Ms. Oliphant had not handed over care of her son’s education to Ms. Basson. Therefore I must conclude that Ms. Basson was indeed a legitimate member of the SGB.
35. Mr. Van Rooi, the Principal of the school at the time testified and confirmed the testimony of Mr. Arends. He claimed that the criterion used was the same for all candidates. The top three scoring candidates were shortlisted for interviews for the disputed position and that there was no unfairness in the process of shortlisting. I am persuaded towards the testimony of Mr. Van Rooi as he had no personal interest save for the best candidate to be appointed for the disputed position.
36. Nothing emerged at cross-examination.
37. Mr. Van Rooi proved to be a credible witness. His testimony was not challenged and therefore must be accepted.
38. In deciding whether the respondent had acted fairly I am persuaded towards the approach in DeNysschen v GPSSBC & Others (2007) 28 ILJ 375 (LC) where the Court set out the criteria to be considered in deciding fairness in promotional disputes including but not limited to whether the employer’s decision was arbitrary; capricious or unfair; whether the employer had failed to apply it’s mind; whether there was substantial reason for the employer not to promote.
39. I find that there was no capricious or unfair conduct on the part of the 1st respondent. The shortlisting panel had not failed to apply it’s mind nor was the decision taken by the 1st respondent not to shortlist the applicant as arbitrary. Moreover, the SGB was properly constituted.
40. Hence there is nothing before to suggest that the applicant has made a case.
41. The 1st respondent had not committed an unfair labour practice.
Signed at Upington on this 5th day of November 2017
SHIRAZ MAHOMED OSMAN