PSES413-18/19WC
PSES413-18/19WC
Award Date:
12 July 2019
Case Number: PSES413-18/19WC
Province: Western Cape
Applicant: NAPTOSA obo KEVIN RONALD MULLER
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 12 July 2019
Arbitrator: Jacobus Simon Du Plessis
Case Number: PSES413-18/19WC
Commissioner: Jacobus Simon Du Plessis
Date of Award: 12 July 2019
In the ARBITRATION between
NAPTOSA obo KEVIN RONALD MULLER
(Union/Applicant)
And
WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)
Employee’s representative: Mr Faez Tassiem
Applicant’s address: Rondebosch
7700
Telephone: 021 686 8521
Telefax: 021 689 2998
E-mail: faezt@naptosa.org.za
Employer’s representative: Mr Frederick Scholtz
Respondent’s address: Western Cape Education Department
Private Bag X9114
Cape Town
8000
Telephone: 021 467 2387
Telefax: 021 412 8506
E-mail: bergsighead@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was convened on 22 February 2019, 3 and 4 April 2019 and 27 June 2019 to consider the unfair labour practice dispute brought by the Applicant, Mr Kevin Ronald Muller against the Respondent, Western Cape Education Department.
2. The Applicant was present and represented by Mr Faez Tassiem, a duly appointed official for the National Professional Teachers Organization of South Africa (NAPTOSA); a trade union registered in accordance with the Labour Relations Act 66 of 1995 as amended. The Respondent was represented by Mr Frederick Scholtz, a duly appointed Employee Relations Officer for the Respondent.
3. The parties have submitted bundles of documents into evidence and called witnesses to testify in support of each case. The hearing was conducted in English and Afrikaans and the proceedings were fully explained to the parties. Hand written notes were kept and the proceedings were digitally recorded.
ISSUE TO BE DECIDED
4. I must determine whether the Respondent has committed an Unfair Labour Practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (LRA). I must also decide on the appropriate relief.
BACKGROUND TO THE DISPUTE
5. The Applicant is a teacher by profession for 37 years of which he currently occupied the position of Head of Department; a position he holds for 19 years. A vacancy for the position of Deputy Principal becomes vacant at the school Bergsig Primary which position was advertised under the post identification code, “Post 88” in Vacancy List 1/2017. The Applicant together with three other candidates applied for the position.
6. The candidates were Mr Anthony Damons, Ms Elsabe Jacobs, Mr Kevin Ronald Muller and Ms Katie Abrahams. The last mentioned candidate withdrew from the interviewing process leaving the first three candidates in order of preference according to the interviewing score results as follows: Mr KR Muller (72. 72%); Ms Elsabe Jacobs (67.95%) and Mr Anthony Damons (67.27%) to be interviewed.
7. As a result of the highest scores being allocated to the Applicant, he was recommended by the School Governing Body (SGB) as the preferred candidate to the Department. Despite having recommended as such, the Department of Education appointed the second best candidate into the position. The Applicant seeks to be appointed into the position retrospectively to the date of the appointment if found that the Respondent has committed an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
THE APPLICANT’S CASE
8. The Applicant testified under oath that he is a Departmental Head for 19 years. He is a teacher for 37 years. He confirmed that the position for Deputy Principal was advertised for which he applied for. Reading the qualification criteria from the advertisement, he realized that he complied with all the said criteria set out in the advertisement These were as follows: Applicants, in their curriculum vitae’s, are required to focus on the following criteria and to mention their specific applicable qualifications, experience, responsibilities, experience on the specific subject level, role and number of years in the teaching profession. The criteria was set as follows:
• Applicable Qualifications is a requisite;
• Experience on the level of Head of Department and or Deputy Principal;
• Record of excellent administrative and organizational skills;
• Participation in Assessments;
• Proof of experience and successes with regards to the handling of conflict amongst personnel and learners;
• Specific behavioral difficult learners;
• Knowledge of Disciplinary Procedures, Setting up of and Implementation of Disciplinary Policies;
• Collection Analysis and Presentation of Statistics;
• Experience in the monitoring and Providing of Leadership with regards to curriculum requirements;
• Curriculum leadership which includes amongst other things, support planning, classroom work and practice, the increase of literacy and numeric levels. Teaching of the curriculum.
• Proper understanding of the current curriculum and proof of training is a requirement.
• Experience and understanding of Promotion and Progress for primary schools. Knowledge of CEMIS. Knowledge of Teacher Law Legislation, Regulations and Policies.
• Computer literacy in at least Microsoft Word, Excel, PowerPoint and Khanya Programs. Proper knowledge of GGBS processes. Knowledge of PPBOS processes. Organizing of projects (functions) and involvement with extramural activities.
9. No mention was made about the Foundation Phase as a prerequisite for the filling of the vacancy. Foundation Phase qualification was the requirement after the interviews were completed. The Applicant is of the view that he meets all the requirements set out in the advertisement while his interviewing scores were higher than his competitors.
10. The Applicant referred to page 24 in bundle “A” (Respondent’s bundle) which is the minutes of the School Governing Body meeting held 5 June 2018 at Bergsig Primary School point 8. He read into the record the portion that deals with the (Federation OD Association of School Governing Bodies) FEDSAS position on why the Department has the prerogative to make an appointment. “Mr Prins awaiting the feedback from FEDSAS. Mr Tallie (Representative of FEDSAS) provided legitimate reasons for why the Department of Education made the appointment. The School Governing Body, in principle, stuck to their decision but they however felt that the Department of Education must handle the matter in their own way”. The Applicant testified that his understanding of this advice is that the Department was at liberty to deal with the appointment in their own way even though the SGB has made their decision.
11. He said he requested the minutes of the meeting when he lodged a grievance after he come to know that despite having been the best candidate and meeting all the requirements, and being recommended by the SGB, that he was not appointed as per the SGB recommendation. He was informed by Mr Anton Titus, the Circuit Manager that the SGB has approved the appointment of the second best candidate; Ms Elsabe Jacobs and that the school will appoint somebody with foundation phase training and experience to address the curriculum needs of the school. This he felt was unfair towards him and it amounts to an unfair labour practice. He has been prejudiced.
12. He said he becomes aware of the appointment of Ms Jacobs through the vacancy list that was released while he was already congratulated by the previous SGB and the former principal and deputy principal, Mr Willie Freeks and Brandon Griffin already indicated to the Department with the 2018 year plan that they continue with the Applicant as Deputy Principal. This, the Applicant view as a reasonable expectation of his appointment.
13. He was informed by Titus that the school was going to appoint a person with foundation phase training and experience whereas no mention about such requirement was made in the advertisement. He said he knows how the school determines curricular needs. They would call an SMT meeting and would discuss possible needs upon which they would consult the School Governing Body on the different curriculum needs to be implemented at the school. There was no such process prior to making the decision about the curriculum needs.
14. The Applicant read page 10 in the Respondent’s bundle “A” into the record. This is the email send by the Chairperson of the Governing Body, Mr Lionel Prins to Mr Anton Titus in Afrikaans as follows: “In sake Adjunk Prinsipaal Aanstelling. Ons telefoniese gesprek in bovermelde aangeleentheid het betrekking. Die SBL van Bergsig Primere het tydens sy vergadering op Dinsdag 5 Junie 2018 soos volg besluit.
(1) Dat dit in belang van die skool in sy werksaamhede die WKOD mag voortgaan met die aanstelling van Me Jacobs as Adjunk Prinsipaal.
(2) Dat the WKOD kennis neem dat die SBL steeds op record plaas dat hy (SBL) nog steeds gegrief voel mbt die feit dat Mnr Muller die eerste keuse was van die SBL, maar ook bewus is dat die prerogatief die van die WKOD is”.
15. When asking to compare pages 10 and 9 (starting from page 10 down to page 9) with the typed version of the minutes of the meeting of 5 June 2018. The Applicant’s response was that he understood the SGB position to be that they (SGB) distance themselves from the WCED decision to appoint the second best candidate based on her foundation phase experience which he believe, was not mentioned in the advertisement as a criteria. He interpreted the email as such, from the stance taken by the SGB that they ‘still feel aggrieved’ about the fact that their choice of preference was not accepted by the WCED.
16. Prins’ email stated that the appointment as per the WCED decision was in the interest of the school and that he (Applicant) felt that the SGB was therefore put under pressure by Titus who acted on behalf of the WCED. Titus who was also selected by the WCED to act as the resource person on its behalf, and that he (Titus) was involved with the appointment process from the start; i.e. short listing of the candidates, interviewing process as well as adding additional criteria to the advertisement which becomes a concern. The Applicant therefore is of the opinion that Titus might have unduly influenced the decision of the SGB and therefore his actions amounts to perceived biasness. The purpose of the interviewing process is to get the best candidate appointed. He has proven to be the best candidate, he met all the requirements set out in the advertisement and no mention was made about the foundation phase as part of the curriculum needs of the school and as prerequisite to be appointed into the position.
17. The role of the ‘Resource Person’ was to observe and give guidance where necessary. He should not have been too deeply involved in the process as Titus was. During the grievance meeting, he (Titus) acknowledged that he was the one taking the decision to rather appoint a person with foundation phase experience as opposed to an intermediary phase person such as the Applicant. If foundation phase was a core criterion in the advertisement, he would not have applied for the position.
18. During cross examination the Applicant acknowledged the WCED’s prerogative to confirm any one of three candidates in the recommendations list, provided that the process was fair. The recommendations form that are submitted by the School Governing Body dated 19 September 2017 (Page 7 of Bundle “A”) reflects names of the candidates in order of preference as follows: Muller K; Jacobs E and Damons A while page 4 (minutes of the meeting of 22 June 2017) contains the names of the candidates in order of preference and according to the highest scores awarded to the candidates in the interview as follows: K Muller (72.72%); E Jacobs (67.95%) and A Damons (67.27%). He said because he was rated the highest means that he was the best and suitable candidate for the post. However, he is aware that the WCED has the right to also consider other competing candidates.
19. It was put to the Applicant that the WCED did consider the application of another candidate on the strength that this candidate has foundation phase experience which according to the WCED is what the school needs to be in line with the school’s curriculum requirements. Page 8 in Bundle “A” is a letter addressed to the former chairperson of the School Governing Body Mr M Loksen, by the Head of Education on 6 April 2018 stressing the following: (the letter was read into the record) “Upon scrutiny it was discovered that Bergsig Primary already appointed a Deputy Principal professionally qualified in the intermediate and senior phase. In order to enhance organizational coherence and curriculum delivery it will be more beneficial for the school to rather appoint another Deputy Principal professionally qualified the Foundation phase. The first nominee, Mr K Muller is professionally qualified in the intermediate and senior phase. On recommendation from the District office, it is the Department’s intention to appoint the second nominee, Ms E Jacobs, for appointment to the post as she is professionally qualified in Foundation phase”. The Applicant confirms that the letter must have been served on the SGB and as such could be regarded as having consulted with the SGB.
20. The letter also refers to “recommendation by the District office” referring to Mr Anton Titus, the Resource person. The Applicant disputes that page 27 in bundle “A” is the correct version of the minutes of the SGB meeting on 5 June 2018. He said that this version (page 27 in bundle “A”) is not the correct version and there are two sets of minutes for the meeting held on 5 June 2018 which indicates that the second set on minutes was adjusted to suite the WCED decision above the recommendation of the SGB. He obtained the correct version of the minutes from the SGB after the grievance meeting. The difference in relation to paragraph 8 in both sets of minutes is that page 27 includes an additional paragraph about the WCED’s decision to appoint the second best candidate on the strength that appointing a person with Foundation Phase experience was in the best interest of the school whereas the initial set of minutes, (page 24) only contains the FEDSAS input into the enquiry made by the chairperson of the SGB as to the WCED’s prerogative to make any appointment among the nominees in the recommendations list. The Applicant therefore disputes the minutes and argues that the decision was not this of the SGB but that the SGB was under pressure to approve the WCED’s decision to appoint a person with Foundation Phase experience.
21. According to the email dated 26 June 2018, addressed to Prins, chairperson of SGB (pages 9 and 10 of bundle “A”); there was a telephone discussion between Titus and Prins about the WCED choice of appointment prior to the appointment of the second best candidate’s approval by the SGB. It therefore indicates that the SGB have succumbed under pressure from Titus. The Applicant was asked to read into the record, certain extracts from the Employment of Educators Act 76 of 1998 as amended as follows starting from page 14 bundle “A”, chapter 3 (Appointments, Promotions and Transfers) section (6) “Powers of employers –
(1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator –
(a) In the service of the Department of Basic Education shall be made by the Director General; or
(b) In the service of a provincial Department of Basic Education shall be made by the head of Department.
(2) Subject to the provisions of this chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be made in accordance with such procedure and such requirements as the Minister may be determine.
(3) (a) Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educators establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned”.
22. According to this extract of the Employment of Educators Act 76 of 1998, the Head of Department may deviate from the normal procedures and make appointments. The Applicant re-emphasized that the Department has the right to make appointments as long as it is done in a procedurally fair manner. There was no fair procedure followed which comes to an unfair labour practice. As far as the Applicant is concerned, no mention was made about the Foundation phase as core criteria. Even in the interviewing process, no questions were asked about the Foundation Phase. Titus, as the Resource Person was involved from the shortlisting process to the interviews upon which he also took the decision that it was in the school’s best interest to appoint someone with Foundation Phase experience and Professional Qualification. The Applicant said that after the grievance meeting, he and the representative went back to the school to enquire whether Ms Jacobs’ appointment was approved by the SGB. The former principal Mr Willie Freeks’ response to that was that no such decision was made in any SGB meeting. This was when he asked for a copy of the minutes of the SGB meeting that was held on 5 June 2018 where the appointment of the Deputy Principal was discussed.
23. Mr Riedwaan Ahmed (“Ahmed”) testified under oath during a teleconference on 3 April 2019 that he is a Senior Executive Officer for NAPTOSA in the Western Cape. He comes from a teaching background, with qualifications in labour law up to his Master’s Degree in Law. He is also a CCMA accredited commissioner. Ahmed who was called as an expert witness testified about his own interpretation and understanding of section 6 Chapter 3 of the Employment of Educators Act 76 of 1998 (EEA). This section deals with the powers of the Head of Education. Ahmed recognizes the discretionary powers of the Head of Department which according to his understanding is limited to the Employment Equity in as far as employment of educators are concerned of which the focal points are “equity; redress and representivity”. There is no other deviation accept for employment equity purposes.
24. The recommendation of three nominees was part of the amendments to the EEA. Achmed read into the record section 6 (3) (b) as follows: “In considering the applications, the governing body (SGB) or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to-
(i) The democratic values and principles referred to in section 7 (1);
(ii) Any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators;
(iii) Any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators which the candidate must meet;
(iv) A procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators; and
(v) Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body”
25. The EEA goes further to say that section 6 (3) (c) states that the “Governing body must submit , in order of preference to the Head of Department, a list;
(i) at least three (3) names of recommended candidates; or
(ii) fewer than three candidates in consultation with the Head of Department”.
26. Section 6 (3) (d) states that “when the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making an appointment, ensure that the governing body has met the requirements in paragraph (b)”.
27. He said reading the EEA in context the intentions of the legislator are clear that the deviation only applies to Equity and nothing else. The EEA further gives clear meaning to the role of the governing body. His understanding of paragraph (f) “despite the order of preference in paragraph (d), the Head of Department may appoint any suitable candidate on the list.
(g). if the Head of Department declines a recommendation, he or she must-
(i) consider all the applications submitted for that post;
(ii) apply the requirements in paragraph (b) (i) to (iv); and
(iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.
28. Ahmed testified that it is highly irregular for the Department to appoint somebody on the strength criteria which was not mentioned in the advertisement. Foundation phase experience was not part of the criteria mentioned in the advertisement because this is not covered by the EEA. The Department could only exercise its discretion when called upon to consider the three categories of Employment Equity (Equity; Redress and Representivity) which in this particular instance was not the case. If the Department has a need of adding additional criteria, it has to be done in consultation with the trade unions and parties involved as per Resolution 5 of 1998.
29. Ms Philloreen Arendze (“Arendze”) testified under oath that she is the teacher component member of the School Governing Body; the Secretary of the SBG. Her role as the Secretary is to compile the minutes and handle all the correspondence addressed to or from the SGB, issuing of notices of meetings etc. She a post level one English teacher for grade five. She served as the Secretary of the SGB from March 2018. She was not involved with the filling of the position of the Deputy Principal but the previous governing body was involved. She is aware of the letter (page 8 in bundle “A”). This is the letter addressed by the Directorate: Recruitment and Selection dated 6 April 2018. The letter was hand delivered by Mr Anton Titus and according to the letter Mr Kevin Muller was the governing body’s first choice of preference but it was not approved by the Department.
30. Pages 24 and 27 in bundle “A” refer to the same SGB meeting which was held on 5 June 2018 at the school premises. She reads page 24 paragraph 8 (the second sentence) into the record in Afrikaans as follows: FEDSAS: “Mnr Prins wag nog vir terugvoering. Mnr Tallie voer ligitiewe redes aan hoekom Departement aanstelling gedoen het. Beheer Ligaam bly in beginsel by hul besluit. Departement moet self afhandel”. (My translation- English) Mr Prins is awaiting the feedback from FEDSAS. Mr Tallie raises legitimate reasons for why the Department has the right to make appointments. The School Governing Body, in principle maintains its position. The Department must finalize this matter on its own”.
31. Arendze also read page 27 paragraph 8 (third sentence) into the record as follows in Afrikaans: “Dat die WKOD kennis neem dat the SBL steeds op record plaas dat hy (SBL) nog steeds gegrief voel met betrekking tot die feit dat Mnr Muller die eerste keuse was van die SBL, maar ook bewus is dat die prerogatief die van die WKOD is”. (My translation-English) The WCED (Western Cape Education Department) must be aware that the School Governing Body was still aggrieved about the fact that Mr Muller; the first choice of recommendation, was not selected/approved, but they (SGB) acknowledged the Department’s prerogative to have the last say”. She said page 24 is the correct version of the minutes and not page 27. She said the current SGB decision was based on the fact that they do respect the decision/s of the previous SGB.
32. Arendze testified that while she was the Secretary of the SGB, she took the minutes in her own hand writing which she later typed out and stored onto a flash drive from which the official minutes are compiled for the purpose of distributing it at the following meeting/s. She also stored the minutes of the meeting held 5 June 2018 onto a flash drive which the Chairperson, Mr Lionel Prins took from her saying that he wanted to make sure that the minutes was correctly drafted and compiled. She gave the flash drive to Prins and when it came back she saw that the minutes were different compared to her rough draft hand written notes. She said that Prins gave his own version of what transpired in the meeting and when she saw the changes in the minutes she refused to sign off on the minutes. To illustrate her point, Arendze referred to Bundles “B” page 8 paragraph 6.2 (Official set of minutes); Bundle “C” (the minutes taken from the hand written notes onto the flash drive) and Bundle “D” (rough notes). These are all minutes of the same meeting held on 16 August 2018).
33. The hand written notes (Bundle “D”) makes no mention of Fedsas and the Deputy Principal and neither did the flash drive minutes of the same meeting make mention of Fedsas and the Deputy Principal. After the flash drive was also fetched by Prins, changes were made to accommodate the FEDSAS and Deputy Principal discussions. She said that the correct versions of the three sets of minutes are Bundles “C” and “D”. According to Arendze, no discussion about FEDSAS and the Deputy Principal was made. She said the SGB did not agree with the Jacobs’s appointment and they have made it clear to Ms Moos (Circuit manager) who came on behalf of the Department as to why Jacobs was appointed and hence their decision that the Department must resolve and finalize this matter.
34. She is aware that Prins have done an enquiry from FEDSAS into the reason for why the Department was at liberty to make the appointment above the recommendation of the SGB. She said that although they have discussed the appointment of the Deputy Principal, they stood by their decision and was still aggrieved when they learned the Department did not approve the recommendation of the SGB. She was also not aware of email correspondence between Prins and Anton Titus (pages 9-10) and that it was the first time that she has seen the email. Arendze acknowledges that she has co-signed the official set of minutes of the meeting that was held on 16 August 2018. She however maintains that this was the version that was edited by Prins. She blindly sign the minutes without realizing that the minutes was not the correct version as per her hand written notes and flash drive versions. She acknowledges that she has made a mistake to sign off on the minutes of 16 August 2018. She said that although she knew that page 27 in bundle “A” was not the correct version of minutes, she did not bring it to Prins’ attention. She however refused to sign it off.
35. During cross examination Arendze was confronted with the question of why the minutes of 24 April 2018 Bundle “E” was not signed. This is the typed version of the minutes which are stored onto the flash drive. This set of minutes is taken into the next SGB meeting where the corrections are made, upon which the official set of minutes are compiled. This, according to Arendze, is the normal meeting procedures that needed to be followed. She said that Prins’ statement that he takes the flash drive on a regular basis is not correct as it only happened once and when he asked for the flash drive, she stored the information onto her desktop.
THE RESPONDENT’S EVIDENCE
36. Mr Lionel Prins (“Prins”) testified that he is the Chairperson of the School Governing Body since March 2018. He however served on and off on the school Governing Body since 2001. Prins’ role as the chairperson of the SGB is to exercises control over the school and chair of sub committees established within the SGB. He is also involved with the SGB vacancies as well as vacancies that are declared and advertised by the Department, the short listing process, interviews and nomination processes.
37. He said he was not involved with the nomination and recommendation process of the Applicant for the position of Deputy Principal, but the previous SGB. He acknowledged the letter addressed by the Directorate: Recruitment and Selection dated 6 April 2018. Freeks informed the SGB that Titus (Circuit Manager) wanted to meet with the SGB to discuss the letter in question. His understanding of the letter was that there were nominations made and submitted to the Department in order of preference. While the SGB have recommended the Applicant as the first choice the Department have selected number two in the list of nominees. The SGB agreed to the meeting and Titus explained the Department’s position on the recommendation and its own choice of preference. Prins dispute that Ms Moos (Circuit Manager) discussed the letter. He said that Titus explained the letter during April 2018. Moos only came into the picture when Titus was transferred to George. Moos’ only involvement was to inform the SGB that Mr Griffin (Current Principal) was taking over from Mr Freeks who was set to retire.
38. Prins concede to the fact that he was involved in the June 5; 2018 SGB meeting as the chairperson of the meeting and that they were only nine members of the SGB attending the meeting and only one member (Mr Claassen) was absent. He said at the meeting on 24 April 2018 it was decided that he enquire from FEDSAS (Federation for South African School Governing Body’s) about the content of the letter dated 6 April 2018. He spoke to Mr Fernando Tallie who advised him about the Department’s power to make appointments. He said there was a scheduled SGB meeting held on 5 June 2018 where two of the members of the SGB were not happy with the Department’s decision to appoint Ms Jacob and the rest agreed the appointment of Ms Jacobs. The two that was unhappy was Mr Freeks and Lourens and there were no further objections by other members of the SGB. He said that the email addressed to Mr Titus was sent to him on the basis of the decision they took in the meeting which was held on 5 June 2018. He said that the reason why the minutes (page 24 and page 27) were different was because that the content on page 24 was incorrectly captured because when comparing with his own notes there was a big difference.
39. Prins testified that he asked Mr Freeks to email the minutes of the meeting held on 5 June 2018 to him. When he received the minutes he realized that Arendze has made a mistake by incorrectly capturing the information. He immediately went to the school and informed Freeks that the minutes were not the correct reflection of what was discussed. He however did not discuss this with Arendze; He said that the minute’s remains a draft until the corrections was made in the follow up meeting. Upon which it become an official set of minutes and a true reflection of what was discussed in the previous meeting. At no stage did Arendze indicate to him that she was in disagreement about the minutes. He said he was involved with Ms Arendze when compiling the minutes of the meeting held 16 August 2018. Prins testified that because Arendze has problems with the keeping of the minutes, he took it upon himself to fetch the flash drive and transfer the minutes onto his computer where he made the corrections in line with his hand written notes. Prins insists that the official minutes of 5 June 2018 was the correct version of the minutes.
40. Prins said that he was always of the view that the Department has looked at the curriculum needs of the school and they therefore have the right to make the appointment. His understanding is that the role of the SGB is to make recommendations in order of preference but the Department has the prerogative to make the appointments irrespective the SGB recommendations. He said there was consultation with the SGB on the matter when Titus came to discuss the letter (page 8 in bundle “A”) with the SGB. He also regards the meetings in April and June 2018 as consultative meetings.
41. Prins testified that the bundle “E” is also a set of minutes of the SGB meeting held on 24 April 2018 which was drafted and compiled by Arendze. Prins make certain amendments to the minutes and put the final official set of minutes on the letter head of the school. He confirmed that the signed minutes is the official approved set of minutes which is only signed and confirmed after the corrections are made at a meeting and the minutes are accepted and adopted as the correct and official minutes. The meeting which was held 24 April 2018 was a scheduled general monthly meeting where numerous items were placed and discussed on the agenda and amongst other things also the feedback from Mr Tallie from FEDSAS on the Department’s power to make appointments above the recommendations of the school governing body.
42. Mr Jacob Solomons (“Solomons”) testified under oath that he is a member of the School Governing Body. The current term would be his second term serving on the SGB and he served in particular on the sports and transports committees. He is aware of the letter addressed by the Directorate: Recruitment and Selection (Head Office) (page 8 in bundle “A”). He saw the letter for the first time when Titus brought the letter and explained the Department’s reasons for choosing to appoint number two on the recommendation list. After Titus explained the content of the letter, the SGB discussed the appointment. According to Titus, the Department, in considering the appointment has looked at the Curriculum needs of the school and concludes that the school was in need of somebody with the foundation phase professional qualification and experience and that the second choice (Ms Elsabe Jacobs) was best suited for the post, therefore he (Titus) seek to make an additional proposal to the criteria. He said that he was the one making the proposal to the chairperson that since there were three candidates on the nomination list whether the chairperson would seek an opinion from FEDSAS perspective about the legal position in terms of whether or not the Department was within its right to make an appointment in the presence of the SGB recommendations in order of preference. The SGB agreed to the process and instructed the chairperson to proceed with seeking legal opinion to this matter and to report back at the next meeting.
43. The feedback they received from Prins at the next meeting was that he spoke to Mr Tallie, the FEDSAS representative who explains from a legal perspective why the Department was within their right to make an appointment in the presence of the SGB recommendations and that appointing Jacobs was within their right and mandate. Solomons read into the record, page 5 in bundle “B”; at paragraph 9.5 in Afrikaans as follows: “Mnr Prins het vergadering meegedeel dat hy n epos skrywe op 13 April 2018 aan Mnr Fernando Tallie, die Streeks verteenwoordiger van FEDSAS gestuur het. Mnr Prins het die situasie aan Mnr Tallie verduidelik asook die besoek van Mnr Anton Titus aan die Skool Beheer Liggaam. Die skrywe vanaf die WKOD wat deur Mnr Titus aan die Skool Beheer Liggaam voorgehou het, was ook deur die voorsitter aan Mnr Tallie gestuur. In reaksie op Mnr Prins se skrywe het Mnr Tallie op 16 April 20018 adviseur dat waneer n beheerliggaam twee (2) of drie (3) candidate aanbeveel vir n vakature, word daar by implikasie aanvaar dat enige een eintlik n geskikte kandidaat vir genoemde vakature kan/sal wees en dat the WKOD dienoreenkomstig so kan besluit. Mnr Tallie het ook n afskrif van die advertensie verlang wat ook deur Mnr Prins aan hom voorsien is op 17 April 2018 deur middle van epos. Hy het belowe dat die aangeleentheid aandag geniet. Die vergadering het met dank kennis geneem van die terugvoering deur Mnr Prins”.
44. My translation of paragraph 43 into English: “Mr Prins informed the meeting that he sends an email to Mr Fernando Tallie; the Regional Representative of FEDSAS on 13 April 2018 in which he explained the situation to Tallie. He also informed Tallie about Mr Anton Titus (Circuit Manager) visit to the School Governing Body to discuss the content of the letter dated 6 April 2018 and the Department’s reason for choosing to appoint Ms Jacobs. The letter was also attached to the email. Mr Tallie responded on 16 April 2018 and advised that when a School Governing Body recommended two (2) or three (3) candidates for a vacancy, it means by implication that the “anyone” of the candidates in the nomination list are suitable for the vacancy and may be appointed by the Department. Mr Tallie also requested a copy of the advertisement which was send to him by Prins on 17 April 2018 via email. He promised that the matter will receive urgent attention.
45. The SGB meeting that was held on 5 June 2018 discussed the appointment of the Deputy Principal, but the SGB decided that the decision was in the best interest of the school, the Department must proceed with the appointment of Jacobs on the basis of her foundation phase qualification and experience and Prins was instructed to communicate the SGB decision to Titus. During cross examination, it was put to Solomons that Titus merely communicated the decision already taken by the Department hence he came with the letter in which the Department already set out their decision to appoint Jacobs. Apparently this decision was taken prior to consulting the SGB. Solomons’ response was that Titus brought the letter during which the content was discussed and he also conveyed that the decision was taken by the Department. He said Titus’ precise words to the SGB were that “when the Department took, they would already have considered the needs of the school. He also said that because the Applicant was number one in the recommendations list, does not mean that he should be appointed into the post. The Department has discretion to make a different appointment should the need arises. He further told Mr Freeks that he has a duty to support the Department as the Principal.
46. Solomons conceded to the statement that was made to him that the SGB was not given a choice but to accept the Department’s decision to appoint Jacobs even though the SGB was still aggrieved about the situation. He said that was the reason why they (SGB) instructed Prins to seek an opinion from FEDSAS. He said they (SGB) have attempted to change the Department’s decision because they were not happy. When asking which one of the two sets of minutes was the true reflection of the meeting of 5 June 2018; he responded the page 27 was the correct version.
47. Mr Harry Wyngaard (“Wyngaard”) testified under oath that he is the Deputy Director Recruitment and Selection. His role among other things is promotions of post level 1 posts; Departmental Heads, Deputy Principals and Principals vacancies. Processing and evaluation of qualifications and salary packages of teachers is his responsibility. He occupied this position for more than fifteen years and in total has 40 years of service with the Department. Wyngaard confirms the list of candidates as recommended by the School Governing Body in order of preference. He said when the Department received the nomination list; they escalate the matter District Senior Management to discuss the delegated skills as well as the curriculum needs of the school. They have agreed that the school needed a person with Foundation phase qualification and experience to address the organizational cohesion. In terms of the Employment of Educators 76 of 1998; they must consult and therefore the letter which was discussed with the School Governing Body by Mr Titus was the consultation with the SGB.
48. He said Titus’ feedback to them was that the SGB approved the Department’s decision to appoint Ms Jacobs (number 2) as opposed to Mr Muller (number 1) and Prins inform them accordingly. When the Department received the ‘go ahead’ from the SGB they immediately proceeded to fill the vacancy and appointed Ms Jacobs. He said even if the SGB did not agree with the Department’s choice, the Department would have proceeded by making the appointment of their choice because they have consulted. The vacancy was filled on 1 October 2018. It was put to Wyngaard that Mr Ahmed (NAPTOSA) testified that the Department’s processes was flawed because the Department deviated from the requirements of Resolution 5 of 1998 and Common Understanding 1 of 2002 (Bundle “F”). He was asked to read from Bundle “F” paragraph 1.3.4 as follows: “the emphasis here is on the suitability of the candidate in relation to the needs (e.g. curriculum etc) of the institution/school”. He said his understanding of the Resolution 5 of 1998 was that Ms Jacobs was the most suitable person for the post based on her professional qualification in the Foundation Phase and the operational and curriculum needs of the school. He said in terms of the curriculum needs the Applicant was not the suitable candidate for the post although he (Applicant) has been recommended the number choice by the School Governing Body.
49. The second aspect testified to by Ahmed was that the Departments was also supposed to consult with the trade unions as per the requirements of resolution 5 of 1998. Wyngaard responded that consultation with the trade unions only happens when the SGB has brought additional criteria which according to him were not the case. However, he iterated that the SGB consult while the trade unions only observe. Wyngaard explains that when a vacancy needed to be filled, the Department would look and consider the most suitable candidates for the post and they would also look at the primary criteria for the filling of the post. Wyngaard further refers to the provision of the Employment of Educators Act 76 of 1998 section (6) (3) (f) “Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list”. He said he interpreted the EEA to state that despite the order of preference ad subject to (d); the Head of the Department may look at other areas of skills such as in this particular instance where the Department has considered the curriculum needs of the school or they would have re-advertised the vacancy.
50. Wyngaard referred to bundle “F” and explains what documents are pages 6 and 7. He said that the documents were compiled by the Director General Mr Archie Lewis and in summary the document speaks to the “delegated authority; nominations and appointments of educators at ordinary public schools”. It basically gives an overview of what he already testified about the requirements of Resolution 5 of 1998. In terms of this document the SGB’ responsibility is to make recommendations but the Department has the responsibility to make the appointments and the Department has the final say as far as appointments are concerned. The Department must act in the best interest of the schools in terms of addressing the curriculum needs of the school. According to Wyngaard, there is already a Deputy Principal Senior Primary Phase (Mr Muller) and the school was in need of a Deputy Principal Foundation Phase which would paint a more perfect picture at the school.
51. Wyngaard testified during evidence in chief that he was not aware of any discrepancies regarding the minutes that is alleged to have been tempered with by Prins. He said no such incident/s was reported to him or the Head of Department. Had they been aware they would have stopped the process and re-advertised the post to give all participants a fair chance. He also deny having knowledge that Titus’ purpose prior to the appointment of Jacobs was to influence the SGB to accept the Department’s choice of appointment against the motivation for wanting to make that particular appointment instead of the recommended first choice of preference. As far as he was concerned there was no Foundation Phase Deputy Principal and the Department saw the need and accordingly makes the appointment.
52. Mr Anton Jacobus Titus (“Titus”) testified on affirmation that he is the Circuit Manager for the last four years. Bergsig Primary School falls in circuit 5; under his jurisdiction at the time. He acted as the Resource Person on behalf of the Western Cape Education Department (WCED). His role as Resource Person was to facilitate the procedurally correctness of the recruitment and selection process. He confirmed that the School Governing Body has made a recommendation for the filling of the Deputy Principal position which was vacant. The recommendation in order of preference was Mr Kevin Muller, followed by Ms Elsabe Jacobs and Mr Anthony Damons. The Department issued a letter on 6 April 2018 in response to the recommendation being submitted to the Department by the SGB.
53. He said the letter explains why Muller should be replaced with Jacobs. According to Titus, the biggest part of the school consists of the Foundation Phase and on that basis did the Department look at the number two on the recommendations list (Jacobs) as it addresses the curriculum needs of the school. Jacobs also have the professional qualification and experience in the Foundation Phase and was therefore the best suitable candidate for the position. Also the previous Deputy Principal was a foundation phase teacher while the Department also looked at the organizational cohesion. When he received the letter from the Department he thought that it was a reasonable request and he immediately called a meeting with the SGB to discuss the content of the letter and at the same time to consult with the SGB.
54. Titus said the letter was confidential and he was shocked to learn that Muller has the letter in his possession. He denies having ‘turn the arms of the SGB or that he unduly influenced the SGB into agreeing to the Department’s choice of appointment and reasons thereof. They were fairly patient with the process especially since the SGB was new into power and they afforded the SGB reasonable opportunity to obtain second opinion from FEDSAS. He received an email from Prins informing him of the SGB decision to approve the Department’s choice of appointment and the motivation thereof. After the appointment was confirmed, the Applicant lodged a grievance against the process over which Titus presided. Titus agrees that no mention was made about the foundation Phase as a criterion for qualification to the post. He was not involved with drawing up the advertisement and he could therefore not say why the foundation phase was omitted from the criteria. However, the advertisement does speak to the Curriculum delivery which he believes also covers the foundation phase. This therefore means that that the post is filled with curriculum aspects as listed in the advertisement. Jacobs was the best choice due to her meeting the requirements of the foundation phase teacher whereas the Applicant has specific areas of expertise and as a result of curricular needs, Jacobs was the one candidate standing out from the rest of the candidature.
55. Titus denies allegations that he might have influenced the decision of the SGB because his biggest role amongst others was to look at the procedural correctness in an advisory capacity. He was an observer and could not be too involved in the processes and decision-making other than to give guidance. He said he only received the letter from the Department upon which he was task to consult with the SGB around the content of the letter. According to Titus, both candidates (Muller and Jacobs) was suitable for the post but Jacobs stood out with her meeting the foundation phase requirements in line with the curriculum needs of the school and organizational cohesion. He said when he visited the school as the Circuit Manager, Jacobs was one of the reliable teachers when called upon to explain certain curricular issues, the Principal would always call on her to provide the necessary guidance and information and so she has always played a leading role as far as such issues were concerned. During cross examination he was Titus was asked given his response, whether his interpretation may have been subjective. He answered that it was not. He re-emphasized his role as the Resource Person saying he must ensure from an administrative perspective that the procedures are followed correctly; he must look at the lawfulness of the process and he must accordingly advise where necessary.
56. Titus confirms that he was involved with the process from the beginning right through to the end. He said that no mention was made about the Foundation Phase in his deliberations with the SGB. However, he maintained that the advertisement speaks to the Curriculum delivery which he believes covers all areas of the curriculum needs of which the Foundation Phase forms part. As an observer, he does not have an opinion. He said he totally agree with the Departments view as he is of the view that organizational coherence take preference above all other matters of concern. The Department therefore has the right to modify the criteria in order to find the best suitable candidate for the post and the only yardsticks used to conclude as such was (1) organizational coherence and (2) curriculum needs of the school. However, coming to Employment Equity or Curricular needs; Titus is of the view that either way, one can interpret the fact that a woman was appointed into the position, as Employment Equity. He said his interpretation in regards to section 6 (3) of the Employment of Educators Act 76 of 1998 is that the Head of Department has the right to appoint any one of the three candidates nominated irrespective the order of preference. They therefore acted within their right to appoint Jacobs.
ANALYSIS OF EVIDENCE AND ARGUMENT
57. The Applicant’s claim is in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended which reads as follows: ‘unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving-
(a) 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”.
58. The burden of proof rest with the Applicant. It is common cause that the Applicant was one of three candidates that applied for the vacant position of Deputy Principal at Bergsig Primary School. The Applicant was shortlisted and interviewed and he was rated the top candidate and subsequently also recommended by the School Governing Body as the number one candidate which nominations list was submitted to the Western Cape Education Department (WCED) in order of preference. This procedure is specifically outlined in the Employment of Educators Act 76 of 1998 as amended; section 6 (3) (c) states that “the governing body must submit, in order of preference to the Head of Department, a list; at least three names of recommended candidates; or fewer that three in consultation with the Head of Department”.
59. The Applicant’s case is that the procedure outlined above was followed to the letter by the SGB. However, subsection (c) states that “when the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making an appointment, ensure that the governing body has met the requirements in paragraph (b).
60. It is common cause that the Applicant was not appointed into the position irrespective of being the SGB’ number one recommendation but the second best candidate (Ms Elsabe Jacobs); on the basis that Jacobs has a professional qualification and experience in Foundation Phase and therefore becomes the best suitable candidate for the position. This has been strongly confirmed by both Respondents’ witnesses, Harry Wyngaard and Anton Titus. It is also common cause that no mention was made in the advertisement about the foundation phase qualification and experience as a prerequisite for the vacancy and neither was this discussed in a consultative meeting with the School Governing Body (SGB) prior to drawing up the advertisement and unchallenged evidence is, that no questions to that effect was asked in the interviews.
61. It is now alleged by the Applicant that the foundation phase was added as an additional criteria by the Department. Had it been part of the advertisement from the start, the Applicant would not have applied for the position because he knew he would have been unsuccessful with his application. Mr Anton Titus’ own evidence is that he was not involved with the drawing up of the advertisement and he also could not say why the foundation phase was not made mention in the advertisement and or the interviews.
62. I find it extremely odd that this specific aspect was not at the center of all the discussions relating to filling the post. Titus was the Resource Person who has been involved with the process right from the start to the end. I do not believe that Titus was not involved with the content of the advertisement from inception. He would have easily picked up that if it were the Department’s intention to also address the Foundation Phase as part of the broader picture of Curriculum delivery, thorough discussions with specific reference to the Foundation Phase would have surfaced.
63. He may not have been involved in the drawing up of the advertisement, but logic dictates that he would have been part of the broader discussion about the advert content. They would have discussed the curriculum needs of the school during which the foundation phase would have been at the center of the discussion. Furthermore, foundation phase would have also been at the center of the interviews had this been part thereof especially since it has now become an extra prerequisite to qualify for the post.
64. What is also in question is that the decision was already made by the Department. I say this for the following reasons: When Titus meet with the SGB about the content of the letter, the letter was already pre-drafted which gives me the impression that all that was left, was for Titus to take leadership by carrying out the mandate of the Department by convincing the SGB to accept the Department’s choice of appointment. In his evidence, Titus used words such as “he agrees with the Department”; “the Department has acted within its right”; “even if the SGB did not accept the outcome, the Department would still have continued to make the appointment of their choice”. Jacob Solomon’s evidence confirms this notion of Titus having been more biased towards the Department’s position to the point that Titus would have said to Mr Freeks (former Principal) that he must support the Department. Secondly, this has clearly come as a shock to the SGB because they were clearly not happy with the outcome. Here, I picked up a number of contradictions in the evidence led by Respondent witnesses which I shall now point out. Firstly, Prins’ evidence is that the entire SGB attended the meeting in which this matter was discussed accept for one member of the SGB by the name of Claassen. This by implication means that the SGB meeting has quorate and therefore any decision would have easily gone through when it comes to a vote.
65. Two members of the SGB were unhappy with the decision. They were Freeks and Lourens. However, Jacob Solomons’ evidence was that the SGB instructed Prins to liaise with FEDSAS on the matter. His choice of words was that “they wanted Muller as the Deputy Principal; hence they instructed Prins to liaise with FEDSAS and provide feedback at the next meeting”. When he (Solomons) was confronted with the proposition by the Applicant’s representative to say that he concludes that the SGB did not have a choice but to accept the Department’s decision, Solomons responded “no they did not have a choice but to accept the decision of the Department” he said in Afrikaans “want ons het probeer, dis hoekom ons met FEDSAS gepraat het”. “Ons het besluit om by nommer 1 te bly; as dit dit geval is moet die Departement maar self die aangeleentheid hanteer”. This to me is a clear indication that more than two members of the SGB was unhappy about the Department’s decision because if it was only two SGB members that were unhappy, the majority rule principle would have been the only way out.
66. I am also extremely concerned about the subjective views expressed by Titus which emanate from prior (unrelated) occasions. Titus is on record to have said as part of his evidence that in the past when he used to visit the school when he was still the circuit manager within which jurisdiction this school falls, he was so impressed with Ms Jacobs because she was the only person the Principal could call upon to respond to curriculum issues. This is clearly his subjective views about Jacobs. I think this was an unfair expression of Titus’ own view and indeed subjective to the course. His own evidence is that he could be too much involved other than to observe and give guidance. This was clearly not the case. Titus’ main objective was to have the Department’s choice of appointment approved.
67. The chairperson of the SGB, Mr Lionel Prins’ conduct must also be critically looked at. I find it extremely odd that Prins borrowed the flash drive of the Secretary of the SGB and make the corrections or amendments to the minutes. Prins did not discuss the changes with the Secretary but with Freeks yet he’s now criticizing her ability to keep accurate record. This was not his place to amend the minutes according to his own understanding in the absence of an official quorum of the meeting. Prins never presented his own notes in the arbitration. There are two sets of minutes of the meeting held on 5 June 2018 (pages 24 to 25 and page 27). When comparing the two versions of minutes of the same meeting, the content does not conform to each other. For instance; page 24 which according to the Secretary is the true reflection of the minutes of the meeting held on 5 June 2018 at point 8 deals with the FEDSAS response very briefly (three lines). However, page 27 at point 8 also mentioned the FEDSAS response in its brief form with the changes being made as follows: Page 24 point states “FEDSAS: Mnr Prins wag nog vir terugvoering. Mnr Tallie voer ligitiewe redes aan hoekom Departement aanstelling gedoen het. BHL bly in beginsel by hul besluit. Departement moet proses self afhandel”.
68. Page 27 however, reflects an extension of the discussion with regards to the FEDSAS point on the agenda. It states in Afrikaans that “Mnr Prins wag nog vir terugvoering. Mnr Tallie voer ligitiewe redes aan hoekom Departement aanstelling gedoen het. Na in diepte bespreking van hierdie aangeleentheid verder het die vergadering die volgende besluit geneem. Dat in belang van die skool in sy werksaamhede die WKOD mag voortgaan met die aanstelling van Me Jacobs as adjunk prinsipaal. Die WKOD neem kennis dat die SBL steeds op record plaas dat hy (SBL) nogsteeds gegrief voel mbt die feit dat Mnr Muller die eerste keuse was van die SBL, maar ook bewus is dat die prerogatief van die WKOD is. Dat Mnr Titus met betrekking tot hierdie besluit ingelig word”. Here, it is clear that changes were made by Prins to fit in with the Department’s decision. Having heard the evidence from Solomons (Respondent’s witness) and Arendze (Applicant’s witness) the evidence in this regard confirms my findings. I have no doubt that the minutes in page 27 in bundle “A” was the edited version not the original set of minutes (page 24). I concur with the evidence of Arendze in this regard.
69. Further to this I agree with Wyngaard that Arendze should have reported this discrepancy to the Head of Department. However, given the fact that the SGB was fairly new there was this notion of leniency and trust towards the newly elected SGB, even Titus testified to this leniency; they were patiently waiting for the SGB to settle in. In considering this leniency and patience with the newly elected SGB, one tend to lean more towards the argument that Arendze signed off on the minutes of the meetings held on 24 April 2018 and 16 August 2018 respectively in error because she has no reason to distrust Prins. As soon as she becomes known of the discrepancy with the minutes of the meeting held on 5 June 2018, she refused to sign off on the minutes.
70. Just after the meeting where one wonders whether there was consensus Prins wrote an email to Titus on 26 June 2018 indicating the SGB approval of the Department’s choice of appointment. The email go on to say that the SGB was still aggrieved about the fact that their number one choice was not appointed and that they are however aware of the Department’s prerogative to make the appointment. This brings me to the interpretation of the provisions of the Employment of Educators Act 76 of 1996; section 6 (3) (a) makes very specific reference to the role of the SGB. It states that “subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school”. This provision of the EEA seems to give clear expression to the role of the governing body when it comes to making appointments otherwise the system of nominating and submitting recommendations to the Head of Education by the governing body would not have been one that is necessary. This happens for a reason and in the main to ensure that parent participation is at the order of the day.
71. The role of the Head of Education only finds expression, ‘subject’ to (on condition) to first complying with certain other procedural aspects as contemplated by the EEA. So for instance; section 6 (3) (f) of the Employment of Educators Act 76 of 1998 states that ‘Despite’ (notwithstanding/regardless of) the order of preference in paragraph (c) and ‘subject’ (on condition) to paragraph (d), the Head of Department may appoint any suitable candidate on the list”. This does not necessarily taking away the Department’s prerogative to make an appointment on own accord or to confirm a recommendation, it simply states that before proceeding with making the appointment, the Department must ensure that the governing body has complied with their legal function in terms of the process; i.e. after the shortlisting and interviews are completed, that the nominations list is prepared and recommendations are made in order of preference. If this was not done, then the Department is within their right to decline the recommendation in which instance, the Department may re-advertise of/ and or appoint any suitable candidate from the recommendations list. The term ‘on condition’ clearly refers to action/s that needed to be effected before another thing/action happens.
72. This particular role can only find expression once paragraph (c) was complied with by the governing body and provided that paragraph (d) was adhered to. In other words, the Head of Department’s ultimate responsibility is to ensure that the nominations are done and recommendations were made by the governing body in a procedurally fair manner. This provision specifically use the term ‘when the Head of Department “Considers” the recommendation spoke about in paragraph (c), he or she must, before making the appointment, ensure that the governing body has met the requirements in paragraph (b). So the recommendations by the governing body are something that must be considered by the Head of Department before making the appointment.
73. My interpretation of the provision of the EEA is that the Head of Department’s mandate to deviate from the normal procedures is locked up in two very specific principles, namely; firstly when dealing with an application/s in terms of meeting its Employment Equity targets, i.e.(Equity, Redress and Representivity) in which case section 6 (3) (b) comes into being and must always be considered when making appointments and secondly, when a recommendation is declined for some reason, section 6 (3) (e) and (f) will find expression. It is the Respondent’s case that the recommendation was declined on the basis that the Applicant was not the best suitable candidate for the position due to his lack of a Professional Qualification in the Foundation Phase. If one were to take away the foundation phase as a criteria, the Applicant meets all the requirements to qualify for the post.
74. This takes me to a critical question as to whether or not the intentions of the drafters of the advertisement was that the Foundation Phase be one core criteria for filling the post. My answer is a simple ‘no’ because the drafters would have make mention of such an important aspect which forms the basis of the core criteria. As I have said earlier, that Foundation Phase experience would have been at the center of (1) the advertisement; (2) all subsequent discussions with SGB and (3) it would have form the center of attraction in or during the interview because ultimately, this is what the potential incumbent must sell him or her for before the panel of interviewers. I must emphasize that I do not agree with the argument that curriculum delivery covers the foundation phase because it should have been discussed. It is then unfair to amend the criteria after the interviews because the interviews were based on the content of the advertisement which advertisement in my view is comprehensively compiled. The Applicant was clearly deprived of an opportunity to be promoted.
75. Having heard and considered the evidence in its totality, I find that the Respondent’s actions amount to unfair labour practice relating to promotion. The Applicant seeks to be appointed into the position. I have taken into account the amount of disruption if I were to order the Applicant to be appointed into the position I foreseen a disruption to a large degree in the operations and curriculum delivery of the school. I am therefore of the considered view that five months compensation to be awarded to the Applicant should be just and equitable under the circumstances. Here follow my reasons: The Applicant was gravely and grossly deprived of a promoted position which would have earned him an increase in salary. The Department has made a critical mistake by adding additional criteria after the interviews were completed. This was grossly unfair. When realizing that this was a critical requirement to qualify for the post, the Department should have re-advertised the position whereby all the participants should have been given an opportunity to take part in the process from scratch. The Department failed to do that and therefore committed an unfair labour practice relating to promotion.
76. My calculations are as follows: The Applicant’s basic salary is at R34 650. 25 x 5 months = R173 250. 00.
77. In the premise therefore, I make the following award:
AWARD
78. The Respondent Western Cape Education Department (WCED) has committed an Unfair Labour Practice relating to promotion against the Applicant, Mr Kevin Ronald Muller.
79. The Respondent Western Cape Education Department is ordered to pay financial compensation to the Applicant, Mr Kevin Ronald Muller; an amount equal to five months remuneration of R173 250. 00 by no later than 31 July 2019.
80. There is no order as to costs.
Signature:
Commissioner:Jacobus Simon Du Plessis
Sector:
Province: Western Cape
Applicant: NAPTOSA obo KEVIN RONALD MULLER
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 12 July 2019
Arbitrator: Jacobus Simon Du Plessis
Case Number: PSES413-18/19WC
Commissioner: Jacobus Simon Du Plessis
Date of Award: 12 July 2019
In the ARBITRATION between
NAPTOSA obo KEVIN RONALD MULLER
(Union/Applicant)
And
WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)
Employee’s representative: Mr Faez Tassiem
Applicant’s address: Rondebosch
7700
Telephone: 021 686 8521
Telefax: 021 689 2998
E-mail: faezt@naptosa.org.za
Employer’s representative: Mr Frederick Scholtz
Respondent’s address: Western Cape Education Department
Private Bag X9114
Cape Town
8000
Telephone: 021 467 2387
Telefax: 021 412 8506
E-mail: bergsighead@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was convened on 22 February 2019, 3 and 4 April 2019 and 27 June 2019 to consider the unfair labour practice dispute brought by the Applicant, Mr Kevin Ronald Muller against the Respondent, Western Cape Education Department.
2. The Applicant was present and represented by Mr Faez Tassiem, a duly appointed official for the National Professional Teachers Organization of South Africa (NAPTOSA); a trade union registered in accordance with the Labour Relations Act 66 of 1995 as amended. The Respondent was represented by Mr Frederick Scholtz, a duly appointed Employee Relations Officer for the Respondent.
3. The parties have submitted bundles of documents into evidence and called witnesses to testify in support of each case. The hearing was conducted in English and Afrikaans and the proceedings were fully explained to the parties. Hand written notes were kept and the proceedings were digitally recorded.
ISSUE TO BE DECIDED
4. I must determine whether the Respondent has committed an Unfair Labour Practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (LRA). I must also decide on the appropriate relief.
BACKGROUND TO THE DISPUTE
5. The Applicant is a teacher by profession for 37 years of which he currently occupied the position of Head of Department; a position he holds for 19 years. A vacancy for the position of Deputy Principal becomes vacant at the school Bergsig Primary which position was advertised under the post identification code, “Post 88” in Vacancy List 1/2017. The Applicant together with three other candidates applied for the position.
6. The candidates were Mr Anthony Damons, Ms Elsabe Jacobs, Mr Kevin Ronald Muller and Ms Katie Abrahams. The last mentioned candidate withdrew from the interviewing process leaving the first three candidates in order of preference according to the interviewing score results as follows: Mr KR Muller (72. 72%); Ms Elsabe Jacobs (67.95%) and Mr Anthony Damons (67.27%) to be interviewed.
7. As a result of the highest scores being allocated to the Applicant, he was recommended by the School Governing Body (SGB) as the preferred candidate to the Department. Despite having recommended as such, the Department of Education appointed the second best candidate into the position. The Applicant seeks to be appointed into the position retrospectively to the date of the appointment if found that the Respondent has committed an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
THE APPLICANT’S CASE
8. The Applicant testified under oath that he is a Departmental Head for 19 years. He is a teacher for 37 years. He confirmed that the position for Deputy Principal was advertised for which he applied for. Reading the qualification criteria from the advertisement, he realized that he complied with all the said criteria set out in the advertisement These were as follows: Applicants, in their curriculum vitae’s, are required to focus on the following criteria and to mention their specific applicable qualifications, experience, responsibilities, experience on the specific subject level, role and number of years in the teaching profession. The criteria was set as follows:
• Applicable Qualifications is a requisite;
• Experience on the level of Head of Department and or Deputy Principal;
• Record of excellent administrative and organizational skills;
• Participation in Assessments;
• Proof of experience and successes with regards to the handling of conflict amongst personnel and learners;
• Specific behavioral difficult learners;
• Knowledge of Disciplinary Procedures, Setting up of and Implementation of Disciplinary Policies;
• Collection Analysis and Presentation of Statistics;
• Experience in the monitoring and Providing of Leadership with regards to curriculum requirements;
• Curriculum leadership which includes amongst other things, support planning, classroom work and practice, the increase of literacy and numeric levels. Teaching of the curriculum.
• Proper understanding of the current curriculum and proof of training is a requirement.
• Experience and understanding of Promotion and Progress for primary schools. Knowledge of CEMIS. Knowledge of Teacher Law Legislation, Regulations and Policies.
• Computer literacy in at least Microsoft Word, Excel, PowerPoint and Khanya Programs. Proper knowledge of GGBS processes. Knowledge of PPBOS processes. Organizing of projects (functions) and involvement with extramural activities.
9. No mention was made about the Foundation Phase as a prerequisite for the filling of the vacancy. Foundation Phase qualification was the requirement after the interviews were completed. The Applicant is of the view that he meets all the requirements set out in the advertisement while his interviewing scores were higher than his competitors.
10. The Applicant referred to page 24 in bundle “A” (Respondent’s bundle) which is the minutes of the School Governing Body meeting held 5 June 2018 at Bergsig Primary School point 8. He read into the record the portion that deals with the (Federation OD Association of School Governing Bodies) FEDSAS position on why the Department has the prerogative to make an appointment. “Mr Prins awaiting the feedback from FEDSAS. Mr Tallie (Representative of FEDSAS) provided legitimate reasons for why the Department of Education made the appointment. The School Governing Body, in principle, stuck to their decision but they however felt that the Department of Education must handle the matter in their own way”. The Applicant testified that his understanding of this advice is that the Department was at liberty to deal with the appointment in their own way even though the SGB has made their decision.
11. He said he requested the minutes of the meeting when he lodged a grievance after he come to know that despite having been the best candidate and meeting all the requirements, and being recommended by the SGB, that he was not appointed as per the SGB recommendation. He was informed by Mr Anton Titus, the Circuit Manager that the SGB has approved the appointment of the second best candidate; Ms Elsabe Jacobs and that the school will appoint somebody with foundation phase training and experience to address the curriculum needs of the school. This he felt was unfair towards him and it amounts to an unfair labour practice. He has been prejudiced.
12. He said he becomes aware of the appointment of Ms Jacobs through the vacancy list that was released while he was already congratulated by the previous SGB and the former principal and deputy principal, Mr Willie Freeks and Brandon Griffin already indicated to the Department with the 2018 year plan that they continue with the Applicant as Deputy Principal. This, the Applicant view as a reasonable expectation of his appointment.
13. He was informed by Titus that the school was going to appoint a person with foundation phase training and experience whereas no mention about such requirement was made in the advertisement. He said he knows how the school determines curricular needs. They would call an SMT meeting and would discuss possible needs upon which they would consult the School Governing Body on the different curriculum needs to be implemented at the school. There was no such process prior to making the decision about the curriculum needs.
14. The Applicant read page 10 in the Respondent’s bundle “A” into the record. This is the email send by the Chairperson of the Governing Body, Mr Lionel Prins to Mr Anton Titus in Afrikaans as follows: “In sake Adjunk Prinsipaal Aanstelling. Ons telefoniese gesprek in bovermelde aangeleentheid het betrekking. Die SBL van Bergsig Primere het tydens sy vergadering op Dinsdag 5 Junie 2018 soos volg besluit.
(1) Dat dit in belang van die skool in sy werksaamhede die WKOD mag voortgaan met die aanstelling van Me Jacobs as Adjunk Prinsipaal.
(2) Dat the WKOD kennis neem dat die SBL steeds op record plaas dat hy (SBL) nog steeds gegrief voel mbt die feit dat Mnr Muller die eerste keuse was van die SBL, maar ook bewus is dat die prerogatief die van die WKOD is”.
15. When asking to compare pages 10 and 9 (starting from page 10 down to page 9) with the typed version of the minutes of the meeting of 5 June 2018. The Applicant’s response was that he understood the SGB position to be that they (SGB) distance themselves from the WCED decision to appoint the second best candidate based on her foundation phase experience which he believe, was not mentioned in the advertisement as a criteria. He interpreted the email as such, from the stance taken by the SGB that they ‘still feel aggrieved’ about the fact that their choice of preference was not accepted by the WCED.
16. Prins’ email stated that the appointment as per the WCED decision was in the interest of the school and that he (Applicant) felt that the SGB was therefore put under pressure by Titus who acted on behalf of the WCED. Titus who was also selected by the WCED to act as the resource person on its behalf, and that he (Titus) was involved with the appointment process from the start; i.e. short listing of the candidates, interviewing process as well as adding additional criteria to the advertisement which becomes a concern. The Applicant therefore is of the opinion that Titus might have unduly influenced the decision of the SGB and therefore his actions amounts to perceived biasness. The purpose of the interviewing process is to get the best candidate appointed. He has proven to be the best candidate, he met all the requirements set out in the advertisement and no mention was made about the foundation phase as part of the curriculum needs of the school and as prerequisite to be appointed into the position.
17. The role of the ‘Resource Person’ was to observe and give guidance where necessary. He should not have been too deeply involved in the process as Titus was. During the grievance meeting, he (Titus) acknowledged that he was the one taking the decision to rather appoint a person with foundation phase experience as opposed to an intermediary phase person such as the Applicant. If foundation phase was a core criterion in the advertisement, he would not have applied for the position.
18. During cross examination the Applicant acknowledged the WCED’s prerogative to confirm any one of three candidates in the recommendations list, provided that the process was fair. The recommendations form that are submitted by the School Governing Body dated 19 September 2017 (Page 7 of Bundle “A”) reflects names of the candidates in order of preference as follows: Muller K; Jacobs E and Damons A while page 4 (minutes of the meeting of 22 June 2017) contains the names of the candidates in order of preference and according to the highest scores awarded to the candidates in the interview as follows: K Muller (72.72%); E Jacobs (67.95%) and A Damons (67.27%). He said because he was rated the highest means that he was the best and suitable candidate for the post. However, he is aware that the WCED has the right to also consider other competing candidates.
19. It was put to the Applicant that the WCED did consider the application of another candidate on the strength that this candidate has foundation phase experience which according to the WCED is what the school needs to be in line with the school’s curriculum requirements. Page 8 in Bundle “A” is a letter addressed to the former chairperson of the School Governing Body Mr M Loksen, by the Head of Education on 6 April 2018 stressing the following: (the letter was read into the record) “Upon scrutiny it was discovered that Bergsig Primary already appointed a Deputy Principal professionally qualified in the intermediate and senior phase. In order to enhance organizational coherence and curriculum delivery it will be more beneficial for the school to rather appoint another Deputy Principal professionally qualified the Foundation phase. The first nominee, Mr K Muller is professionally qualified in the intermediate and senior phase. On recommendation from the District office, it is the Department’s intention to appoint the second nominee, Ms E Jacobs, for appointment to the post as she is professionally qualified in Foundation phase”. The Applicant confirms that the letter must have been served on the SGB and as such could be regarded as having consulted with the SGB.
20. The letter also refers to “recommendation by the District office” referring to Mr Anton Titus, the Resource person. The Applicant disputes that page 27 in bundle “A” is the correct version of the minutes of the SGB meeting on 5 June 2018. He said that this version (page 27 in bundle “A”) is not the correct version and there are two sets of minutes for the meeting held on 5 June 2018 which indicates that the second set on minutes was adjusted to suite the WCED decision above the recommendation of the SGB. He obtained the correct version of the minutes from the SGB after the grievance meeting. The difference in relation to paragraph 8 in both sets of minutes is that page 27 includes an additional paragraph about the WCED’s decision to appoint the second best candidate on the strength that appointing a person with Foundation Phase experience was in the best interest of the school whereas the initial set of minutes, (page 24) only contains the FEDSAS input into the enquiry made by the chairperson of the SGB as to the WCED’s prerogative to make any appointment among the nominees in the recommendations list. The Applicant therefore disputes the minutes and argues that the decision was not this of the SGB but that the SGB was under pressure to approve the WCED’s decision to appoint a person with Foundation Phase experience.
21. According to the email dated 26 June 2018, addressed to Prins, chairperson of SGB (pages 9 and 10 of bundle “A”); there was a telephone discussion between Titus and Prins about the WCED choice of appointment prior to the appointment of the second best candidate’s approval by the SGB. It therefore indicates that the SGB have succumbed under pressure from Titus. The Applicant was asked to read into the record, certain extracts from the Employment of Educators Act 76 of 1998 as amended as follows starting from page 14 bundle “A”, chapter 3 (Appointments, Promotions and Transfers) section (6) “Powers of employers –
(1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator –
(a) In the service of the Department of Basic Education shall be made by the Director General; or
(b) In the service of a provincial Department of Basic Education shall be made by the head of Department.
(2) Subject to the provisions of this chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be made in accordance with such procedure and such requirements as the Minister may be determine.
(3) (a) Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educators establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned”.
22. According to this extract of the Employment of Educators Act 76 of 1998, the Head of Department may deviate from the normal procedures and make appointments. The Applicant re-emphasized that the Department has the right to make appointments as long as it is done in a procedurally fair manner. There was no fair procedure followed which comes to an unfair labour practice. As far as the Applicant is concerned, no mention was made about the Foundation phase as core criteria. Even in the interviewing process, no questions were asked about the Foundation Phase. Titus, as the Resource Person was involved from the shortlisting process to the interviews upon which he also took the decision that it was in the school’s best interest to appoint someone with Foundation Phase experience and Professional Qualification. The Applicant said that after the grievance meeting, he and the representative went back to the school to enquire whether Ms Jacobs’ appointment was approved by the SGB. The former principal Mr Willie Freeks’ response to that was that no such decision was made in any SGB meeting. This was when he asked for a copy of the minutes of the SGB meeting that was held on 5 June 2018 where the appointment of the Deputy Principal was discussed.
23. Mr Riedwaan Ahmed (“Ahmed”) testified under oath during a teleconference on 3 April 2019 that he is a Senior Executive Officer for NAPTOSA in the Western Cape. He comes from a teaching background, with qualifications in labour law up to his Master’s Degree in Law. He is also a CCMA accredited commissioner. Ahmed who was called as an expert witness testified about his own interpretation and understanding of section 6 Chapter 3 of the Employment of Educators Act 76 of 1998 (EEA). This section deals with the powers of the Head of Education. Ahmed recognizes the discretionary powers of the Head of Department which according to his understanding is limited to the Employment Equity in as far as employment of educators are concerned of which the focal points are “equity; redress and representivity”. There is no other deviation accept for employment equity purposes.
24. The recommendation of three nominees was part of the amendments to the EEA. Achmed read into the record section 6 (3) (b) as follows: “In considering the applications, the governing body (SGB) or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to-
(i) The democratic values and principles referred to in section 7 (1);
(ii) Any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators;
(iii) Any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators which the candidate must meet;
(iv) A procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators; and
(v) Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body”
25. The EEA goes further to say that section 6 (3) (c) states that the “Governing body must submit , in order of preference to the Head of Department, a list;
(i) at least three (3) names of recommended candidates; or
(ii) fewer than three candidates in consultation with the Head of Department”.
26. Section 6 (3) (d) states that “when the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making an appointment, ensure that the governing body has met the requirements in paragraph (b)”.
27. He said reading the EEA in context the intentions of the legislator are clear that the deviation only applies to Equity and nothing else. The EEA further gives clear meaning to the role of the governing body. His understanding of paragraph (f) “despite the order of preference in paragraph (d), the Head of Department may appoint any suitable candidate on the list.
(g). if the Head of Department declines a recommendation, he or she must-
(i) consider all the applications submitted for that post;
(ii) apply the requirements in paragraph (b) (i) to (iv); and
(iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.
28. Ahmed testified that it is highly irregular for the Department to appoint somebody on the strength criteria which was not mentioned in the advertisement. Foundation phase experience was not part of the criteria mentioned in the advertisement because this is not covered by the EEA. The Department could only exercise its discretion when called upon to consider the three categories of Employment Equity (Equity; Redress and Representivity) which in this particular instance was not the case. If the Department has a need of adding additional criteria, it has to be done in consultation with the trade unions and parties involved as per Resolution 5 of 1998.
29. Ms Philloreen Arendze (“Arendze”) testified under oath that she is the teacher component member of the School Governing Body; the Secretary of the SBG. Her role as the Secretary is to compile the minutes and handle all the correspondence addressed to or from the SGB, issuing of notices of meetings etc. She a post level one English teacher for grade five. She served as the Secretary of the SGB from March 2018. She was not involved with the filling of the position of the Deputy Principal but the previous governing body was involved. She is aware of the letter (page 8 in bundle “A”). This is the letter addressed by the Directorate: Recruitment and Selection dated 6 April 2018. The letter was hand delivered by Mr Anton Titus and according to the letter Mr Kevin Muller was the governing body’s first choice of preference but it was not approved by the Department.
30. Pages 24 and 27 in bundle “A” refer to the same SGB meeting which was held on 5 June 2018 at the school premises. She reads page 24 paragraph 8 (the second sentence) into the record in Afrikaans as follows: FEDSAS: “Mnr Prins wag nog vir terugvoering. Mnr Tallie voer ligitiewe redes aan hoekom Departement aanstelling gedoen het. Beheer Ligaam bly in beginsel by hul besluit. Departement moet self afhandel”. (My translation- English) Mr Prins is awaiting the feedback from FEDSAS. Mr Tallie raises legitimate reasons for why the Department has the right to make appointments. The School Governing Body, in principle maintains its position. The Department must finalize this matter on its own”.
31. Arendze also read page 27 paragraph 8 (third sentence) into the record as follows in Afrikaans: “Dat die WKOD kennis neem dat the SBL steeds op record plaas dat hy (SBL) nog steeds gegrief voel met betrekking tot die feit dat Mnr Muller die eerste keuse was van die SBL, maar ook bewus is dat die prerogatief die van die WKOD is”. (My translation-English) The WCED (Western Cape Education Department) must be aware that the School Governing Body was still aggrieved about the fact that Mr Muller; the first choice of recommendation, was not selected/approved, but they (SGB) acknowledged the Department’s prerogative to have the last say”. She said page 24 is the correct version of the minutes and not page 27. She said the current SGB decision was based on the fact that they do respect the decision/s of the previous SGB.
32. Arendze testified that while she was the Secretary of the SGB, she took the minutes in her own hand writing which she later typed out and stored onto a flash drive from which the official minutes are compiled for the purpose of distributing it at the following meeting/s. She also stored the minutes of the meeting held 5 June 2018 onto a flash drive which the Chairperson, Mr Lionel Prins took from her saying that he wanted to make sure that the minutes was correctly drafted and compiled. She gave the flash drive to Prins and when it came back she saw that the minutes were different compared to her rough draft hand written notes. She said that Prins gave his own version of what transpired in the meeting and when she saw the changes in the minutes she refused to sign off on the minutes. To illustrate her point, Arendze referred to Bundles “B” page 8 paragraph 6.2 (Official set of minutes); Bundle “C” (the minutes taken from the hand written notes onto the flash drive) and Bundle “D” (rough notes). These are all minutes of the same meeting held on 16 August 2018).
33. The hand written notes (Bundle “D”) makes no mention of Fedsas and the Deputy Principal and neither did the flash drive minutes of the same meeting make mention of Fedsas and the Deputy Principal. After the flash drive was also fetched by Prins, changes were made to accommodate the FEDSAS and Deputy Principal discussions. She said that the correct versions of the three sets of minutes are Bundles “C” and “D”. According to Arendze, no discussion about FEDSAS and the Deputy Principal was made. She said the SGB did not agree with the Jacobs’s appointment and they have made it clear to Ms Moos (Circuit manager) who came on behalf of the Department as to why Jacobs was appointed and hence their decision that the Department must resolve and finalize this matter.
34. She is aware that Prins have done an enquiry from FEDSAS into the reason for why the Department was at liberty to make the appointment above the recommendation of the SGB. She said that although they have discussed the appointment of the Deputy Principal, they stood by their decision and was still aggrieved when they learned the Department did not approve the recommendation of the SGB. She was also not aware of email correspondence between Prins and Anton Titus (pages 9-10) and that it was the first time that she has seen the email. Arendze acknowledges that she has co-signed the official set of minutes of the meeting that was held on 16 August 2018. She however maintains that this was the version that was edited by Prins. She blindly sign the minutes without realizing that the minutes was not the correct version as per her hand written notes and flash drive versions. She acknowledges that she has made a mistake to sign off on the minutes of 16 August 2018. She said that although she knew that page 27 in bundle “A” was not the correct version of minutes, she did not bring it to Prins’ attention. She however refused to sign it off.
35. During cross examination Arendze was confronted with the question of why the minutes of 24 April 2018 Bundle “E” was not signed. This is the typed version of the minutes which are stored onto the flash drive. This set of minutes is taken into the next SGB meeting where the corrections are made, upon which the official set of minutes are compiled. This, according to Arendze, is the normal meeting procedures that needed to be followed. She said that Prins’ statement that he takes the flash drive on a regular basis is not correct as it only happened once and when he asked for the flash drive, she stored the information onto her desktop.
THE RESPONDENT’S EVIDENCE
36. Mr Lionel Prins (“Prins”) testified that he is the Chairperson of the School Governing Body since March 2018. He however served on and off on the school Governing Body since 2001. Prins’ role as the chairperson of the SGB is to exercises control over the school and chair of sub committees established within the SGB. He is also involved with the SGB vacancies as well as vacancies that are declared and advertised by the Department, the short listing process, interviews and nomination processes.
37. He said he was not involved with the nomination and recommendation process of the Applicant for the position of Deputy Principal, but the previous SGB. He acknowledged the letter addressed by the Directorate: Recruitment and Selection dated 6 April 2018. Freeks informed the SGB that Titus (Circuit Manager) wanted to meet with the SGB to discuss the letter in question. His understanding of the letter was that there were nominations made and submitted to the Department in order of preference. While the SGB have recommended the Applicant as the first choice the Department have selected number two in the list of nominees. The SGB agreed to the meeting and Titus explained the Department’s position on the recommendation and its own choice of preference. Prins dispute that Ms Moos (Circuit Manager) discussed the letter. He said that Titus explained the letter during April 2018. Moos only came into the picture when Titus was transferred to George. Moos’ only involvement was to inform the SGB that Mr Griffin (Current Principal) was taking over from Mr Freeks who was set to retire.
38. Prins concede to the fact that he was involved in the June 5; 2018 SGB meeting as the chairperson of the meeting and that they were only nine members of the SGB attending the meeting and only one member (Mr Claassen) was absent. He said at the meeting on 24 April 2018 it was decided that he enquire from FEDSAS (Federation for South African School Governing Body’s) about the content of the letter dated 6 April 2018. He spoke to Mr Fernando Tallie who advised him about the Department’s power to make appointments. He said there was a scheduled SGB meeting held on 5 June 2018 where two of the members of the SGB were not happy with the Department’s decision to appoint Ms Jacob and the rest agreed the appointment of Ms Jacobs. The two that was unhappy was Mr Freeks and Lourens and there were no further objections by other members of the SGB. He said that the email addressed to Mr Titus was sent to him on the basis of the decision they took in the meeting which was held on 5 June 2018. He said that the reason why the minutes (page 24 and page 27) were different was because that the content on page 24 was incorrectly captured because when comparing with his own notes there was a big difference.
39. Prins testified that he asked Mr Freeks to email the minutes of the meeting held on 5 June 2018 to him. When he received the minutes he realized that Arendze has made a mistake by incorrectly capturing the information. He immediately went to the school and informed Freeks that the minutes were not the correct reflection of what was discussed. He however did not discuss this with Arendze; He said that the minute’s remains a draft until the corrections was made in the follow up meeting. Upon which it become an official set of minutes and a true reflection of what was discussed in the previous meeting. At no stage did Arendze indicate to him that she was in disagreement about the minutes. He said he was involved with Ms Arendze when compiling the minutes of the meeting held 16 August 2018. Prins testified that because Arendze has problems with the keeping of the minutes, he took it upon himself to fetch the flash drive and transfer the minutes onto his computer where he made the corrections in line with his hand written notes. Prins insists that the official minutes of 5 June 2018 was the correct version of the minutes.
40. Prins said that he was always of the view that the Department has looked at the curriculum needs of the school and they therefore have the right to make the appointment. His understanding is that the role of the SGB is to make recommendations in order of preference but the Department has the prerogative to make the appointments irrespective the SGB recommendations. He said there was consultation with the SGB on the matter when Titus came to discuss the letter (page 8 in bundle “A”) with the SGB. He also regards the meetings in April and June 2018 as consultative meetings.
41. Prins testified that the bundle “E” is also a set of minutes of the SGB meeting held on 24 April 2018 which was drafted and compiled by Arendze. Prins make certain amendments to the minutes and put the final official set of minutes on the letter head of the school. He confirmed that the signed minutes is the official approved set of minutes which is only signed and confirmed after the corrections are made at a meeting and the minutes are accepted and adopted as the correct and official minutes. The meeting which was held 24 April 2018 was a scheduled general monthly meeting where numerous items were placed and discussed on the agenda and amongst other things also the feedback from Mr Tallie from FEDSAS on the Department’s power to make appointments above the recommendations of the school governing body.
42. Mr Jacob Solomons (“Solomons”) testified under oath that he is a member of the School Governing Body. The current term would be his second term serving on the SGB and he served in particular on the sports and transports committees. He is aware of the letter addressed by the Directorate: Recruitment and Selection (Head Office) (page 8 in bundle “A”). He saw the letter for the first time when Titus brought the letter and explained the Department’s reasons for choosing to appoint number two on the recommendation list. After Titus explained the content of the letter, the SGB discussed the appointment. According to Titus, the Department, in considering the appointment has looked at the Curriculum needs of the school and concludes that the school was in need of somebody with the foundation phase professional qualification and experience and that the second choice (Ms Elsabe Jacobs) was best suited for the post, therefore he (Titus) seek to make an additional proposal to the criteria. He said that he was the one making the proposal to the chairperson that since there were three candidates on the nomination list whether the chairperson would seek an opinion from FEDSAS perspective about the legal position in terms of whether or not the Department was within its right to make an appointment in the presence of the SGB recommendations in order of preference. The SGB agreed to the process and instructed the chairperson to proceed with seeking legal opinion to this matter and to report back at the next meeting.
43. The feedback they received from Prins at the next meeting was that he spoke to Mr Tallie, the FEDSAS representative who explains from a legal perspective why the Department was within their right to make an appointment in the presence of the SGB recommendations and that appointing Jacobs was within their right and mandate. Solomons read into the record, page 5 in bundle “B”; at paragraph 9.5 in Afrikaans as follows: “Mnr Prins het vergadering meegedeel dat hy n epos skrywe op 13 April 2018 aan Mnr Fernando Tallie, die Streeks verteenwoordiger van FEDSAS gestuur het. Mnr Prins het die situasie aan Mnr Tallie verduidelik asook die besoek van Mnr Anton Titus aan die Skool Beheer Liggaam. Die skrywe vanaf die WKOD wat deur Mnr Titus aan die Skool Beheer Liggaam voorgehou het, was ook deur die voorsitter aan Mnr Tallie gestuur. In reaksie op Mnr Prins se skrywe het Mnr Tallie op 16 April 20018 adviseur dat waneer n beheerliggaam twee (2) of drie (3) candidate aanbeveel vir n vakature, word daar by implikasie aanvaar dat enige een eintlik n geskikte kandidaat vir genoemde vakature kan/sal wees en dat the WKOD dienoreenkomstig so kan besluit. Mnr Tallie het ook n afskrif van die advertensie verlang wat ook deur Mnr Prins aan hom voorsien is op 17 April 2018 deur middle van epos. Hy het belowe dat die aangeleentheid aandag geniet. Die vergadering het met dank kennis geneem van die terugvoering deur Mnr Prins”.
44. My translation of paragraph 43 into English: “Mr Prins informed the meeting that he sends an email to Mr Fernando Tallie; the Regional Representative of FEDSAS on 13 April 2018 in which he explained the situation to Tallie. He also informed Tallie about Mr Anton Titus (Circuit Manager) visit to the School Governing Body to discuss the content of the letter dated 6 April 2018 and the Department’s reason for choosing to appoint Ms Jacobs. The letter was also attached to the email. Mr Tallie responded on 16 April 2018 and advised that when a School Governing Body recommended two (2) or three (3) candidates for a vacancy, it means by implication that the “anyone” of the candidates in the nomination list are suitable for the vacancy and may be appointed by the Department. Mr Tallie also requested a copy of the advertisement which was send to him by Prins on 17 April 2018 via email. He promised that the matter will receive urgent attention.
45. The SGB meeting that was held on 5 June 2018 discussed the appointment of the Deputy Principal, but the SGB decided that the decision was in the best interest of the school, the Department must proceed with the appointment of Jacobs on the basis of her foundation phase qualification and experience and Prins was instructed to communicate the SGB decision to Titus. During cross examination, it was put to Solomons that Titus merely communicated the decision already taken by the Department hence he came with the letter in which the Department already set out their decision to appoint Jacobs. Apparently this decision was taken prior to consulting the SGB. Solomons’ response was that Titus brought the letter during which the content was discussed and he also conveyed that the decision was taken by the Department. He said Titus’ precise words to the SGB were that “when the Department took, they would already have considered the needs of the school. He also said that because the Applicant was number one in the recommendations list, does not mean that he should be appointed into the post. The Department has discretion to make a different appointment should the need arises. He further told Mr Freeks that he has a duty to support the Department as the Principal.
46. Solomons conceded to the statement that was made to him that the SGB was not given a choice but to accept the Department’s decision to appoint Jacobs even though the SGB was still aggrieved about the situation. He said that was the reason why they (SGB) instructed Prins to seek an opinion from FEDSAS. He said they (SGB) have attempted to change the Department’s decision because they were not happy. When asking which one of the two sets of minutes was the true reflection of the meeting of 5 June 2018; he responded the page 27 was the correct version.
47. Mr Harry Wyngaard (“Wyngaard”) testified under oath that he is the Deputy Director Recruitment and Selection. His role among other things is promotions of post level 1 posts; Departmental Heads, Deputy Principals and Principals vacancies. Processing and evaluation of qualifications and salary packages of teachers is his responsibility. He occupied this position for more than fifteen years and in total has 40 years of service with the Department. Wyngaard confirms the list of candidates as recommended by the School Governing Body in order of preference. He said when the Department received the nomination list; they escalate the matter District Senior Management to discuss the delegated skills as well as the curriculum needs of the school. They have agreed that the school needed a person with Foundation phase qualification and experience to address the organizational cohesion. In terms of the Employment of Educators 76 of 1998; they must consult and therefore the letter which was discussed with the School Governing Body by Mr Titus was the consultation with the SGB.
48. He said Titus’ feedback to them was that the SGB approved the Department’s decision to appoint Ms Jacobs (number 2) as opposed to Mr Muller (number 1) and Prins inform them accordingly. When the Department received the ‘go ahead’ from the SGB they immediately proceeded to fill the vacancy and appointed Ms Jacobs. He said even if the SGB did not agree with the Department’s choice, the Department would have proceeded by making the appointment of their choice because they have consulted. The vacancy was filled on 1 October 2018. It was put to Wyngaard that Mr Ahmed (NAPTOSA) testified that the Department’s processes was flawed because the Department deviated from the requirements of Resolution 5 of 1998 and Common Understanding 1 of 2002 (Bundle “F”). He was asked to read from Bundle “F” paragraph 1.3.4 as follows: “the emphasis here is on the suitability of the candidate in relation to the needs (e.g. curriculum etc) of the institution/school”. He said his understanding of the Resolution 5 of 1998 was that Ms Jacobs was the most suitable person for the post based on her professional qualification in the Foundation Phase and the operational and curriculum needs of the school. He said in terms of the curriculum needs the Applicant was not the suitable candidate for the post although he (Applicant) has been recommended the number choice by the School Governing Body.
49. The second aspect testified to by Ahmed was that the Departments was also supposed to consult with the trade unions as per the requirements of resolution 5 of 1998. Wyngaard responded that consultation with the trade unions only happens when the SGB has brought additional criteria which according to him were not the case. However, he iterated that the SGB consult while the trade unions only observe. Wyngaard explains that when a vacancy needed to be filled, the Department would look and consider the most suitable candidates for the post and they would also look at the primary criteria for the filling of the post. Wyngaard further refers to the provision of the Employment of Educators Act 76 of 1998 section (6) (3) (f) “Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list”. He said he interpreted the EEA to state that despite the order of preference ad subject to (d); the Head of the Department may look at other areas of skills such as in this particular instance where the Department has considered the curriculum needs of the school or they would have re-advertised the vacancy.
50. Wyngaard referred to bundle “F” and explains what documents are pages 6 and 7. He said that the documents were compiled by the Director General Mr Archie Lewis and in summary the document speaks to the “delegated authority; nominations and appointments of educators at ordinary public schools”. It basically gives an overview of what he already testified about the requirements of Resolution 5 of 1998. In terms of this document the SGB’ responsibility is to make recommendations but the Department has the responsibility to make the appointments and the Department has the final say as far as appointments are concerned. The Department must act in the best interest of the schools in terms of addressing the curriculum needs of the school. According to Wyngaard, there is already a Deputy Principal Senior Primary Phase (Mr Muller) and the school was in need of a Deputy Principal Foundation Phase which would paint a more perfect picture at the school.
51. Wyngaard testified during evidence in chief that he was not aware of any discrepancies regarding the minutes that is alleged to have been tempered with by Prins. He said no such incident/s was reported to him or the Head of Department. Had they been aware they would have stopped the process and re-advertised the post to give all participants a fair chance. He also deny having knowledge that Titus’ purpose prior to the appointment of Jacobs was to influence the SGB to accept the Department’s choice of appointment against the motivation for wanting to make that particular appointment instead of the recommended first choice of preference. As far as he was concerned there was no Foundation Phase Deputy Principal and the Department saw the need and accordingly makes the appointment.
52. Mr Anton Jacobus Titus (“Titus”) testified on affirmation that he is the Circuit Manager for the last four years. Bergsig Primary School falls in circuit 5; under his jurisdiction at the time. He acted as the Resource Person on behalf of the Western Cape Education Department (WCED). His role as Resource Person was to facilitate the procedurally correctness of the recruitment and selection process. He confirmed that the School Governing Body has made a recommendation for the filling of the Deputy Principal position which was vacant. The recommendation in order of preference was Mr Kevin Muller, followed by Ms Elsabe Jacobs and Mr Anthony Damons. The Department issued a letter on 6 April 2018 in response to the recommendation being submitted to the Department by the SGB.
53. He said the letter explains why Muller should be replaced with Jacobs. According to Titus, the biggest part of the school consists of the Foundation Phase and on that basis did the Department look at the number two on the recommendations list (Jacobs) as it addresses the curriculum needs of the school. Jacobs also have the professional qualification and experience in the Foundation Phase and was therefore the best suitable candidate for the position. Also the previous Deputy Principal was a foundation phase teacher while the Department also looked at the organizational cohesion. When he received the letter from the Department he thought that it was a reasonable request and he immediately called a meeting with the SGB to discuss the content of the letter and at the same time to consult with the SGB.
54. Titus said the letter was confidential and he was shocked to learn that Muller has the letter in his possession. He denies having ‘turn the arms of the SGB or that he unduly influenced the SGB into agreeing to the Department’s choice of appointment and reasons thereof. They were fairly patient with the process especially since the SGB was new into power and they afforded the SGB reasonable opportunity to obtain second opinion from FEDSAS. He received an email from Prins informing him of the SGB decision to approve the Department’s choice of appointment and the motivation thereof. After the appointment was confirmed, the Applicant lodged a grievance against the process over which Titus presided. Titus agrees that no mention was made about the foundation Phase as a criterion for qualification to the post. He was not involved with drawing up the advertisement and he could therefore not say why the foundation phase was omitted from the criteria. However, the advertisement does speak to the Curriculum delivery which he believes also covers the foundation phase. This therefore means that that the post is filled with curriculum aspects as listed in the advertisement. Jacobs was the best choice due to her meeting the requirements of the foundation phase teacher whereas the Applicant has specific areas of expertise and as a result of curricular needs, Jacobs was the one candidate standing out from the rest of the candidature.
55. Titus denies allegations that he might have influenced the decision of the SGB because his biggest role amongst others was to look at the procedural correctness in an advisory capacity. He was an observer and could not be too involved in the processes and decision-making other than to give guidance. He said he only received the letter from the Department upon which he was task to consult with the SGB around the content of the letter. According to Titus, both candidates (Muller and Jacobs) was suitable for the post but Jacobs stood out with her meeting the foundation phase requirements in line with the curriculum needs of the school and organizational cohesion. He said when he visited the school as the Circuit Manager, Jacobs was one of the reliable teachers when called upon to explain certain curricular issues, the Principal would always call on her to provide the necessary guidance and information and so she has always played a leading role as far as such issues were concerned. During cross examination he was Titus was asked given his response, whether his interpretation may have been subjective. He answered that it was not. He re-emphasized his role as the Resource Person saying he must ensure from an administrative perspective that the procedures are followed correctly; he must look at the lawfulness of the process and he must accordingly advise where necessary.
56. Titus confirms that he was involved with the process from the beginning right through to the end. He said that no mention was made about the Foundation Phase in his deliberations with the SGB. However, he maintained that the advertisement speaks to the Curriculum delivery which he believes covers all areas of the curriculum needs of which the Foundation Phase forms part. As an observer, he does not have an opinion. He said he totally agree with the Departments view as he is of the view that organizational coherence take preference above all other matters of concern. The Department therefore has the right to modify the criteria in order to find the best suitable candidate for the post and the only yardsticks used to conclude as such was (1) organizational coherence and (2) curriculum needs of the school. However, coming to Employment Equity or Curricular needs; Titus is of the view that either way, one can interpret the fact that a woman was appointed into the position, as Employment Equity. He said his interpretation in regards to section 6 (3) of the Employment of Educators Act 76 of 1998 is that the Head of Department has the right to appoint any one of the three candidates nominated irrespective the order of preference. They therefore acted within their right to appoint Jacobs.
ANALYSIS OF EVIDENCE AND ARGUMENT
57. The Applicant’s claim is in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended which reads as follows: ‘unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving-
(a) 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”.
58. The burden of proof rest with the Applicant. It is common cause that the Applicant was one of three candidates that applied for the vacant position of Deputy Principal at Bergsig Primary School. The Applicant was shortlisted and interviewed and he was rated the top candidate and subsequently also recommended by the School Governing Body as the number one candidate which nominations list was submitted to the Western Cape Education Department (WCED) in order of preference. This procedure is specifically outlined in the Employment of Educators Act 76 of 1998 as amended; section 6 (3) (c) states that “the governing body must submit, in order of preference to the Head of Department, a list; at least three names of recommended candidates; or fewer that three in consultation with the Head of Department”.
59. The Applicant’s case is that the procedure outlined above was followed to the letter by the SGB. However, subsection (c) states that “when the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making an appointment, ensure that the governing body has met the requirements in paragraph (b).
60. It is common cause that the Applicant was not appointed into the position irrespective of being the SGB’ number one recommendation but the second best candidate (Ms Elsabe Jacobs); on the basis that Jacobs has a professional qualification and experience in Foundation Phase and therefore becomes the best suitable candidate for the position. This has been strongly confirmed by both Respondents’ witnesses, Harry Wyngaard and Anton Titus. It is also common cause that no mention was made in the advertisement about the foundation phase qualification and experience as a prerequisite for the vacancy and neither was this discussed in a consultative meeting with the School Governing Body (SGB) prior to drawing up the advertisement and unchallenged evidence is, that no questions to that effect was asked in the interviews.
61. It is now alleged by the Applicant that the foundation phase was added as an additional criteria by the Department. Had it been part of the advertisement from the start, the Applicant would not have applied for the position because he knew he would have been unsuccessful with his application. Mr Anton Titus’ own evidence is that he was not involved with the drawing up of the advertisement and he also could not say why the foundation phase was not made mention in the advertisement and or the interviews.
62. I find it extremely odd that this specific aspect was not at the center of all the discussions relating to filling the post. Titus was the Resource Person who has been involved with the process right from the start to the end. I do not believe that Titus was not involved with the content of the advertisement from inception. He would have easily picked up that if it were the Department’s intention to also address the Foundation Phase as part of the broader picture of Curriculum delivery, thorough discussions with specific reference to the Foundation Phase would have surfaced.
63. He may not have been involved in the drawing up of the advertisement, but logic dictates that he would have been part of the broader discussion about the advert content. They would have discussed the curriculum needs of the school during which the foundation phase would have been at the center of the discussion. Furthermore, foundation phase would have also been at the center of the interviews had this been part thereof especially since it has now become an extra prerequisite to qualify for the post.
64. What is also in question is that the decision was already made by the Department. I say this for the following reasons: When Titus meet with the SGB about the content of the letter, the letter was already pre-drafted which gives me the impression that all that was left, was for Titus to take leadership by carrying out the mandate of the Department by convincing the SGB to accept the Department’s choice of appointment. In his evidence, Titus used words such as “he agrees with the Department”; “the Department has acted within its right”; “even if the SGB did not accept the outcome, the Department would still have continued to make the appointment of their choice”. Jacob Solomon’s evidence confirms this notion of Titus having been more biased towards the Department’s position to the point that Titus would have said to Mr Freeks (former Principal) that he must support the Department. Secondly, this has clearly come as a shock to the SGB because they were clearly not happy with the outcome. Here, I picked up a number of contradictions in the evidence led by Respondent witnesses which I shall now point out. Firstly, Prins’ evidence is that the entire SGB attended the meeting in which this matter was discussed accept for one member of the SGB by the name of Claassen. This by implication means that the SGB meeting has quorate and therefore any decision would have easily gone through when it comes to a vote.
65. Two members of the SGB were unhappy with the decision. They were Freeks and Lourens. However, Jacob Solomons’ evidence was that the SGB instructed Prins to liaise with FEDSAS on the matter. His choice of words was that “they wanted Muller as the Deputy Principal; hence they instructed Prins to liaise with FEDSAS and provide feedback at the next meeting”. When he (Solomons) was confronted with the proposition by the Applicant’s representative to say that he concludes that the SGB did not have a choice but to accept the Department’s decision, Solomons responded “no they did not have a choice but to accept the decision of the Department” he said in Afrikaans “want ons het probeer, dis hoekom ons met FEDSAS gepraat het”. “Ons het besluit om by nommer 1 te bly; as dit dit geval is moet die Departement maar self die aangeleentheid hanteer”. This to me is a clear indication that more than two members of the SGB was unhappy about the Department’s decision because if it was only two SGB members that were unhappy, the majority rule principle would have been the only way out.
66. I am also extremely concerned about the subjective views expressed by Titus which emanate from prior (unrelated) occasions. Titus is on record to have said as part of his evidence that in the past when he used to visit the school when he was still the circuit manager within which jurisdiction this school falls, he was so impressed with Ms Jacobs because she was the only person the Principal could call upon to respond to curriculum issues. This is clearly his subjective views about Jacobs. I think this was an unfair expression of Titus’ own view and indeed subjective to the course. His own evidence is that he could be too much involved other than to observe and give guidance. This was clearly not the case. Titus’ main objective was to have the Department’s choice of appointment approved.
67. The chairperson of the SGB, Mr Lionel Prins’ conduct must also be critically looked at. I find it extremely odd that Prins borrowed the flash drive of the Secretary of the SGB and make the corrections or amendments to the minutes. Prins did not discuss the changes with the Secretary but with Freeks yet he’s now criticizing her ability to keep accurate record. This was not his place to amend the minutes according to his own understanding in the absence of an official quorum of the meeting. Prins never presented his own notes in the arbitration. There are two sets of minutes of the meeting held on 5 June 2018 (pages 24 to 25 and page 27). When comparing the two versions of minutes of the same meeting, the content does not conform to each other. For instance; page 24 which according to the Secretary is the true reflection of the minutes of the meeting held on 5 June 2018 at point 8 deals with the FEDSAS response very briefly (three lines). However, page 27 at point 8 also mentioned the FEDSAS response in its brief form with the changes being made as follows: Page 24 point states “FEDSAS: Mnr Prins wag nog vir terugvoering. Mnr Tallie voer ligitiewe redes aan hoekom Departement aanstelling gedoen het. BHL bly in beginsel by hul besluit. Departement moet proses self afhandel”.
68. Page 27 however, reflects an extension of the discussion with regards to the FEDSAS point on the agenda. It states in Afrikaans that “Mnr Prins wag nog vir terugvoering. Mnr Tallie voer ligitiewe redes aan hoekom Departement aanstelling gedoen het. Na in diepte bespreking van hierdie aangeleentheid verder het die vergadering die volgende besluit geneem. Dat in belang van die skool in sy werksaamhede die WKOD mag voortgaan met die aanstelling van Me Jacobs as adjunk prinsipaal. Die WKOD neem kennis dat die SBL steeds op record plaas dat hy (SBL) nogsteeds gegrief voel mbt die feit dat Mnr Muller die eerste keuse was van die SBL, maar ook bewus is dat die prerogatief van die WKOD is. Dat Mnr Titus met betrekking tot hierdie besluit ingelig word”. Here, it is clear that changes were made by Prins to fit in with the Department’s decision. Having heard the evidence from Solomons (Respondent’s witness) and Arendze (Applicant’s witness) the evidence in this regard confirms my findings. I have no doubt that the minutes in page 27 in bundle “A” was the edited version not the original set of minutes (page 24). I concur with the evidence of Arendze in this regard.
69. Further to this I agree with Wyngaard that Arendze should have reported this discrepancy to the Head of Department. However, given the fact that the SGB was fairly new there was this notion of leniency and trust towards the newly elected SGB, even Titus testified to this leniency; they were patiently waiting for the SGB to settle in. In considering this leniency and patience with the newly elected SGB, one tend to lean more towards the argument that Arendze signed off on the minutes of the meetings held on 24 April 2018 and 16 August 2018 respectively in error because she has no reason to distrust Prins. As soon as she becomes known of the discrepancy with the minutes of the meeting held on 5 June 2018, she refused to sign off on the minutes.
70. Just after the meeting where one wonders whether there was consensus Prins wrote an email to Titus on 26 June 2018 indicating the SGB approval of the Department’s choice of appointment. The email go on to say that the SGB was still aggrieved about the fact that their number one choice was not appointed and that they are however aware of the Department’s prerogative to make the appointment. This brings me to the interpretation of the provisions of the Employment of Educators Act 76 of 1996; section 6 (3) (a) makes very specific reference to the role of the SGB. It states that “subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school”. This provision of the EEA seems to give clear expression to the role of the governing body when it comes to making appointments otherwise the system of nominating and submitting recommendations to the Head of Education by the governing body would not have been one that is necessary. This happens for a reason and in the main to ensure that parent participation is at the order of the day.
71. The role of the Head of Education only finds expression, ‘subject’ to (on condition) to first complying with certain other procedural aspects as contemplated by the EEA. So for instance; section 6 (3) (f) of the Employment of Educators Act 76 of 1998 states that ‘Despite’ (notwithstanding/regardless of) the order of preference in paragraph (c) and ‘subject’ (on condition) to paragraph (d), the Head of Department may appoint any suitable candidate on the list”. This does not necessarily taking away the Department’s prerogative to make an appointment on own accord or to confirm a recommendation, it simply states that before proceeding with making the appointment, the Department must ensure that the governing body has complied with their legal function in terms of the process; i.e. after the shortlisting and interviews are completed, that the nominations list is prepared and recommendations are made in order of preference. If this was not done, then the Department is within their right to decline the recommendation in which instance, the Department may re-advertise of/ and or appoint any suitable candidate from the recommendations list. The term ‘on condition’ clearly refers to action/s that needed to be effected before another thing/action happens.
72. This particular role can only find expression once paragraph (c) was complied with by the governing body and provided that paragraph (d) was adhered to. In other words, the Head of Department’s ultimate responsibility is to ensure that the nominations are done and recommendations were made by the governing body in a procedurally fair manner. This provision specifically use the term ‘when the Head of Department “Considers” the recommendation spoke about in paragraph (c), he or she must, before making the appointment, ensure that the governing body has met the requirements in paragraph (b). So the recommendations by the governing body are something that must be considered by the Head of Department before making the appointment.
73. My interpretation of the provision of the EEA is that the Head of Department’s mandate to deviate from the normal procedures is locked up in two very specific principles, namely; firstly when dealing with an application/s in terms of meeting its Employment Equity targets, i.e.(Equity, Redress and Representivity) in which case section 6 (3) (b) comes into being and must always be considered when making appointments and secondly, when a recommendation is declined for some reason, section 6 (3) (e) and (f) will find expression. It is the Respondent’s case that the recommendation was declined on the basis that the Applicant was not the best suitable candidate for the position due to his lack of a Professional Qualification in the Foundation Phase. If one were to take away the foundation phase as a criteria, the Applicant meets all the requirements to qualify for the post.
74. This takes me to a critical question as to whether or not the intentions of the drafters of the advertisement was that the Foundation Phase be one core criteria for filling the post. My answer is a simple ‘no’ because the drafters would have make mention of such an important aspect which forms the basis of the core criteria. As I have said earlier, that Foundation Phase experience would have been at the center of (1) the advertisement; (2) all subsequent discussions with SGB and (3) it would have form the center of attraction in or during the interview because ultimately, this is what the potential incumbent must sell him or her for before the panel of interviewers. I must emphasize that I do not agree with the argument that curriculum delivery covers the foundation phase because it should have been discussed. It is then unfair to amend the criteria after the interviews because the interviews were based on the content of the advertisement which advertisement in my view is comprehensively compiled. The Applicant was clearly deprived of an opportunity to be promoted.
75. Having heard and considered the evidence in its totality, I find that the Respondent’s actions amount to unfair labour practice relating to promotion. The Applicant seeks to be appointed into the position. I have taken into account the amount of disruption if I were to order the Applicant to be appointed into the position I foreseen a disruption to a large degree in the operations and curriculum delivery of the school. I am therefore of the considered view that five months compensation to be awarded to the Applicant should be just and equitable under the circumstances. Here follow my reasons: The Applicant was gravely and grossly deprived of a promoted position which would have earned him an increase in salary. The Department has made a critical mistake by adding additional criteria after the interviews were completed. This was grossly unfair. When realizing that this was a critical requirement to qualify for the post, the Department should have re-advertised the position whereby all the participants should have been given an opportunity to take part in the process from scratch. The Department failed to do that and therefore committed an unfair labour practice relating to promotion.
76. My calculations are as follows: The Applicant’s basic salary is at R34 650. 25 x 5 months = R173 250. 00.
77. In the premise therefore, I make the following award:
AWARD
78. The Respondent Western Cape Education Department (WCED) has committed an Unfair Labour Practice relating to promotion against the Applicant, Mr Kevin Ronald Muller.
79. The Respondent Western Cape Education Department is ordered to pay financial compensation to the Applicant, Mr Kevin Ronald Muller; an amount equal to five months remuneration of R173 250. 00 by no later than 31 July 2019.
80. There is no order as to costs.
Signature:
Commissioner:Jacobus Simon Du Plessis
Sector: