Case Number: PSES 761-18/19 NC
Province: Northern Cape
Applicant: Mrs Elmarie Mostert
Respondent: 1st Respondent Department of Education Northern Cape and 2nd Respondent Ms. Kolberg
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 2 December 2019
Arbitrator: M.A. HAWYES
Case Number: PSES 761-18/19 NC
Commissioner: M.A. HAWYES
Date of Award: 2 December 2019
In the ARBITRATION between
Mrs Elmarie Mostert
Northern Cape Department of Education (First Respondent)
Ms. Kolberg (Second Respondent)
Union/Applicant’s representative: N. Williams(Counsel)
Telephone: 082 783 1328
First and Second Respondent’s representative: Mr. T. Obusitse 053- 830 1675 / 083 248 0801
Mr. D. Snaar 053-832 1266
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration on the 21st and 22nd November 2019 and finalized on these two days.
2. The parties requested and were granted the opportunity to submit written closing arguments by the 29th November 2019. Written arguments were timeously received. My award now follows.
3. Adv. N. Williams represented the Applicant, Elmarie Mostert. Mr. T. Obusitse, a Labour Relations official, represented the First Respondent, Northern Cape Department of Education. Mr. D. Snaar, a union official from NAPTOSA, represented the Second Respondent, Ms. Kolberg.
ISSUE IN DISPUTE
4. Whether the Respondent committed an unfair labour practice related to promotion by failing to appoint the Applicant to the advertised HOD (PL2) post at !Xunkhwesa Combined School, Platfontein, in 2018.
BACKGROUND TO THE ISSUE IN DISPUTE
5. The Respondent employed the Applicant as a post level one educator and the Applicant had been so employed since the 1st January 1990. The Applicant had been employed at !Xunkhwesa Combined School since the 1st January 2015.
6. The post of departmental head (HoD) post number 201807/0038 was advertised on the 20th July 2018 and closed on the 10th August 2018. The Applicant was shortlisted for the said post and attended the interview on the 27th September 2018. The Applicant was one of the three recommended candidates by the interview panel.
7. The recruitment process was done by an alleged independent panel appointed by the First Respondent. The legality of this panel will need to be established given the surrounding circumstances prevailing at the school at the time of the said appointment. The Second Respondent was the successful candidate and was appointed in the said post on the 1st January 2019.
8. Each party utilized a bundle of documents and various additions were made to both bundles during the course of the arbitration. The proceedings were digitally recorded and detailed handwritten notes were also kept.
9. It is important to remember that I have considered all the evidence lead but will only refer to the most salient aspects of that evidence in arriving at my decision.
SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT
10. The Applicant testified under oath and led the evidence of the following subpoenaed witnesses namely the current SGB Chairperson Mr. J. Marenda, school Principal Mr. N. Snyder’s and the Circuit Manager Mrs. Merementsi.
11. The motivation by the Applicant’s legal representative for calling the latter two witnesses was that the Applicant bore the onus of proving that her non appointment was substantively and procedurally unfair. It became evident during the course of Snyder’s and Merementsi’s testimony that they were not giving evidence entirely favorable to the Applicant and it became necessary to declare them hostile witnesses so that Williams was able to cross examine them.
12. The Applicant testified, inter alia, that the Principal and she did not have a good relationship and that the Principal had given some indication during a briefing meeting to the whole school that the Second Respondent would be appointed to the advertised HoD post. She contended that the two instances of community protests at the time of the recruitment process that involved her at the school were incited by and lead by the Principal.
13. The Applicant also testified that the community had wanted to kill her and that she should leave the Platfontein area. She had to be escorted off the school premises by the SAPS Flying Squad on the second occasion.
14. It is common cause that the Applicant has been on extended sick leave since the second community protest at the school and had not returned to the school as of that time.
15. The Applicant testified that she deserved to be appointed to the HoD post primarily because she had 26 years teaching experience and the current incumbent only had 11 years’ experience. Too much weight had been attached to the management aspect of the position and the Applicant contended that the Principal had denied her the opportunity to act in the position prior to the recruitment process.
16. The Applicant asserted that the appointment of the independent panel chaired by Merementsi was illegal and breached the relevant provisions of Collective Agreement 3 of 2016, The Northern Cape Department of Education Vacancy Circular dated the 20th July 2018 and the revised Personal Administrative Measures (PAM). It was argued that any promotional appointment made without the involvement and recommendation of the SGB is unlawful and ultra vires. The Applicant asked to be appointed retrospectively into the position alternatively to be awarded 12 months compensation.
17. Marenda testified that the SGB was elected on the 20th March 2018 and received training on the 17th April 2018. He confirmed that he had signed a letter (Bundle A32) as Chairperson of the SGB handing over authority to the First Respondent to convene an independent panel to conduct the recruitment process for the contested HoD post and one other.
18. Marenda confirmed that he had read the contents of the letter prior to signing it and had trusted the Principal when he said he was acting in the best interests of the school. After signing the letter he became concerned that what he had signed was illegal and he sought unsuccessfully to convene three SGB meetings. On each occasion the Principal was unavailable.
19. It later came to light that Marenda and the Principal were involved in litigation against each other and the First Respondent. Interdicts had been obtained by both the Principal and Marenda against each other.
20. Snyder’s testified that he was appointed at the school as Principal on the 1st January 2017. He testified further that there were various issues at the school, one of which was that the Applicant had applied for various promotional posts in the past and had lodged disputes with each of them. It is common cause that in addition to the current dispute before me the Applicant has two additional live disputes sub iudice before other Panelists of the ELRC.
21. Snyder’s confirmed that in a short space of time he and SGB Chairperson Marenda had had various differences with each other that had eventually played out in the High Court.
22. The Applicant’s husband had interfered with the school processes and had continually wanted to know why his wife was not appointed into the various positions she had applied for. He contacted Marenda telephonically and arranged to meet him. They sat in his car and Marenda had read the letter before signing it. He admitted that he had suggested to four potential HoD candidates including the Applicant at the beginning of 2018 that they each act for a quarter but only one person would officially be appointed to the acting position and be paid a salary. The acting allowance would be drawn out and shared by each of the acting incumbents. Snyder’s admitted that this was not allowed by procedure and he was later disciplined by the First Respondent but his motive was to fairly give everyone in contention a chance to act as a HoD. The Applicant had no issues with this arrangement at the time.
23. Snyder’s submitted further that there were two HoD posts and both of these posts were shortlisted and interviewed by the independent panel. However, Marenda had only raised issues with the post that the Applicant had disputed. He denied wanting to prejudice the Applicant in any way, in fact it was his specific intention to help her.
24. Snyder’s specifically testified that the SGB had a meeting and resolved that an independent panel should be appointed for the sake of impartiality because of the continual disputes lodged by the Applicant.
25. The points allocated to the Applicant and the Second Respondent was consistent with the selection criteria and thus fair.
26. Merementsi testified that she was the Chairperson of the independent panel tasked with the shortlisting and interviews of the recruitment process involving the Applicant. She testified further that the SGB had made a request for an independent panel to assist them and the First Respondent had obliged. The Applicant scored the same amount of points as the 2nd Respondent during the initial shortlisting (36 points) but by her own admission had fallen a little short during the interviews due to being nervous. The panel scored the Applicant no 3 for the HoD position.
27. Merementsi emphasized that she had no problems with the Applicant and all the candidates were treated equally. She supported by Snyder’s offered information that the Applicant had received a donation of R20000 for her community work and had made promises to certain individuals to clean a field but did not pay everyone who had worked. This caused unrest and discontent in the community. The community is particularly poor and unfulfilled promises of the payment of money caused huge fury amongst certain community members.
28. Merementsi mentioned that the Applicant had not raised any objections to the process during the interviews.
SURVEY OF RESPONDENTS’ EVIDENCE AND ARGUMENT
29. The Respondents’ had no witnesses to call. Obusitse indicated that he would have lead the testimony of Snyder’s and Merementsi as part of his case but they were subpoenaed to testify on behalf of the Applicant. He argued that Marenda’s claim that he had signed the letter giving permission for the independent panel to be established under false pretenses was unfounded and highly improbable.
30. Obusitse also argued that there was no evidence on record to link Snyder’s to the community protest against the Applicant. The situation at the school was not normal and the normal selection and recruitment processes could not be adhered to. As such the First Respondent relied upon the provisions of section 28 (2) of the Constitution of South Africa to appoint an independent recruitment panel to ensure that the HoD appointments were timeously made. This ensured that the best interests of the learners were served.
ANALYSIS OF EVIDENCE AND ARGUMENT
31. The first matter requiring a decision is whether normal circumstances prevailed at the school. I was somewhat shocked to hear that Snyder’s and Marenda were at loggerheads with each other to the extent that they had litigated against each other in the High Court. Marenda did not volunteer this information during his evidence but Snyder’s did.
32. I was not impressed with the testimony of Marenda. I gained the distinct impression that he was withholding information and this later proved to be true. It is also highly improbable that Marenda would have signed the letter presented to him by Snyder’s if it were not backed by an earlier SGB decision given the obvious low levels of trust between him and the Principal. Snyder’s was able to produce minutes of the SGB meeting in question.
33. I find that Marenda blatantly lied when he testified that he signed the letter given to Snyder’s because he trusted him. Despite the serious allegations of bias leveled at Snyder’s I found him to be a calm, level headed witness who appeared to have no specific axe to grind with the Applicant.
34. Snyder’s admitted to breaking policy with regard to the Acting HoD post in 2018 but I accept that his motive was to avoid the perception of bias even if it meant bending the rules to achieve that objective. Snyder’s freely admitted that he was disciplined by the First Respondent after his endeavors were made known and the single appointment of the 2nd Respondent was eventually actioned.
35. I also found Merementsi to be a good witness despite the odd inconsistency between her evidence and that of Snyder’s. I found no evidence of bias in her general demeanor and she struck me as a manager attempting to make a tough decision in a difficult situation.
36. Both Snyder’s and Merementsi were declared hostile witnesses because their testimony contradicted the testimony of the Applicant. It is important to note that this in no way affects their general veracity. As it turns out they were firm and for the most part consistent witnesses for the versions of the 1st and 2nd Respondent’s.
37. I was not impressed with the testimony of the Applicant. I find that she misrepresented a picture of Snyder’s and Merementsi as biased witnesses’ intent at all costs on securing her downfall. This was simply not true. The Applicant blamed Snyder’s for instigating the community violence against her. This too was simply not true. It was also improbable that a person who had been a Principal in a Khoisan community for just over a year could have that much influence over community members in such a short space of time. Indeed what would his motive have been to do that since he had a school to run. I find that an attempt was made by the First Respondent to temporarily transfer the Applicant for her own safety after the second bout of community unrest against her and for no other reasons.
38. I also find that the community fury against the Applicant was probably occasioned by the Applicant’s own deeds or misdeeds given the amount of time she had lived and worked in the community. I find that the inability of Snyder’s and Marenda to work together rendered the SGB de facto dysfunctional and given the low levels of trust between them and previous dispute referrals involving the Applicant it could not be business as normal.
39. The rules as they have most articulately been detailed by Adv. Edwards in the presentation of the Applicant’s case and in his written closing arguments apply to what must happen in a normal functioning SGB faced with a recruitment process. This was not a normal functioning SGB and nor were the circumstances at the school normal by any stretch of the imagination.
40. The subordinate legislation details what must be done in normal ordinary circumstances but is deathly quiet on what must happen in the case of disorder and dysfunction.
41. I find that the 1st Respondent’s appeal to higher constitutional imperatives of acting in the best interests of the child to be most sound. The Constitutional Court decision contained in In the Governing Body of Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) and its interpretation of section 28 (2) of the Constitution of South Africa indeed imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of a child enjoy paramount importance in their decisions. Statutes must be interpreted and the common law developed in a manner which favors protecting and advancing the interests of children. Courts and arbitrators are bound to give consideration to the effect their decisions will have on children’s lives.
42. I find that the necessary duty has fallen upon me to develop the common law (as far as I am able) when the 1st Respondent finds itself confronted with the untenable situation of having to deal with a dysfunctional and an ineffective SGB. When posts are advertised recruitment processes must be commenced and finalized with the necessary speed to ensure that the school infrastructure dedicated to educating learners continues to function optimally. This is in the best interests of the children attending that school. Independent panels must be convened as a last resort to conduct recruit processes and every attempt must be made to maintain impartiality in subsequent decision making.
43. I accordingly find that the appointment of the independent panel in this case was justified and thus procedurally fair.
44. I turn now to the substantive fairness of the 2nd Respondent’s appointment as HoD at the school. The Applicant’s main argument is that she has far more teaching experience than the 2nd Respondent and thus, on this basis alone, she should have been appointed to the position. The Applicant tried to underplay the importance of management in the appointment of a HoD. Like it or not this is an important requirement for the position. The Applicant had never acted as HoD whilst the 2nd Respondent had.
45. I find that there is no credible evidence that the Applicant was prevented by Snyder’s from acting as HoD at the school. Teaching experience (however long) does not translate into good management skills and no experience in acting in the HoD role complicates matters.
46. Based on my observations of demeanor at the arbitration hearing I find that the 2nd Respondent appears to be the more suitable candidate for the position.
47. I also find that the 1st Respondent did not act frivolously, capriciously or unreasonably in appointing the 2nd Respondent. As such I have no basis to interfere with the decision of the independent recruitment panel appointed by the 1st Respondent.
48. The First Respondent, Northern Cape Department of Education in not appointing the Applicant, Elmarie Mostert to the advertised HoD (PL2) post at !Xunkhwesa Combined School, Platfontein in 2018 did not perpetrate an unfair labour practice. The Applicant’s dispute referral is therefore dismissed.