Case Number: PSES 432-18/19
Applicant: Y. NAIDOO
Respondent: DEPARTMENT OF EDUCATION – KZN & THE JOINDER PARTY T.D GOVENDER
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 11 March 2020
Arbitrator: Tyron Baker
EDUCATION LABOUR RELATION COUNCIL
Commissioner: Tyron Baker
Case No: PSES 432-18/19
Date of Award: 11 March 2020
In the ARBITRATION between:
Y. NAIDOO (UNION/APPLICANT)
DEPARTMENT OF EDUCATION – KZN & THE JOINDER PARTY T.D GOVENDER (RESPONDENT)
Union/Applicant’s representative : Anand – NEPAUL
Email : firstname.lastname@example.org
Respondent’s representative : Mr Mtungwa – L.R
Practitioner for the DOE.
Respondent’s contact details
Telephone : 083 983 6705
Fax : 083 983 6705
1. DETAILS OF HEARING AND REPRESENTATION
2. This Arbitration was held on the following dates at various venues 17th May 2019; 25th July 2019; 26th July 2019; 10th October 2019; 10th October 2019; 16th October 2019; 22nd October 2019 and the 28th February 2020.
3. The Applicant Mr. Naidoo Y was represented by Mr. A Nepaul, an attorney based in Durban and assisted by Mr. Makhanya and the Respondent was represented by Mr. Mtungwa, its Labour Relations Official.
4. The joinder Applicant Mr. T. D. Govender was represented by a union official.
5. The arbitration was recorded digitally and manually.
6. The respondent party handed in a bundle of documents marked as annexure “B”. The Applicant party handed in bundle of documents marked as annexure “A”, “D” and “E”. The documents were accepted as what it purported to be.
7. The Applicant, Respondent representative, joinder and joinder’s representative were all employed as educators at P.R. Pather Secondary School in various positions. They were all employed by the Department of Education who provides education to its learners in the country.
8. ISSUES TO BE DECIDED
9. The issue in dispute is whether the second Respondent was procedurally and substantively fairly appointed to the post of principal. The Applicant party claims that the procedure was completely floored and seeks that he be appointed to the post.
10. BACKGROUND TO THE ISSUE
11. The Applicant was employed by the Department of Education since the 1st January 1981 up to date as an educator. He obtained the following qualification whilst employed: Junior Secondary Diploma, Diploma in Education, Bachelor of Education and an Honors Degree in Education. He is currently the Deputy Principal at P.R. Pather Secondary School since the 1st July 2003. He was currently the acting Principal as a Deputy Director at the school when this post was advertised.
12. He was the head of Department for Math’s and Science prior to applying for the post of Acting Principal. There was no other principal at the school at the time. The current principal only acted as principal for 4 months. The Applicant seeks to be appointed to the post of Principal at P.R. Pather Secondary School.
13. The Applicant testified that, when the school was undergoing a financial crisis, he dealt with this crisis by calling an urgent governing body meeting where he arranged a dinner event and collected a sum of money to the amount of fifty five thousand rand. He made attempts to get school sponsors, collect outstanding school fees, repaired parts of the school and made representations to SAPREF to sponsor the school and this was accepted. The school was running well under his leadership.
14. The Applicant confirmed that block “D” was his application form on page 2 of bundle A. He was further referred to page 6(1) (d) of bundle A, Respondents bundle where it was confirmed that the 2nd Respondent listed one language that he could speak.
15. The Applicant was referred to block E of the 2nd Respondents application form which revealed what type of matric the second Respondent had obtained and what advanced certificate he obtained from completing a two year diploma.
16. The Applicant was referred to page 2, block F of bundle A, where he gave his work experience as where he was the Acting Principal of P.R. Pather Secondary School since 1981 to 2017. The 2nd Respondent was employed by the Department of Education since the 1st January 1981, as an educator, he taught at the following schools Drakensburg Secondary from January 198 to 1985, teaching the subject Accounting, then at Strectzia Secondary School teaching Accounting from January 1986 and then at P.R. Pather as Head of Department, where he also taught the subject of Accounting up to January 2017. He has 36 years of teaching experience.
17. The second Respondent did not give his work experience in terms of his Z83 Application form at page 7 in block “E” of bundle ”B”.
18. The Applicant’s representative compared the CV’s of the Applicant and second Representative in the following dimension at page 9 & 10, of bundle “B”.
• Organizational ability and experience
• Professional Development and
• Leadership; community related.
19. In view of paragraph 17, it was evident that the Applicant outweighed the second Respondent, in terms of the Applicants CV.
20. The Applicant testified that the principal post of P.R. Pather School was advertised in HRM 39 of 2017, post number 415 for which he applied. He was shortlisted and attended the interview process.
21. He testified that the interview committee consisted of the following:
Chairperson : Mr. Y. Vawda
Members : D. Govindasamy
: L. Manuel
: S. Madan
: N. Pather
Departmental Nominee : Mr. S. Naicker
Observers : SADTU : J.B. Ntombela
: CTUATU : Mrs. L. Cook
22. He testified that Mr. Naiker was the SCM and that no one was acting as his nominee. It did not allow Mr. Naiker to score during the interview process Mr. Vawda was also involved in his interview process which was not permitted.
23. He testified that he had complained to the SCM that Mr. Vawda must excuse himself and was told by the SCM not to confuse issues. He testified that Mr. Vwada and the 2nd respondent were in discussion about the interview. He testified that he also had an altercation with Mr. Naicker prior to the interview, where school parents were involved and Mr. Naicker did not approach him, but the 2 Respondent to discuss the matter although he was acting principal.
24. The onus to prove that the 2nd Respondent had been both procedurally and substantively appointed as principle lies with the Respondent.
25. The Respondent was able to briefly explain how the process at the interview was conducted. The witnesses testified that the process was normal and acceptable and that no problems or incidences occurred so as to deem the interview unfair.
26. The Respondent testified that the second Respondent had been the best candidate at the interview in accordance with what an acceptable and fair process would expect. The applicant was deemed to have come out only third during the interview process and therefore was being over realistic in his claims that he was the best candidate at the interview.
27. The Applicant party argued that Respondent was not able to show or prove the fair procedure that had been conducted in and during the interview.
28. The Respondent could not explain as to what fair process had been conducted regarding the incident and allegations between the nominee, Mr. Naicker who was an intrical part of the interviewing panel.
29. The score sheets and other selection processes were not available for the commissioner to inspect, observe and listen to arguments and presentations from the parties on the evaluation issue in question.
30. The second respondent was not cooperative in supporting or defending his appointment and further to this he withdrew from the arbitration process.
31. After hearing and considering the parties’ presentations, evidence and arguments, on a balance of probability, I am not persuaded that the respondent had managed to fully and successfully prove that the interview process was just and fair. I was not privy to some very important aspects of the scores and results of each candidate and therefore can only go by what the Applicant party had claimed and argued.
32. It was seemingly the Applicant that gave the most convincing facts, aspects and argument to show good cause that it should be realistically considered that the interview was flawed both procedurally and substantively.
33. The applicant argued that the second respondent should not have been appointed as the principle because of the probable facts that he was not truly the best candidate. As much as I am persuaded that the responsibility of the interviewing panel each have a select number of facts and reasons to consider, they eventually have to have their scores, facts and reasons weighed and coupled together so as to choose the best candidate.
34. One cannot selectively choose some of the strong factors and ignore the other aspects when challenging any appointment. However whatever these reasons may have been they cannot be guest and then hidden from being challenged. This aspect is very important for any argument to be successful at arbitration.
35. The Applicant has successfully argued that there was a considerable amount of missing aspects to prove that the interview was fair and just. The applicant did not prove that he was the only candidate that should have been successful for the appointment. The only fair procedure would be to advertise the post again and allow the interviewing process to take its course.
36. The interview was not conducted fairly.
37. The post has already been advertised on the 28/02/2020