ELRC584-19/20WC
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ELRC584-19/20WC
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Award Date:
07 April 2021
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IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN
Case Number ELRC584-19/20WC
In the matter between
NAPTOSA ON BEHALF OF JUDITH MICHAELS
Applicant
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
First Respondent
SADTU ON BEHALF OF C. HOPLEY
Second Respondent
ARBITRATION AWARD
________________________________________________________________
ARBITRATOR: L. MARTIN
HEARD: 27 January 2021, 18 February 2021, 19 February 2021 and 15 March 2021
DATE OF AWARD: 7 APRIL 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - alleged unfair conduct relating to promotion
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration was held via Zoom online platform on 27 January, 18 February, 19 February and 15 March 2021. The applicant, Mrs J. Michaels (Michaels), was represented by Ms. Cailyn Harris, a labour officer with NAPTOSA.. The respondent, the Department of Education, Western Cape, was represented on the first day by Mr. B. Mketso, a labour relations officer assisted by Ms. Bathgate and subsequently by Mr. C. Vorster an employee relations officer.
2. The second respondent, Mr. C. Hopley, represented himself on the first day and thereafter was represented by Mr. R. Samson, the regional secretary of SADTU, Boland.
3. The matter was adjourned on the first day on account of an interpreter having to be sought. The interpretation services of Mr. D. Kova were acquired.
4. At the end of proceedings, the parties agreed to submit closing arguments in writing by no later than 23 March 2021. Written closing arguments were received on 23 March 2021.
THE ISSUE IN DISPUTE
5. I must decide whether the conduct of the respondent in appointing Mr. C. Hopley (Hopley) into the position of head of department, intermediate phase at Bontebok Primary School constitutes an unfair labour practice as defined in S186 (2)(a) of the Labour Relations Act 66 of 1995 as amended (LRA).
THE BACKGROUND TO THE DISPUTE
6. A post for the Head of Department Intermediate Phase at Bontebok Primary School Swellendam (Post 1854) was advertised in Vacancy List 3 of 2018. There were several applicants including the incumbent, Hoplley and the applicant, Michaels. Interviews were conducted on 12 December 2018 at which only Michaels and Hopley attended. Michaels was not successful. She contends that the process was unfair as the appointed incumbent, Hopley had had an unfair advantage to the post. The respondent contends that the process was substantively and procedurally fair.
7. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
SUMMARY OF EVIDENCE AND ARGUMENT
8. The applicant and the first respondent submitted a common bundle of documents into evidence to which parties did not record any objections.
9. It is common cause that the interviews for the head of departments for the foundation and intermediate phases had taken place on 12 December 2018 in the library at Bontebok Primary School in Swellendam.
10. Mrs. Judith Michaels (Michaels) testified under oath on her own behalf and also called as a witness Mrs. Yolanda Arends (Arends), who also testified under oath. The respondent called as witnesses who testified under oath, Mrs. Frances Amelia Baadtjies (Baadtjies), Mr. Sheridon Jerome Adonis (Adonis) and Mrs. Heidi Lydia Gaffley (Gaffley). Mr. Christian Rudolf Hopley (Hopley) testified under oath on his own behalf.
The evidence for the applicant:
11. Michaels testified that Arends had informed her when schools re-opened in January 2019 that Baadtjies had instructed her to forward the questions to Hopley prior to the interviews. She considered this to mean that a candidate had already been chosen prior to the interviews and wondered why she had bothered to attend at the interview.
12. Arends had informed her that Baadtjies had also told her later that Adonis had changed the question and had then instructed her also to send the second question to Hopley on whatsapp and for which purpose she also gave her Hopley’s phone number as she did not have it.
13. At the time Michaels did not take further steps as an official appointment into the post had not yet been made. She did lodge a grievance when the appointment of Hopley into the position was announced.
14. Michaels felt aggrieved as Hopley had been advantaged through being able to prepare in advance for his interview and believed that others could have sent her questions as well.
15. She also felt aggrieved because of the friendship between Baadtjies and Hopley. She had queried with Mr. Bailey at the Department of Education Baadtjies’ participation in the process beforehand but had been informed that Baadtjies was entitled to participate in the process as she was the acting principal of the school at the time.
16. The testimony of Arends was that as the librarian her salary was paid by the school governing body as the school had appointed her. Her instructions from Baadtjies for the interviews on 12 December 2018 was to give each candidate a memory stick on which to do their presentation and not to talk to or assist anyone.
17. Arends had deposed to the affidavit on page 16 of the bundle of documents as her conscience had bothered her after what she had done on the day of the interviews. That day Baadtjies had instructed her while she was waiting for Michaels, to forward a picture of the question to Hopley.
18. The question she had with her was the first question, which was on her clipboard, and which she accordingly took a picture of and sent to Hopley via whatsapp as instructed by Baadtjies. Baadtjies had also furnished her with the cellular phone number of Hopley as she did not have it, as she had never communicated with Hopley before.
19. She confirmed that the question at page 29 of the bundle of documents was the first question. A good while later Baadtjies returned to Arends and informed her that Adonis had changed the questions and had made copies in Gaffley’s office. When they had done, Baadtjies came to her with papers in hand informing Arends that these were the new questions of which she should then take pictures and send them to Hopley. This Baadtjies had done once Adonis and Gaffley had left.
20. When Hopley arrived for his interview Arends gave him the memory stick and question and accompanied him to the principal’s office where he was to prepare his presentation. Hopley was stressed and swearing as he was unable to get the laptop to work smoothly.
21. On advice from her husband Arends reported on the next day to Mr. Hartzenberg, a deputy principal at the school, what she had done. He advised her to wait until it had been announced who had been appointed in the post in order to take the matter further.
22. Under cross examination in response to the fact that page 29 was the question for the intermediate post, Arends testified that she does not know how the process works in the interview room. She had been instructed to send both questions to Hopley which she did and he received them.
23. She had not come forward to say what she had done because she is no longer working at the school as she had already brought it to Hartzenberg’s attention on 13 December 2018 and had not worked at the school since 15 March 2019.
24. When put to her that Baadtjies would testify that she was always in the company of someone so they would have known if she had spoken to her, Arends testified that Baadtjies was in the company of Gaffley and Adonis in the office and when they came out Baadtjies had lagged behind the other two and had given her the questions then.
The evidence for the respondent:
25. Baadtjies had testified that the panel had selected the questions from those provided by Adonis and had thoroughly discussed them and had made sure they were relevant for the particular post. When they were finished and consensus reached regarding the questions for the posts the questions were not changed after that. The questions were in line with the particular phase but were not exactly the same. Page 29 of the bundle of documents was asked as the presentation in the interview of Michaels and Hopley.
26. After the panel had interviewed the first candidate in the first process Adonis and Gaffley had gone to print and make copies of the questions for the next candidates. At that time she had been accompanied to the bathroom by Mrs. Pepper. Upon her return from the bathroom she clearly saw through a glass screen in the lobby Arends close to the door of Gaffley’s office with Adonis and Gaffley inside Gaffley’s office.
27. She continued slowly to the venue for the interviews in the company of Pepper as they were not in a hurry. She was not physically close to Arends and did not speak to her at all. She and Hopley are very close friends as are their families. They have been friends since they were at College. Her husband and Hopley are both from Bredasdorp and had become house friends after both had married. Hopley also gives her a lot of support at school with other things.
28. She does however separate work from friendship. She had wanted to separate these two things and therefore had spoken about it to Adonis and the circuit manager prior to the process.
29. If Hopley did something wrong at school she would reprimand him. She had not assisted Hopley in any way with the process. As he was technologically very good she was surprised that Arends had testified that he was upset and swearing regarding the power point presentation so that Arends had to assist him.
30. Adonis testified at length as to how the process works. Once the questions are printed and copies made for all panel members Adonis together with the secretary who would have assisted with the printing and copying return to the interview venue and hand a pack to each panel member.
31. Adonis would thereafter hand the case study to the person whose task it is to receive the candidates. This person would be instructed to handle the case study with care, circumspection and trust and to ensure nothing is done to advantage any particular candidate.
32. Adonis then returns to the interview venue to await the first candidate. Once those interviews are completed points are allocated and the candidates ranked highest to lowest, the panel has a refreshment break before repeating the process for the interviews regarding the next post.
33. The ideal protocol at the interviews on 12 December 2018 when any panel member wanted to leave the room was that they be accompanied by somebody. Adonis would not allow any one person to leave alone. He considers it his duty to ensure the integrity of the process was protected even if the chairperson did not do so.
34. Adonis could not remember who accompanied him to make the copies of the questions. Gaffley was on the school governing body and so he thinks that she had accompanied him.
35. It was just the two of them with her leading the way so that he could follow to ensure she did not go the wrong way or have anything in her hands that she should not.
36. Adonis testified in respect of whether Baadtjies could twice have given case studies to Arends to forward to Hopley, that there was no way that any paper could leave the interview venue while he was sitting there.
37. If a paper had left the venue it would have been done surreptitiously and would be without his knowledge and against the integrity of the process. It would advantage someone and disadvantage another. He also said that he could not confirm whether Baadtjies could have left the room while he was away making copies as this would be speculative.
38. He also said to the fact that Hopley had conceded to having received at least one question that he could not say whether this would render the process unfair as to do so would be an assumption to which he could not react. He agreed that it was possible that Baadtjies could have spoken to Arends during the break.
39. The testimony of Gaffley was that Adonis and her had alone printed and copied questions and that Baadtjies was not with them at the time. She testified too that Baadtjies could not have had the case study prior to the interviews in order to give it to Arends before going into the venue for the interviews.
40. Hopley testified that on the day of the interviews he had received one question. At the time he was unaware where it had come from as the number was not listed on his phone. The question related to numeracy and literacy and was irrelevant to his interview. The relevant question asked at his interview pertained to the duties of the head of department and was a power point presentation. He had not received the latter question.
41. It was in the afternoon that he received the question which he did get. As his interview was scheduled for 6 p.m he did not alert anyone as it was not necessary to do so as it was 1 p.m and there was no reason for him to bother with it. It was a picture. He would have questioned it had it been sent just before his interview. He did not look at the whatsapp photo which someone had sent him from an unknown number. Sometimes his sister would send him pictures of dogs, children or anything else.
42. He denied that Baadtjies had said she would send him a picture. He had mentioned the question that he had received only when Michaels had lodged her grievance. He had not raised the issue before that as the question he received was not related to the interview and was not important to him.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
43. It is clear from the testimony of Michaels what effect the perception of foul play in a process such as the interviews had had. This in fact underscores the need for not only fairness to prevail but also the perception thereof. It ties in with the old adage that justice must not only be done but must be seen to be done.
44. It must be noted at the outset that Adonis, as the resource person, had testified in the main to how the process is normally done. It is also important to note that he had been called as a witness only after Baadtjies had testified.
45. In his explanation he had come to the position where the interviews relating to first interviews had taken place and that the break for refreshments had been arrived at. This was in circumstances where there were interviews pertaining to more posts than one being conducted on the same day such as in casu. According to him it was after this break that the second process had been commenced with. This testimony had been obtained from him in particular to support the argument for the respondent that Baadtjies could not have had access to the questions of the intermediate post during the refreshment break and therefore that it was impossible for her to have given the questions to Arends as testified to by Arends.
46. It is important to bear in mind that the testimony of Arends was of not all candidates having attended for the first process and that this had resulted in a break being taken before the scheduled conclusion of the first process regarding the foundation phase post. This is by and large also supported by the documentary evidence at page 21 of the bundle of document.
47. My further understanding is the second process that Adonis and Arendse had referred to was the process for the second post that day viz. that of head of department for the intermediate post in which both Michaels and Hopley had participated and in which they were the only participants in the interviews.
48. It is important to note that in this second process there was no testimony in respect of a refreshment break or any other break of substantial length of time between the interviews of Michaels and Hopley and that Hopley’s interview had commenced around 6 p.m that day.
49. It is to be noted that the testimony of Baadtjies was that during a break between candidates for the first post, due to candidates not arriving for their interviews they remained in the interview location until the remaining candidates would have arrived for their interviews and until that first process had been completed as scheduled. During this time she had taken a bathroom break accompanied by Pepper. It was during this break that she had seen Gaffley and Adonis in the company of Arends. The probabilities are that this was the occasion that Adonis and Gaffley had printed the questions for the interviews for the intermediate post interviews and on their return to the interview hall, before the conclusion of the interviews for the foundation phase post had handed the packs to the interview panel.
50. On balance therefore Baadtjies most likely did have the questions for the intermediate phase post prior to the refreshment break and was therefore in a position to give it to Arends during the refreshment break.
51. Even the testimony of Gaffley in this regard cannot therefore be relied on as accurate as it pertained more to what ought to have happened than what in fact had happened.
52. Interestingly the further testimony of Baadtjies was that she had also left the hall on a second occasion and at which time she was in the company of Pepper and Gaffley. This serves to support the finding that the printing of the questions for the intermediate phase post had been done during the time allocated for the interviews of the foundation phase post and because of the time available to do so due to the non-arrival of further candidates for the foundation phase interviews.
53. The testimony of Adonis regarding the break and the activities that took place during that break, was that it was after that that Gaffley and he had gone to her office to print the questions for the interviews pertaining to the post for the head of department position in the intermediate phase.
54. This he had done only once it had been put to him in re-examination whether by deduction and reference to the theory of the process. Baadtjies could have had the case study prior to the tea break. It was in fact not uncommon in the testimony of Adonis to conflate references to what was theory and what the reality was on the day.
55. My finding regarding the protocols that prevailed at the school for the protection of the integrity of the process on 12 December 2018 is that it did not follow the protocols as testified to by Adonis. This is borne out by the manner in which panel members were milling about the place and for what was clearly a long time. The circumstance that prevailed that day leads me to conclude that there was no way that it could be said that everybody there could not have interacted with anybody else. This factual circumstance would place on the respondent the evidentiary burden to prove that Baadtjies had not communicated with Arends prior to the commencement of the interviews for the intermediate phase post.
56. In fact the testimony of Adonis himself shows an inability on his part to keep or have control over what may or may not have affected the integrity of the process. In particular on that day the time between the completion of the first interview in the foundation phase process and the scheduled end of that process was clearly lengthy and had made it possible for irregularities of any sort to have happened. This was especially the case given the fact that the questions for the second process had probably been printed, copied and given to panel members before the scheduled completion of the first process and therefore before the refreshments break.
57. I am satisfied to hold that there prevails a discrepancy between the testimonies of Baadtjies on the one hand and that of Adonis on the other whether Baadtjies was in possession of the case study for the intermediate phase interviews before the refreshments break. The discrepancy lies in the fact that Baadtjies and Adonis are referring to different breaks as points of reference for the time in which the questions for the candidates for the intermediate post had been printed and handed to panel members.
58. As the testimony of Baadtjies and Arends and the evidence in general suggests further that there had been only one candidate that had arrived for the interviews pertaining to the foundation phase post, it is logical to conclude that the questions that had here i.e. at a time before the scheduled end of the interviews for the foundation phase post, been printed were those in respect of the interviews for the intermediate phase post, in which Hopley and the applicant had participated. This scenario suggests clearly that Baadtjies had in fact been in possession of the questions for the intermediate post before the conclusion of the first process and the refreshments break.
59. It is also clear from the evidence that Hopley had in fact received a question from the phone of Arends. He had conceded to this. In dispute is that he had received a second question from her. The testimony of Arends was that she had sent both questions to Hopley and that her telephone had shown that Hopley had received both questions as indicated by the blue ticks indicating such. The documents at pages 29 and 30 show the time and date when documents (the pictures of these questions) had been taken from her phone in April 2019. I accept as evidence of the pictures of the questions having been on her phone.
60. The probabilities that Hopley had received both questions clearly favour the applicant. It must be noted that the testimony of Hopley is that it does not matter much that a candidate would get access to a question inappropriately as Hopley allegedly had. On the other hand the contention of the applicant is that is does matter as it would advantage one person and disadvantage another. The consequence of such a scenario was in fact confirmed by Adonis in his testimony to be that one candidate would indeed be advantaged over another.
61. While I note the testimony of Arends that Baadtjies had told her to send the questions a second time as Adonis had changed them this was of course denied by Baadtjies. It however does not matter what Baadtjies is alleged to have said in this regard as the crux of the testimony of Arends in this regard is that she had been instructed to send a question a second time. The reason given to Arends of sending the second question in this context is in fact irrelevant.
62. The evidence for the respondent in this regard was in fact that Adonis had not changed the question. Assuming for a moment that there had been collusion between Baadtjies and Hopley then Arends would have sent the wrong question in the first place. That would then have been a reason for having to send the correct question to Hopley and which would account for Baadtjies then having to ensure that the correct question was sent and hence her coming to Arends to give her the correct question under the pretext that Adonis had changed the question. It would merely serve as a reason to give to Arends at the time for sending the question a second time notwithstanding that none is required. She was after all Arends’ superior. It was in fact the testimony of Arends that Baadtjies could come and speak to her alone just because she can.
63. This would of course mean further that Baadtjies would have had to have known that Hopley had received the wrong question. How then would she know this? The probabilities would be that Hopley had informed her, meaning in turn that he most likely would have communicated with Baadtjies regarding the questions forwarded to him by Arends.
64. In this regard his testimony that he had not taken any heed of the question that he admitted having received, is strange. The evidence before this arbitration is of the question having been sent to his phone by Arends already around 1 p.m. The further evidence before this arbitration is of his interview having taken place at 6 p.m. In such circumstances the probabilities that he had in fact read the whatsapp from Arends are that he did.
65. Although the respondent placed some emphasis on the question at page 29 of the bundle of documents having been the one put to the candidates, which one of the questions was put to the candidates in the interviews is in fact irrelevant. In this regard it was the testimony of Arends that she had no idea of what transpires in the interviews. I am satisfied that her testimony is simply that she had sent both pages 29 and 30 to Hopley on instruction from Baadtjies. It is to be noted that her testimony is not that Adonis had changed the question but that Baadtjies had told her so. The essence of her testimony is in fact that she had been instructed twice by Baadtjies to send these questions to Hopley.
66. Although her testimony was to page 29 having been the first question sent when confronted with a choice between pages 29 and 30 her actual testimony was of her having sent the question which she had on her clipboard the first time that Baadtjies had instructed her to send it to Hopley. The evidence shows that this was the question pertaining to the interviews in respect of the foundation phase. Receipt of this question was in fact confirmed by Hopley and confirmed by Arends with reference to the blue ticks indicating receipt that appeared on her cellphone.
67. Her testimony then indicates that it was the question at page 29 of the bundle of documents that she had sent on the second occasion of being instructed by Baadtjies. As I have indicated above this could well have been what transpired were it assumed for a moment that there was collusion at play.
68. It is to be noted that it was argued for the respondent that “Arends testified that she forwarded the message at folio 29 of the bundle and subsequently the message at folio 30, instructed by Baatjies as the questions have changed at the time. It was confirmed during arbitration that no questions have changed and in addition, why will Baatjies instruct Arends to send the second question at folio 30, knowing that the question would not be asked at the interview”. This is clearly inaccurate, and I have dealt with the possible reason for Baadtjies having to send the second question or sending a question for a second time. This aspect of the argument for the respondent is however typical of the sophistic manner in which much of the respondent’s case was presented at this arbitration.
69. I am however satisfied that the process as gleaned from the evidence was subject to potential abuse on the day to such a severe extent that it cannot be said to have been a fair process.
70. The evidence around the questions printed after the first round of interviews in the foundation phase post is of both Arends and Baadtjies locating Adonis and Gaffley inside the office of Gaffley. The difference is that Arends at that time locates Baadtjies inside the office of Gaffley as well while Baadtjies locates herself at the glass screen in the lobby in the company of Pepper.
71. According to Baadtjies this had occurred in a break brought about by the panel having to wait for the time set aside for the candidates for the foundation phase post having to end as scheduled.
72. This accords with the testimony of Arends save that she locates Baadtjies with Gaffley and Adonis in the office of Gaffley. This testimony of Arends was clarified in the re-examination by Harris where Arends testifies that only Gaffley and Adonis had made the copies in Gaffley’s office while Baadtjies informed her that Adonis and Gaffley were coming to make copies of the new questions on account of Adonis having changed the question.
73. It was when Adonis and Gaffley had then left that Baadtjies then gave her the second question to send to Hopley. Gaffley and Adonis were aware of this as they were the only people making the copies.
74. It is to be noted that, according to the testimony of Baadtjies, the questions that Adonis and Gaffley had gone to print and copy were those pertaining to the interviews for the post for the intermediate phase.
75. It is again to be noted that neither party had called Pepper to testify at this arbitration. It remains for the respondent to prove that Baadjies had not communicated with Arends. I find that the respondent has not shifted the evidentiary burden to prove that Baadjes had not communicated with Arends in respect of the instructions to forward the questions to Hopley.
76. Gaffley’s testimony was that Baadtjies was not with Adonis and her when printing the questions in her office. This testimony of Gaffley I am satisfied pertained to and was in respect of her description as to how the process started from the beginning. Her testimony therefore that Baadtjies could not have had the case study for the interviews for the intermediate phase is questionable. I am in fact satisfied that it is incorrect.
77. I find before me no evidence corroborating the whereabouts of Baadtjies at the time Arends alleges she gave her the questions.
78. I have concluded that Baadtjies most likely did have the case study prior to the refreshments break and did have an opportunity to furnish Arends therewith if she wanted to.
79. The testimony of Arends in respect of the second question she had sent to Hopley was, unlike the first, that Baadtjies had actually given her the paper she wanted her to copy on this occasion and send to Hopley.
80. It is to be noted too that the further testimony of Gaffley was that the panel had been given these questions upon Adonis and Gaffley returning to the hall after completing the printing. This was confirmed by Baadtjies who also said that Adonis had left a copy with Arends to give to the candidates. She had however not testified to this when leading her evidence in chief. I am satisfied that this was so because it was part of what she believed ought to be done in the process and not what was actually done on the day.
81. This was also confirmed in the testimony of Adonis save with the different perspective that he would return to the interview venue with the packs for each panel member and only after ensuring everyone had the question with answer each panel member was to ask of a candidate, would he furnish the case study to the person charged with receiving the candidates.
82. His testimony in this regard was that this had been done after the break for refreshments and before the candidates for the second process were interviewed.
83. It is also to be noted that a feature of the testimony of Adonis is that he frequently could not remember as this had happened a long time ago. When confronted with this problem of memory he invariably would revert to the theoretical situation and testify that that is how it transpired in reality. In this regard Adonis was clearly an unreliable witness leading me to reject this testimony of his as unreliable.
84. The difficulty for the respondent here is that the testimony, especially that of Baadtjies, suggests that this had taken place while waiting for the remaining candidates in the first process or at least while waiting for the time allocated for their interviews to expire on schedule.
85. The evidence suggests further that the break for refreshments then was taken only after that, which implies that at the refreshments break Baadtjies had in fact been in possession of her questions pack for the interviews pertaining to the interviews for the intermediate phase post.
86. It is to be noted that the testimony of Arends and Baadtjies corroborate each other in respect of when the questions for the interviews for the intermediate phase post were selected and printed.
87. I am satisfied that the testimony for the respondent is sufficiently skewed and fabricated and sophistic so as to ensure that there is no conclusion arrived at that Baadtjies had not contacted Arends in order to instruct her to take pictures of and forward the questions to Hopley.
88. I find further that there had not been any evidence presented at this arbitration for me to conclude that Arends would have had sufficient or ulterior motive to forward questions to Hopley of her own accord. In this regard I find especially that the quickness with which Arends had raised the issue with Harzenberg would probably negate the idea of anything malicious having been planned or premeditated. This probably finds support in the fact that on the advice of Hartzenberg she had waited to further the matter until after it had been confirmed that the sending of the pictures to Hopley had had the effect of advantaging Hopley. On the other hand Baadtjies and Hopley, given the intimate nature of their relationship, would have had such sufficient motivation.
89. The emphasis in the point is however that the protocols in place for the protection of the integrity of the interview process does not take into account the divisions prevailing in the school amongst staff.
90. The facts of this matter before me show further that the incumbent in the post, Hopley, did in fact get a question pertaining to the interviews that day albeit one that pertained to the foundation phase post. This, in the absence of an explanation for his receiving the question, is in itself objectively sufficient to raise concerns regarding the process that had taken place that day and to render it invalid.
91. Even if the question did not pertain to the interviews for the intermediate phase post the fact that a question had been leaked to Hopley raises sufficient concern for a valid attack to be raised on the integrity of the process.
92. If one were to take for example the fact that Hopley received the question already at 1 pm as testified to by him then there would have remained in the day sufficient time for a correction of this and to rectify the problem, were there any issues of malpractice or ulterior motivation involved.
93. On a balance of probabilities only the sending of correct material, the second question, would correct such a problem of the incorrect question having been sent to Hopley.
94. Difficult to ignore in these circumstances is the nature of the friendship between Baadties and Hopley. The nature of this friendship suggests that Baadtjies would certainly benefit greatly from any improvement in the financial position of Hopley even if indirectly. To her credit Baadtjies did lead evidence of her preference not to participate in the process. I am however of the view that given her concerns and given the nature of the relationship between herself and Hopley that she ought to have recused herself notwithstanding the advice to stay in the process given by Adonis.
95. Even if, as suggested in his testimony by Hopley, the receipt of such information by the applicant would not have been a problem for him, the difficulty lies not only therein but in the perception created by the sending of the questions no matter who the recipient thereof would have been.
96. The consequence of such an incident is that the perception is created of an entirely tainted process and therefore a flawed process. Most important however is the fact that this perception had been created in the mind of the applicant resulting in this challenge to the appointment of Hopley as an unfair labour practice.
97. An overall conspectus of the evidence presented at this arbitration suggests an incapability at present for the proper handling of a promotion position of this nature internally at the school.
98. Having considered all the evidence presented at this arbitration I find that the applicant was not treated fairly when the second respondent, Hopley, was appointed into the position of head of department, intermediate phase at Bontebok Primary School. It is to be noted that a prominent feature manifested through an overall conspectus of the evidence shows stark divisions within the staff of the school.
99. One such division through the testimony of Baadtjies is that of a strained relationship between her and Harzenberg. A further such example is that between Baadtjies and Arends as can be gleaned from the Whatsapp messages at pages 31 to 33 of the bundle of documents. I note that I am alive to the fact that Arends is no longer at the school.
100. The conduct of the respondent therefore in appointing Hopley does constitute an unfair labour practice as contemplated in S186 (2)(a) of the LRA. The appropriate remedy in the circumstances therefore is that the process be done again and from the point of the completion of shortlisting.
AWARD
101. The first respondent committed an unfair labour practice relating to promotion as contemplated in S186(2)(a) of the LRA when it appointed Mr. C. Hopley into the position of Departmental Head at Bontebok Primary School in terms of Post Number 1854 as advertised in Vacancy List 3 of 2018.
102. The appointment of the second respondent, Mr. C. Hopley is set aside. This order is not retrospective and the second respondent is entitled to his remuneration and benefits as a Head of Department until 30 April 2021.
103. The first respondent, the Department of Education, Western Cape is directed to conduct the interviews for this position of Head of Department afresh between only the second respondent, Mr. C. Hopley and the applicant, Ms. J. Michaels.
104. For this purpose the first respondent is ordered to establish an interview panel comprising different members to those conducting the interviews on 12 December 2018.
105. The first respondent is directed to complete this process as soon as possible but with the appointment of the successful applicant being no later than 1 June 2021.
PANELIST: L. MARTIN
7 APRIL 2021
Case Number ELRC584-19/20WC
In the matter between
NAPTOSA ON BEHALF OF JUDITH MICHAELS
Applicant
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
First Respondent
SADTU ON BEHALF OF C. HOPLEY
Second Respondent
ARBITRATION AWARD
________________________________________________________________
ARBITRATOR: L. MARTIN
HEARD: 27 January 2021, 18 February 2021, 19 February 2021 and 15 March 2021
DATE OF AWARD: 7 APRIL 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - alleged unfair conduct relating to promotion
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration was held via Zoom online platform on 27 January, 18 February, 19 February and 15 March 2021. The applicant, Mrs J. Michaels (Michaels), was represented by Ms. Cailyn Harris, a labour officer with NAPTOSA.. The respondent, the Department of Education, Western Cape, was represented on the first day by Mr. B. Mketso, a labour relations officer assisted by Ms. Bathgate and subsequently by Mr. C. Vorster an employee relations officer.
2. The second respondent, Mr. C. Hopley, represented himself on the first day and thereafter was represented by Mr. R. Samson, the regional secretary of SADTU, Boland.
3. The matter was adjourned on the first day on account of an interpreter having to be sought. The interpretation services of Mr. D. Kova were acquired.
4. At the end of proceedings, the parties agreed to submit closing arguments in writing by no later than 23 March 2021. Written closing arguments were received on 23 March 2021.
THE ISSUE IN DISPUTE
5. I must decide whether the conduct of the respondent in appointing Mr. C. Hopley (Hopley) into the position of head of department, intermediate phase at Bontebok Primary School constitutes an unfair labour practice as defined in S186 (2)(a) of the Labour Relations Act 66 of 1995 as amended (LRA).
THE BACKGROUND TO THE DISPUTE
6. A post for the Head of Department Intermediate Phase at Bontebok Primary School Swellendam (Post 1854) was advertised in Vacancy List 3 of 2018. There were several applicants including the incumbent, Hoplley and the applicant, Michaels. Interviews were conducted on 12 December 2018 at which only Michaels and Hopley attended. Michaels was not successful. She contends that the process was unfair as the appointed incumbent, Hopley had had an unfair advantage to the post. The respondent contends that the process was substantively and procedurally fair.
7. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
SUMMARY OF EVIDENCE AND ARGUMENT
8. The applicant and the first respondent submitted a common bundle of documents into evidence to which parties did not record any objections.
9. It is common cause that the interviews for the head of departments for the foundation and intermediate phases had taken place on 12 December 2018 in the library at Bontebok Primary School in Swellendam.
10. Mrs. Judith Michaels (Michaels) testified under oath on her own behalf and also called as a witness Mrs. Yolanda Arends (Arends), who also testified under oath. The respondent called as witnesses who testified under oath, Mrs. Frances Amelia Baadtjies (Baadtjies), Mr. Sheridon Jerome Adonis (Adonis) and Mrs. Heidi Lydia Gaffley (Gaffley). Mr. Christian Rudolf Hopley (Hopley) testified under oath on his own behalf.
The evidence for the applicant:
11. Michaels testified that Arends had informed her when schools re-opened in January 2019 that Baadtjies had instructed her to forward the questions to Hopley prior to the interviews. She considered this to mean that a candidate had already been chosen prior to the interviews and wondered why she had bothered to attend at the interview.
12. Arends had informed her that Baadtjies had also told her later that Adonis had changed the question and had then instructed her also to send the second question to Hopley on whatsapp and for which purpose she also gave her Hopley’s phone number as she did not have it.
13. At the time Michaels did not take further steps as an official appointment into the post had not yet been made. She did lodge a grievance when the appointment of Hopley into the position was announced.
14. Michaels felt aggrieved as Hopley had been advantaged through being able to prepare in advance for his interview and believed that others could have sent her questions as well.
15. She also felt aggrieved because of the friendship between Baadtjies and Hopley. She had queried with Mr. Bailey at the Department of Education Baadtjies’ participation in the process beforehand but had been informed that Baadtjies was entitled to participate in the process as she was the acting principal of the school at the time.
16. The testimony of Arends was that as the librarian her salary was paid by the school governing body as the school had appointed her. Her instructions from Baadtjies for the interviews on 12 December 2018 was to give each candidate a memory stick on which to do their presentation and not to talk to or assist anyone.
17. Arends had deposed to the affidavit on page 16 of the bundle of documents as her conscience had bothered her after what she had done on the day of the interviews. That day Baadtjies had instructed her while she was waiting for Michaels, to forward a picture of the question to Hopley.
18. The question she had with her was the first question, which was on her clipboard, and which she accordingly took a picture of and sent to Hopley via whatsapp as instructed by Baadtjies. Baadtjies had also furnished her with the cellular phone number of Hopley as she did not have it, as she had never communicated with Hopley before.
19. She confirmed that the question at page 29 of the bundle of documents was the first question. A good while later Baadtjies returned to Arends and informed her that Adonis had changed the questions and had made copies in Gaffley’s office. When they had done, Baadtjies came to her with papers in hand informing Arends that these were the new questions of which she should then take pictures and send them to Hopley. This Baadtjies had done once Adonis and Gaffley had left.
20. When Hopley arrived for his interview Arends gave him the memory stick and question and accompanied him to the principal’s office where he was to prepare his presentation. Hopley was stressed and swearing as he was unable to get the laptop to work smoothly.
21. On advice from her husband Arends reported on the next day to Mr. Hartzenberg, a deputy principal at the school, what she had done. He advised her to wait until it had been announced who had been appointed in the post in order to take the matter further.
22. Under cross examination in response to the fact that page 29 was the question for the intermediate post, Arends testified that she does not know how the process works in the interview room. She had been instructed to send both questions to Hopley which she did and he received them.
23. She had not come forward to say what she had done because she is no longer working at the school as she had already brought it to Hartzenberg’s attention on 13 December 2018 and had not worked at the school since 15 March 2019.
24. When put to her that Baadtjies would testify that she was always in the company of someone so they would have known if she had spoken to her, Arends testified that Baadtjies was in the company of Gaffley and Adonis in the office and when they came out Baadtjies had lagged behind the other two and had given her the questions then.
The evidence for the respondent:
25. Baadtjies had testified that the panel had selected the questions from those provided by Adonis and had thoroughly discussed them and had made sure they were relevant for the particular post. When they were finished and consensus reached regarding the questions for the posts the questions were not changed after that. The questions were in line with the particular phase but were not exactly the same. Page 29 of the bundle of documents was asked as the presentation in the interview of Michaels and Hopley.
26. After the panel had interviewed the first candidate in the first process Adonis and Gaffley had gone to print and make copies of the questions for the next candidates. At that time she had been accompanied to the bathroom by Mrs. Pepper. Upon her return from the bathroom she clearly saw through a glass screen in the lobby Arends close to the door of Gaffley’s office with Adonis and Gaffley inside Gaffley’s office.
27. She continued slowly to the venue for the interviews in the company of Pepper as they were not in a hurry. She was not physically close to Arends and did not speak to her at all. She and Hopley are very close friends as are their families. They have been friends since they were at College. Her husband and Hopley are both from Bredasdorp and had become house friends after both had married. Hopley also gives her a lot of support at school with other things.
28. She does however separate work from friendship. She had wanted to separate these two things and therefore had spoken about it to Adonis and the circuit manager prior to the process.
29. If Hopley did something wrong at school she would reprimand him. She had not assisted Hopley in any way with the process. As he was technologically very good she was surprised that Arends had testified that he was upset and swearing regarding the power point presentation so that Arends had to assist him.
30. Adonis testified at length as to how the process works. Once the questions are printed and copies made for all panel members Adonis together with the secretary who would have assisted with the printing and copying return to the interview venue and hand a pack to each panel member.
31. Adonis would thereafter hand the case study to the person whose task it is to receive the candidates. This person would be instructed to handle the case study with care, circumspection and trust and to ensure nothing is done to advantage any particular candidate.
32. Adonis then returns to the interview venue to await the first candidate. Once those interviews are completed points are allocated and the candidates ranked highest to lowest, the panel has a refreshment break before repeating the process for the interviews regarding the next post.
33. The ideal protocol at the interviews on 12 December 2018 when any panel member wanted to leave the room was that they be accompanied by somebody. Adonis would not allow any one person to leave alone. He considers it his duty to ensure the integrity of the process was protected even if the chairperson did not do so.
34. Adonis could not remember who accompanied him to make the copies of the questions. Gaffley was on the school governing body and so he thinks that she had accompanied him.
35. It was just the two of them with her leading the way so that he could follow to ensure she did not go the wrong way or have anything in her hands that she should not.
36. Adonis testified in respect of whether Baadtjies could twice have given case studies to Arends to forward to Hopley, that there was no way that any paper could leave the interview venue while he was sitting there.
37. If a paper had left the venue it would have been done surreptitiously and would be without his knowledge and against the integrity of the process. It would advantage someone and disadvantage another. He also said that he could not confirm whether Baadtjies could have left the room while he was away making copies as this would be speculative.
38. He also said to the fact that Hopley had conceded to having received at least one question that he could not say whether this would render the process unfair as to do so would be an assumption to which he could not react. He agreed that it was possible that Baadtjies could have spoken to Arends during the break.
39. The testimony of Gaffley was that Adonis and her had alone printed and copied questions and that Baadtjies was not with them at the time. She testified too that Baadtjies could not have had the case study prior to the interviews in order to give it to Arends before going into the venue for the interviews.
40. Hopley testified that on the day of the interviews he had received one question. At the time he was unaware where it had come from as the number was not listed on his phone. The question related to numeracy and literacy and was irrelevant to his interview. The relevant question asked at his interview pertained to the duties of the head of department and was a power point presentation. He had not received the latter question.
41. It was in the afternoon that he received the question which he did get. As his interview was scheduled for 6 p.m he did not alert anyone as it was not necessary to do so as it was 1 p.m and there was no reason for him to bother with it. It was a picture. He would have questioned it had it been sent just before his interview. He did not look at the whatsapp photo which someone had sent him from an unknown number. Sometimes his sister would send him pictures of dogs, children or anything else.
42. He denied that Baadtjies had said she would send him a picture. He had mentioned the question that he had received only when Michaels had lodged her grievance. He had not raised the issue before that as the question he received was not related to the interview and was not important to him.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
43. It is clear from the testimony of Michaels what effect the perception of foul play in a process such as the interviews had had. This in fact underscores the need for not only fairness to prevail but also the perception thereof. It ties in with the old adage that justice must not only be done but must be seen to be done.
44. It must be noted at the outset that Adonis, as the resource person, had testified in the main to how the process is normally done. It is also important to note that he had been called as a witness only after Baadtjies had testified.
45. In his explanation he had come to the position where the interviews relating to first interviews had taken place and that the break for refreshments had been arrived at. This was in circumstances where there were interviews pertaining to more posts than one being conducted on the same day such as in casu. According to him it was after this break that the second process had been commenced with. This testimony had been obtained from him in particular to support the argument for the respondent that Baadtjies could not have had access to the questions of the intermediate post during the refreshment break and therefore that it was impossible for her to have given the questions to Arends as testified to by Arends.
46. It is important to bear in mind that the testimony of Arends was of not all candidates having attended for the first process and that this had resulted in a break being taken before the scheduled conclusion of the first process regarding the foundation phase post. This is by and large also supported by the documentary evidence at page 21 of the bundle of document.
47. My further understanding is the second process that Adonis and Arendse had referred to was the process for the second post that day viz. that of head of department for the intermediate post in which both Michaels and Hopley had participated and in which they were the only participants in the interviews.
48. It is important to note that in this second process there was no testimony in respect of a refreshment break or any other break of substantial length of time between the interviews of Michaels and Hopley and that Hopley’s interview had commenced around 6 p.m that day.
49. It is to be noted that the testimony of Baadtjies was that during a break between candidates for the first post, due to candidates not arriving for their interviews they remained in the interview location until the remaining candidates would have arrived for their interviews and until that first process had been completed as scheduled. During this time she had taken a bathroom break accompanied by Pepper. It was during this break that she had seen Gaffley and Adonis in the company of Arends. The probabilities are that this was the occasion that Adonis and Gaffley had printed the questions for the interviews for the intermediate post interviews and on their return to the interview hall, before the conclusion of the interviews for the foundation phase post had handed the packs to the interview panel.
50. On balance therefore Baadtjies most likely did have the questions for the intermediate phase post prior to the refreshment break and was therefore in a position to give it to Arends during the refreshment break.
51. Even the testimony of Gaffley in this regard cannot therefore be relied on as accurate as it pertained more to what ought to have happened than what in fact had happened.
52. Interestingly the further testimony of Baadtjies was that she had also left the hall on a second occasion and at which time she was in the company of Pepper and Gaffley. This serves to support the finding that the printing of the questions for the intermediate phase post had been done during the time allocated for the interviews of the foundation phase post and because of the time available to do so due to the non-arrival of further candidates for the foundation phase interviews.
53. The testimony of Adonis regarding the break and the activities that took place during that break, was that it was after that that Gaffley and he had gone to her office to print the questions for the interviews pertaining to the post for the head of department position in the intermediate phase.
54. This he had done only once it had been put to him in re-examination whether by deduction and reference to the theory of the process. Baadtjies could have had the case study prior to the tea break. It was in fact not uncommon in the testimony of Adonis to conflate references to what was theory and what the reality was on the day.
55. My finding regarding the protocols that prevailed at the school for the protection of the integrity of the process on 12 December 2018 is that it did not follow the protocols as testified to by Adonis. This is borne out by the manner in which panel members were milling about the place and for what was clearly a long time. The circumstance that prevailed that day leads me to conclude that there was no way that it could be said that everybody there could not have interacted with anybody else. This factual circumstance would place on the respondent the evidentiary burden to prove that Baadtjies had not communicated with Arends prior to the commencement of the interviews for the intermediate phase post.
56. In fact the testimony of Adonis himself shows an inability on his part to keep or have control over what may or may not have affected the integrity of the process. In particular on that day the time between the completion of the first interview in the foundation phase process and the scheduled end of that process was clearly lengthy and had made it possible for irregularities of any sort to have happened. This was especially the case given the fact that the questions for the second process had probably been printed, copied and given to panel members before the scheduled completion of the first process and therefore before the refreshments break.
57. I am satisfied to hold that there prevails a discrepancy between the testimonies of Baadtjies on the one hand and that of Adonis on the other whether Baadtjies was in possession of the case study for the intermediate phase interviews before the refreshments break. The discrepancy lies in the fact that Baadtjies and Adonis are referring to different breaks as points of reference for the time in which the questions for the candidates for the intermediate post had been printed and handed to panel members.
58. As the testimony of Baadtjies and Arends and the evidence in general suggests further that there had been only one candidate that had arrived for the interviews pertaining to the foundation phase post, it is logical to conclude that the questions that had here i.e. at a time before the scheduled end of the interviews for the foundation phase post, been printed were those in respect of the interviews for the intermediate phase post, in which Hopley and the applicant had participated. This scenario suggests clearly that Baadtjies had in fact been in possession of the questions for the intermediate post before the conclusion of the first process and the refreshments break.
59. It is also clear from the evidence that Hopley had in fact received a question from the phone of Arends. He had conceded to this. In dispute is that he had received a second question from her. The testimony of Arends was that she had sent both questions to Hopley and that her telephone had shown that Hopley had received both questions as indicated by the blue ticks indicating such. The documents at pages 29 and 30 show the time and date when documents (the pictures of these questions) had been taken from her phone in April 2019. I accept as evidence of the pictures of the questions having been on her phone.
60. The probabilities that Hopley had received both questions clearly favour the applicant. It must be noted that the testimony of Hopley is that it does not matter much that a candidate would get access to a question inappropriately as Hopley allegedly had. On the other hand the contention of the applicant is that is does matter as it would advantage one person and disadvantage another. The consequence of such a scenario was in fact confirmed by Adonis in his testimony to be that one candidate would indeed be advantaged over another.
61. While I note the testimony of Arends that Baadtjies had told her to send the questions a second time as Adonis had changed them this was of course denied by Baadtjies. It however does not matter what Baadtjies is alleged to have said in this regard as the crux of the testimony of Arends in this regard is that she had been instructed to send a question a second time. The reason given to Arends of sending the second question in this context is in fact irrelevant.
62. The evidence for the respondent in this regard was in fact that Adonis had not changed the question. Assuming for a moment that there had been collusion between Baadtjies and Hopley then Arends would have sent the wrong question in the first place. That would then have been a reason for having to send the correct question to Hopley and which would account for Baadtjies then having to ensure that the correct question was sent and hence her coming to Arends to give her the correct question under the pretext that Adonis had changed the question. It would merely serve as a reason to give to Arends at the time for sending the question a second time notwithstanding that none is required. She was after all Arends’ superior. It was in fact the testimony of Arends that Baadtjies could come and speak to her alone just because she can.
63. This would of course mean further that Baadtjies would have had to have known that Hopley had received the wrong question. How then would she know this? The probabilities would be that Hopley had informed her, meaning in turn that he most likely would have communicated with Baadtjies regarding the questions forwarded to him by Arends.
64. In this regard his testimony that he had not taken any heed of the question that he admitted having received, is strange. The evidence before this arbitration is of the question having been sent to his phone by Arends already around 1 p.m. The further evidence before this arbitration is of his interview having taken place at 6 p.m. In such circumstances the probabilities that he had in fact read the whatsapp from Arends are that he did.
65. Although the respondent placed some emphasis on the question at page 29 of the bundle of documents having been the one put to the candidates, which one of the questions was put to the candidates in the interviews is in fact irrelevant. In this regard it was the testimony of Arends that she had no idea of what transpires in the interviews. I am satisfied that her testimony is simply that she had sent both pages 29 and 30 to Hopley on instruction from Baadtjies. It is to be noted that her testimony is not that Adonis had changed the question but that Baadtjies had told her so. The essence of her testimony is in fact that she had been instructed twice by Baadtjies to send these questions to Hopley.
66. Although her testimony was to page 29 having been the first question sent when confronted with a choice between pages 29 and 30 her actual testimony was of her having sent the question which she had on her clipboard the first time that Baadtjies had instructed her to send it to Hopley. The evidence shows that this was the question pertaining to the interviews in respect of the foundation phase. Receipt of this question was in fact confirmed by Hopley and confirmed by Arends with reference to the blue ticks indicating receipt that appeared on her cellphone.
67. Her testimony then indicates that it was the question at page 29 of the bundle of documents that she had sent on the second occasion of being instructed by Baadtjies. As I have indicated above this could well have been what transpired were it assumed for a moment that there was collusion at play.
68. It is to be noted that it was argued for the respondent that “Arends testified that she forwarded the message at folio 29 of the bundle and subsequently the message at folio 30, instructed by Baatjies as the questions have changed at the time. It was confirmed during arbitration that no questions have changed and in addition, why will Baatjies instruct Arends to send the second question at folio 30, knowing that the question would not be asked at the interview”. This is clearly inaccurate, and I have dealt with the possible reason for Baadtjies having to send the second question or sending a question for a second time. This aspect of the argument for the respondent is however typical of the sophistic manner in which much of the respondent’s case was presented at this arbitration.
69. I am however satisfied that the process as gleaned from the evidence was subject to potential abuse on the day to such a severe extent that it cannot be said to have been a fair process.
70. The evidence around the questions printed after the first round of interviews in the foundation phase post is of both Arends and Baadtjies locating Adonis and Gaffley inside the office of Gaffley. The difference is that Arends at that time locates Baadtjies inside the office of Gaffley as well while Baadtjies locates herself at the glass screen in the lobby in the company of Pepper.
71. According to Baadtjies this had occurred in a break brought about by the panel having to wait for the time set aside for the candidates for the foundation phase post having to end as scheduled.
72. This accords with the testimony of Arends save that she locates Baadtjies with Gaffley and Adonis in the office of Gaffley. This testimony of Arends was clarified in the re-examination by Harris where Arends testifies that only Gaffley and Adonis had made the copies in Gaffley’s office while Baadtjies informed her that Adonis and Gaffley were coming to make copies of the new questions on account of Adonis having changed the question.
73. It was when Adonis and Gaffley had then left that Baadtjies then gave her the second question to send to Hopley. Gaffley and Adonis were aware of this as they were the only people making the copies.
74. It is to be noted that, according to the testimony of Baadtjies, the questions that Adonis and Gaffley had gone to print and copy were those pertaining to the interviews for the post for the intermediate phase.
75. It is again to be noted that neither party had called Pepper to testify at this arbitration. It remains for the respondent to prove that Baadjies had not communicated with Arends. I find that the respondent has not shifted the evidentiary burden to prove that Baadjes had not communicated with Arends in respect of the instructions to forward the questions to Hopley.
76. Gaffley’s testimony was that Baadtjies was not with Adonis and her when printing the questions in her office. This testimony of Gaffley I am satisfied pertained to and was in respect of her description as to how the process started from the beginning. Her testimony therefore that Baadtjies could not have had the case study for the interviews for the intermediate phase is questionable. I am in fact satisfied that it is incorrect.
77. I find before me no evidence corroborating the whereabouts of Baadtjies at the time Arends alleges she gave her the questions.
78. I have concluded that Baadtjies most likely did have the case study prior to the refreshments break and did have an opportunity to furnish Arends therewith if she wanted to.
79. The testimony of Arends in respect of the second question she had sent to Hopley was, unlike the first, that Baadtjies had actually given her the paper she wanted her to copy on this occasion and send to Hopley.
80. It is to be noted too that the further testimony of Gaffley was that the panel had been given these questions upon Adonis and Gaffley returning to the hall after completing the printing. This was confirmed by Baadtjies who also said that Adonis had left a copy with Arends to give to the candidates. She had however not testified to this when leading her evidence in chief. I am satisfied that this was so because it was part of what she believed ought to be done in the process and not what was actually done on the day.
81. This was also confirmed in the testimony of Adonis save with the different perspective that he would return to the interview venue with the packs for each panel member and only after ensuring everyone had the question with answer each panel member was to ask of a candidate, would he furnish the case study to the person charged with receiving the candidates.
82. His testimony in this regard was that this had been done after the break for refreshments and before the candidates for the second process were interviewed.
83. It is also to be noted that a feature of the testimony of Adonis is that he frequently could not remember as this had happened a long time ago. When confronted with this problem of memory he invariably would revert to the theoretical situation and testify that that is how it transpired in reality. In this regard Adonis was clearly an unreliable witness leading me to reject this testimony of his as unreliable.
84. The difficulty for the respondent here is that the testimony, especially that of Baadtjies, suggests that this had taken place while waiting for the remaining candidates in the first process or at least while waiting for the time allocated for their interviews to expire on schedule.
85. The evidence suggests further that the break for refreshments then was taken only after that, which implies that at the refreshments break Baadtjies had in fact been in possession of her questions pack for the interviews pertaining to the interviews for the intermediate phase post.
86. It is to be noted that the testimony of Arends and Baadtjies corroborate each other in respect of when the questions for the interviews for the intermediate phase post were selected and printed.
87. I am satisfied that the testimony for the respondent is sufficiently skewed and fabricated and sophistic so as to ensure that there is no conclusion arrived at that Baadtjies had not contacted Arends in order to instruct her to take pictures of and forward the questions to Hopley.
88. I find further that there had not been any evidence presented at this arbitration for me to conclude that Arends would have had sufficient or ulterior motive to forward questions to Hopley of her own accord. In this regard I find especially that the quickness with which Arends had raised the issue with Harzenberg would probably negate the idea of anything malicious having been planned or premeditated. This probably finds support in the fact that on the advice of Hartzenberg she had waited to further the matter until after it had been confirmed that the sending of the pictures to Hopley had had the effect of advantaging Hopley. On the other hand Baadtjies and Hopley, given the intimate nature of their relationship, would have had such sufficient motivation.
89. The emphasis in the point is however that the protocols in place for the protection of the integrity of the interview process does not take into account the divisions prevailing in the school amongst staff.
90. The facts of this matter before me show further that the incumbent in the post, Hopley, did in fact get a question pertaining to the interviews that day albeit one that pertained to the foundation phase post. This, in the absence of an explanation for his receiving the question, is in itself objectively sufficient to raise concerns regarding the process that had taken place that day and to render it invalid.
91. Even if the question did not pertain to the interviews for the intermediate phase post the fact that a question had been leaked to Hopley raises sufficient concern for a valid attack to be raised on the integrity of the process.
92. If one were to take for example the fact that Hopley received the question already at 1 pm as testified to by him then there would have remained in the day sufficient time for a correction of this and to rectify the problem, were there any issues of malpractice or ulterior motivation involved.
93. On a balance of probabilities only the sending of correct material, the second question, would correct such a problem of the incorrect question having been sent to Hopley.
94. Difficult to ignore in these circumstances is the nature of the friendship between Baadties and Hopley. The nature of this friendship suggests that Baadtjies would certainly benefit greatly from any improvement in the financial position of Hopley even if indirectly. To her credit Baadtjies did lead evidence of her preference not to participate in the process. I am however of the view that given her concerns and given the nature of the relationship between herself and Hopley that she ought to have recused herself notwithstanding the advice to stay in the process given by Adonis.
95. Even if, as suggested in his testimony by Hopley, the receipt of such information by the applicant would not have been a problem for him, the difficulty lies not only therein but in the perception created by the sending of the questions no matter who the recipient thereof would have been.
96. The consequence of such an incident is that the perception is created of an entirely tainted process and therefore a flawed process. Most important however is the fact that this perception had been created in the mind of the applicant resulting in this challenge to the appointment of Hopley as an unfair labour practice.
97. An overall conspectus of the evidence presented at this arbitration suggests an incapability at present for the proper handling of a promotion position of this nature internally at the school.
98. Having considered all the evidence presented at this arbitration I find that the applicant was not treated fairly when the second respondent, Hopley, was appointed into the position of head of department, intermediate phase at Bontebok Primary School. It is to be noted that a prominent feature manifested through an overall conspectus of the evidence shows stark divisions within the staff of the school.
99. One such division through the testimony of Baadtjies is that of a strained relationship between her and Harzenberg. A further such example is that between Baadtjies and Arends as can be gleaned from the Whatsapp messages at pages 31 to 33 of the bundle of documents. I note that I am alive to the fact that Arends is no longer at the school.
100. The conduct of the respondent therefore in appointing Hopley does constitute an unfair labour practice as contemplated in S186 (2)(a) of the LRA. The appropriate remedy in the circumstances therefore is that the process be done again and from the point of the completion of shortlisting.
AWARD
101. The first respondent committed an unfair labour practice relating to promotion as contemplated in S186(2)(a) of the LRA when it appointed Mr. C. Hopley into the position of Departmental Head at Bontebok Primary School in terms of Post Number 1854 as advertised in Vacancy List 3 of 2018.
102. The appointment of the second respondent, Mr. C. Hopley is set aside. This order is not retrospective and the second respondent is entitled to his remuneration and benefits as a Head of Department until 30 April 2021.
103. The first respondent, the Department of Education, Western Cape is directed to conduct the interviews for this position of Head of Department afresh between only the second respondent, Mr. C. Hopley and the applicant, Ms. J. Michaels.
104. For this purpose the first respondent is ordered to establish an interview panel comprising different members to those conducting the interviews on 12 December 2018.
105. The first respondent is directed to complete this process as soon as possible but with the appointment of the successful applicant being no later than 1 June 2021.
PANELIST: L. MARTIN
7 APRIL 2021