PSES CAR 000010
PSES CAR 000010
Award Date:
9 February 1999
Case Number: PSES CAR 000010
Province: Western Cape
Applicant: SADTU obo C D G MOODLEY
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: WCED OFFICES
Award Date: 9 February 1999
Arbitrator: L N VAN ZYL
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 0000010 WC
In the arbitration between:
SADTU obo C D G MOODLEY APPLICANT
and
WESTERN CAPE EDUCATIONAL DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . DETAILS OF HEARING AND REPRESENTATION
1.1 I was asked to chair an arbitration held at the offices of the WCED (the Department) on Wednesday 4 February 199. The terms of reference for the arbitration are contained in an agreement which has been concluded between the Department and its various unions under the auspices of the Education Labour Relations Council.
1.2 The grievant is Mr Carlsom Derick Gorden Moodley. Mr Moodley is an educator at Ryland High School in Gatesville.
1.3 The dispute which I am required to determine revolved around Mr Moodley’s unsuccessful application for the position of Deputy Principal at Ryland High. The aforesaid position was advertised in Vacancy List 0257 No 1 of 1997. Mr Moodley ws short-listed for this position and interviewed on 22 September 1997. Mr Moodley was unsuccessful and duly declared a dispute in regards to his non-appointment of 6 November 1997. A meeting then took place on 21 November 1997 in order to attempt to resolve this dispute. This meeting took place at Ryland High School and was attended by the Department’s Circuit Manager. The dispute remained unresolved and a conciliation meeting then subsequently took place in October 1998. As a result of the parties failure to resolve their dispute at this conciliation meeting the matter was referred to arbitration.
1.4 The parties met prior to the arbitration in order to attempt to limit the issues which I was required to deliberate on. I will deal with each of these issues separately.
2 . LEGAL STANDING OF GOVERNING BODY
2.1 Mr Moodley contested the legal standing of the Governing Body of Ryland High School. It was his contention that the Governing Body was not properly elected as there was not a quorum present when the members were elected. Mr Fakier for the Department, contended that this challenge on the legal standing of the Governing Body was being raised for the first time at the arbitration and that as a result Mr Moodley was precluded from raising the issue at the arbitration and, moreover, he contended that he had not had sufficient time to prepare for this complaint. It became evident that the Department had clothed the Governing Body with the necessary jurisdiction and authority to act as the Governing Body by way of an administrative action provided for in the South African Schools Act.
2.2 I expressed the view to Mr Moodley and his representative, Mr Witbooi, that if they did have a complaint relating to the election of the Governing Body and the subsequent administration actions of the Department it would appear to me as if this is an issue which probably belongs in the High Court under review proceedings. I also expressed the view that the locus standi of the Governing Body may well effect the legality of all decisions taken by the body but that the issue which I was required to determine was whether such decisions were unfair labour practices. I then asked Mr Moodley and his union representative to consider their approach to the aforesaid issue and to seek advice if needs be. After caucusing Mr Moodley and his representative then decided that they would not pursue this matter at the arbitration and that they would, in due course, determine whether they wished to institute review proceedings relating to the locus standi of the Governing Body.
3 . THE POST FACTO DETERMINATION OF CRITERIA
3.1 Mr Moodley contended that the criteria used for the appointment of the Deputy Principal post was only established after the interviews and on 6 October 1998.
3.2 Mr Kahn, the chairperson of the Board of Governors of Ryland High School gave evidence that the criteria were determined on 15 December 1997 by the sub-committee appointed by the Board. The aforesaid meeting had been called to determine a shortlist of candidates. Mr Khan gave evidence that the aforesaid was discussed in the presence of Mr John Abrahams being the representative of the CPTA who had been invited to attend the short-listing process in order to protect the interest of any CPTA members who were candidates for the position. Mr Abrahams was called to give evidence. Mr Abrahams remembers very clearly that the criteria were discussed in his presence at this meeting. He furthermore testified that he remembers very clearly questioning the legitimacy of the sub-committee’s standing at there appeared to be very few members and thereupon being advised that the sub-committee would have to seek ratification for its recommendations from the full Board. Mr Moodley was unable to refute this evidence.
4 . PROCESS OF INFORMING CANDIDATES
4.1 Mr Moodley contended that he had indirectly heard of his non-appointment at a staff meeting on 1 October 1998. He contended that this was irregular. Mr Khan’s evidence was that he had prepared a letter to each of the candidates from the school who had been unsuccessful and had placed these letters into their pigeon holes at the school on the morning of 1 October after he had made a general staff announcement where Mr Moodley was present.
4.2 I cannot find anything irregular about the aforesaid process.
5 . NO UNION REPRESENTATIVES PRESENT AT INTERVIEWS OR AT THE RATIFICATION PROCESS
Mr Moodley contended that the proceedings were irregular as no representatives from the unions were present during the course of the interviews or during the ratification process. It was however evident from the fax documentation and supporting documents that Mr Moodley’s union had been invited to the interview proceedings. I do not believe that Mr Moodley can accordingly rely on this argument for any form of relief. In addition to the fact that the union representatives were invited to the interview’s Mr Kahn’s evidence was that at the commencement of each interview each of the candidates was advised that the union representatives had been invited but that they had failed to arrive. Mr Khan also informed each of the candidates that should the wish to do so their interviews could stand down until such time as a union representative was present. Each candidate had indicated that they were prepared to continue. Mr Moodley did not dispute this evidence. I fail to see how Mr Moodley or his union can contest the process on the basis that union representatives were not present when the union showed no interest in attending either the short-listing exercise or the interviews themselves.
6 . LEGAL INCAPACITY OF MINOR
One of the representatives of the Governing Body of the school was a minor. Mr Moodley accordingly contended that the decisions of the Governing Body were illegitimate as such decisions were tantamount to a minor entering into a contract. In my view there is not basis in law for such a conclusion.
7 . FINDINGS
I accordingly cannot find that an unfair labour practice has been committed.
_______________________
ARBITRATOR
L N VAN ZYL
Date : 9 February 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CAR 000010
APPLICANT SADTU obo C D G MOODLEY
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR L N VAN ZYL
DATE OF ARBITRATION 04 FEBRUARY 1999
VENUE WCED OFFICES
REPRESENTATION:
APPLICANT SADTU
RESPONDENT
AWARD:
I accordingly cannot find that an unfair labour practice has been committed.
DATE OF AWARD 9 FEBRUARY 1999
Province: Western Cape
Applicant: SADTU obo C D G MOODLEY
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: WCED OFFICES
Award Date: 9 February 1999
Arbitrator: L N VAN ZYL
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 0000010 WC
In the arbitration between:
SADTU obo C D G MOODLEY APPLICANT
and
WESTERN CAPE EDUCATIONAL DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . DETAILS OF HEARING AND REPRESENTATION
1.1 I was asked to chair an arbitration held at the offices of the WCED (the Department) on Wednesday 4 February 199. The terms of reference for the arbitration are contained in an agreement which has been concluded between the Department and its various unions under the auspices of the Education Labour Relations Council.
1.2 The grievant is Mr Carlsom Derick Gorden Moodley. Mr Moodley is an educator at Ryland High School in Gatesville.
1.3 The dispute which I am required to determine revolved around Mr Moodley’s unsuccessful application for the position of Deputy Principal at Ryland High. The aforesaid position was advertised in Vacancy List 0257 No 1 of 1997. Mr Moodley ws short-listed for this position and interviewed on 22 September 1997. Mr Moodley was unsuccessful and duly declared a dispute in regards to his non-appointment of 6 November 1997. A meeting then took place on 21 November 1997 in order to attempt to resolve this dispute. This meeting took place at Ryland High School and was attended by the Department’s Circuit Manager. The dispute remained unresolved and a conciliation meeting then subsequently took place in October 1998. As a result of the parties failure to resolve their dispute at this conciliation meeting the matter was referred to arbitration.
1.4 The parties met prior to the arbitration in order to attempt to limit the issues which I was required to deliberate on. I will deal with each of these issues separately.
2 . LEGAL STANDING OF GOVERNING BODY
2.1 Mr Moodley contested the legal standing of the Governing Body of Ryland High School. It was his contention that the Governing Body was not properly elected as there was not a quorum present when the members were elected. Mr Fakier for the Department, contended that this challenge on the legal standing of the Governing Body was being raised for the first time at the arbitration and that as a result Mr Moodley was precluded from raising the issue at the arbitration and, moreover, he contended that he had not had sufficient time to prepare for this complaint. It became evident that the Department had clothed the Governing Body with the necessary jurisdiction and authority to act as the Governing Body by way of an administrative action provided for in the South African Schools Act.
2.2 I expressed the view to Mr Moodley and his representative, Mr Witbooi, that if they did have a complaint relating to the election of the Governing Body and the subsequent administration actions of the Department it would appear to me as if this is an issue which probably belongs in the High Court under review proceedings. I also expressed the view that the locus standi of the Governing Body may well effect the legality of all decisions taken by the body but that the issue which I was required to determine was whether such decisions were unfair labour practices. I then asked Mr Moodley and his union representative to consider their approach to the aforesaid issue and to seek advice if needs be. After caucusing Mr Moodley and his representative then decided that they would not pursue this matter at the arbitration and that they would, in due course, determine whether they wished to institute review proceedings relating to the locus standi of the Governing Body.
3 . THE POST FACTO DETERMINATION OF CRITERIA
3.1 Mr Moodley contended that the criteria used for the appointment of the Deputy Principal post was only established after the interviews and on 6 October 1998.
3.2 Mr Kahn, the chairperson of the Board of Governors of Ryland High School gave evidence that the criteria were determined on 15 December 1997 by the sub-committee appointed by the Board. The aforesaid meeting had been called to determine a shortlist of candidates. Mr Khan gave evidence that the aforesaid was discussed in the presence of Mr John Abrahams being the representative of the CPTA who had been invited to attend the short-listing process in order to protect the interest of any CPTA members who were candidates for the position. Mr Abrahams was called to give evidence. Mr Abrahams remembers very clearly that the criteria were discussed in his presence at this meeting. He furthermore testified that he remembers very clearly questioning the legitimacy of the sub-committee’s standing at there appeared to be very few members and thereupon being advised that the sub-committee would have to seek ratification for its recommendations from the full Board. Mr Moodley was unable to refute this evidence.
4 . PROCESS OF INFORMING CANDIDATES
4.1 Mr Moodley contended that he had indirectly heard of his non-appointment at a staff meeting on 1 October 1998. He contended that this was irregular. Mr Khan’s evidence was that he had prepared a letter to each of the candidates from the school who had been unsuccessful and had placed these letters into their pigeon holes at the school on the morning of 1 October after he had made a general staff announcement where Mr Moodley was present.
4.2 I cannot find anything irregular about the aforesaid process.
5 . NO UNION REPRESENTATIVES PRESENT AT INTERVIEWS OR AT THE RATIFICATION PROCESS
Mr Moodley contended that the proceedings were irregular as no representatives from the unions were present during the course of the interviews or during the ratification process. It was however evident from the fax documentation and supporting documents that Mr Moodley’s union had been invited to the interview proceedings. I do not believe that Mr Moodley can accordingly rely on this argument for any form of relief. In addition to the fact that the union representatives were invited to the interview’s Mr Kahn’s evidence was that at the commencement of each interview each of the candidates was advised that the union representatives had been invited but that they had failed to arrive. Mr Khan also informed each of the candidates that should the wish to do so their interviews could stand down until such time as a union representative was present. Each candidate had indicated that they were prepared to continue. Mr Moodley did not dispute this evidence. I fail to see how Mr Moodley or his union can contest the process on the basis that union representatives were not present when the union showed no interest in attending either the short-listing exercise or the interviews themselves.
6 . LEGAL INCAPACITY OF MINOR
One of the representatives of the Governing Body of the school was a minor. Mr Moodley accordingly contended that the decisions of the Governing Body were illegitimate as such decisions were tantamount to a minor entering into a contract. In my view there is not basis in law for such a conclusion.
7 . FINDINGS
I accordingly cannot find that an unfair labour practice has been committed.
_______________________
ARBITRATOR
L N VAN ZYL
Date : 9 February 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CAR 000010
APPLICANT SADTU obo C D G MOODLEY
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR L N VAN ZYL
DATE OF ARBITRATION 04 FEBRUARY 1999
VENUE WCED OFFICES
REPRESENTATION:
APPLICANT SADTU
RESPONDENT
AWARD:
I accordingly cannot find that an unfair labour practice has been committed.
DATE OF AWARD 9 FEBRUARY 1999