PSES GAAR003919 MP
PSES GAAR003919 MP
Award Date:
12 November 1999
Case Number: PSES GAAR003919 MP
Province: Mpumalanga
Applicant: L MOHLALA
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: BELFAST
Award Date: 12 November 1999
Arbitrator: PHILLIP COHEN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 003919 MP
In the arbitration between:
MOHLALA L (represented by SADTU) APPLICANT
and
MPUMALANGA DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATION AWARD
1 . INTRODUCTION
1.1 This is an award in an arbitration between Mpumalanga Department of Education (“the Department”) and SADTU (“the Union”) obo Mrs L Mohlala - (“the grievant”)
1.2 The arbitration arises out of alleged irregularities in the interview procedures followed in the recommendation of educators to two senior posts at the Ukhwezi Primary School in Belfast.
1.3 The arbitration was held at the school on 4 and 29 October and at the Department’s offices on 1 November 1999.
1.4 The Department was represented by Mr W Kutumela and the Union by Mr D Mtembu and I record my appreciation of their competence and courtesy in the presentation of their respective cases.
2 . TERMS OF REFERENCE AND POWERS
2.1 My terms of reference and powers in this matter, as agreed by the parties, are as follows:
• To determine whether the current procedures for the Filling of Educator Posts were properly followed by the interviewing committee of Ukhwezi Primary School in the interviews for the posts of Principal and Deputy Principal carried out on 12 February 1999.
• To make any such an award as I consider appropriate in determining the dispute, including:-
%a declaration rendering the interview process in this matter null and void and an order reverting the parties back to the start of the process which may or may not include a re-advertisement of the posts.
%any other such award as I deem appropriate in the circumstances
• The parties agree that this award will be final and binding on them.
3 . BACKGROUND
3.1 The Ukhwezi Primary School has unsuccessfully attempted to fill the posts of Principal and Deputy Principal since 1997. At that time, interviews were held for the two posts but the process was aborted following the declaration of a dispute by the Union. No appointments were made.
3.2 Further interviews took place during 1998 at which time candidates were interviewed and scored by the School Governing Body and recommendations made by them. This meeting was attended by two officials of the Department. These officials disagreed with the recommendations of the School Governing Body and submitted their own recommendations. These recommendations were set aside following a declaration of dispute by the School Governing Body on the grounds that the process was unprocedural and that they had been unable to exert any influence over the decisions taken by the Departmental officials. As a result of this, the Deputy Director - General issued a memorandum to the District Head instructing him that a further interview process should be undertaken before 13 February 1999. All parties agreed to this and the Union sent a letter to the Department accepting the invitation to the interview meeting.
3.3 This third round of interviews was held at the school on 12 February 1999. The following day the Union sent a letter to the Department objecting to the manner in which the interviews had been conducted. Once again the appointments of Principal and Deputy Principal were put on hold and it was finally agreed to refer the dispute to arbitration.
4 . ISSUES TO BE DECIDED
4.1 Was the interview panel of the School Governing Body properly constituted in terms of the teacher/parent composition?
4.2 Was the interview procedure compromised by the School Governing Body’s decision to combine the interviews for the posts of Principal and Deputy Principal?
4.3 Did all the members of the interview panel speak and understand English well enough to conduct interviews in that language?
4.4 Was the grievant discriminated against on the grounds that she was ‘too highly qualified’ for the post of Deputy Principal as advertised and, as she currently holds a Principal’s post, would an appointment to a post of Deputy Principal constitute a demotion?
4.5 Did the interview committee demonstrate bias or subjectivity on the grounds that it’s final recommendations for the posts of Principal and Deputy Principal were:-
• inconsistent with the actual scores obtained by the candidates?
• based on personal prior knowledge and preference for the two candidates finally recommended?
4.6 Did the candidates’ interview forms contain irregularities in the form of unsigned cancellations, ‘Tippexed’ amendments and different handwritten comments on the documents?
4.7 Did the School Governing Body demonstrate nepotism during the selection process insofar as it favoured one applicant who happened to be the wife of a friend of the District Head who, himself, happens to be the brother of the chairperson of the School Governing Body?
4.8 Did the School Governing Body intimidate the grievant by intimating to her that she was the only ‘external’ applicant and ‘was not wanted in Ukhwezi Primary School’?
4.9 Was the grievant’s safety threatened at the meeting of parents held on 23 September 1999?
4.10 Did the School Governing Body comply with the required submission of documents in the selection process?
5 . EVIDENCE
5.1 The Department’s Evidence
The Department called six witnesses.
5.1.1 Ms SE Maaagula - Jelle (Chairperson of the School Governing Body)
5.1.1.1 In her evidence in chief, the witness testified that the post if Principal and Deputy Principal had first been advertised in 1997. At that time the Circuit Inspector had invited all candidates to an interview process to be conducted by the School Governing Body. Following this process SADTU declared a dispute. A second round of interviews was held during 1998. Two inspectors and an observer from the Nelspruit district office had attended this meeting. The School Governing Body scored the interviews and recommended Mrs Masombuka and Mrs Mohlala for the posts of Principal and Deputy Principal respectively. The inspectors differed with these recommendations and put forward their own proposals as if such proposals had been made by the School Governing Body. The inspectors had recommended Mr Mohlala as Principal and Mrs Masombuka as Deputy Principal. The School Governing Body declared a dispute over these recommendations and a re-interview process was scheduled for 12 February 1999. Before the commencement of this process, a meeting was held between all parties including the Union representatives. According to the witness “all the problems had been ironed out” at this pre-interview meeting. The interviews were held in English and Zulu and, where required, translations had been provided by Mr Simelane of the Department and Mr Maseko of SADTU.
5.1.1.2 Under cross-examination the witness testified that the interview panel constituted in 1998 had included parents, observers from three unions, SADTU. PEU and SAOU and two Departmental officials. No teachers had been included. It was later discovered later that the Departmental officials had reversed the panel’s recommendations. This resulted in the declaration of a dispute by the School Governing Body. In response to a question on the composition of the 1999 interview panel, the witness testified that the School Governing Body had not been aware that it had contravened any legislation by omitting teachers from the interview panel. The witness could not say why the Circuit Inspector had not signed the minutes of the panel meeting.
5.1.1.3 Under re-examination the witness confirmed that the role of the observer in the interview process was to ensure the consistent treatment of candidates whilst that of the District officials was to assist the School Governing Body.
5.1.1.4 In response to a question put to her by the Arbitrator, the witness testified that neither the union nor the Department officials had pointed out any discrepancies in the process followed.
5.1.2 Mr Masango (Member of the School Governing Body)
5.1.2.1 In his evidence in chief the witness testified that he had been a member of the interview panel of 12 February 1999. According to the witness the interview panel met before the commencement of the interview “in order to iron out all problems before we started”. Interviews had been carried out in English and Zulu. He denied that some members of the panel could not read or write. He had personally asked questions in Zulu whilst others had asked them in English. He testified that the general conclusion at the end of the meeting was that the process had been carried out fairly. Mr PP Maseko of SADTU had concurred with this.
5.1.3 Mr Simelane (Head of Operations - District Office - Nelspruit)
5.1.3.1 In his evidence in chief, the witness testified that he had been appointed by the District Manager to attend the interview meeting at Ukhwezi Primary School on 12 February 1999. He confirmed that a preliminary meeting had been held between himself, members of the School Governing Body and representatives of SADTU, PEU and SAOU in order to discuss the procedure to be followed. In cases where translation had been required both he and Maseko of SADTU had assisted. At the end of the meeting the panel had a final discussion amongst themselves in order to ascertain whether they have achieved their objectives or whether any members had any questions or objections. According to the witness no objections had been raised. The meeting concluded with everyone expressing satisfaction with the interview process, including Mr Maseko of SADTU.
5.1.3.2 Under cross-examination the witness testified that his role in the process was that of observer and resource person. He confirmed that he had been satisfied with the procedure of combining the two posts and choosing one candidate as Principal and the other as Deputy Principal. In response to a serious of questions put to him on the composition of the interview panel and the fact that the interview panel had excluded teachers the witness testified that the panel had been chosen by the School Governing Body themselves and therefore it had been properly constituted and was fairly representative. His role as a recourse person was to ensure that the requisite procedures were followed to the letter. He confirmed that the minutes of the meeting had been forwarded to the District Head.
5.1.3.3 Under re-examination, the witness re _ confirmed that the School Governing Body had decided to choose the interview panel for the meeting held on 12 February 1999.
5.1.4 Mr ML Makgopa (School Principal - Middleburg and Chairperson of PEU - Middleburg)
5.1.4.1 In his evidence in chief, the witness testified that he had attended the interview meeting at Ukhwezi Secondary School on 12 February 1999. A preliminary discussion had taken place regarding the earlier problems experienced at the school in the selection of applicants to the posts of Principal and Deputy Principal. After that it was agreed that the interviews should proceed. He confirmed that the panel had been selected in accordance with the constitution of the School Governing Body and that officials of the Department were only present to guide the panel and not to take part in the decision - making process. The witness testified that, in his opinion, the interviews had been carried out in a fair manner and that and that he had confirmed this fact at the end of the interview process. The Chairperson had also asked both SADTU and the District Head if they were satisfied with the fairness of the interview procedures and both had replied that the interviews had gone well and had been carried out in a fair manner.
5.1.4.2 Under cross-examination the witness testified that he had been invited to the interview meeting by the School Governing body and by his members. He had not been aware that the panel had excluded teachers but confirmed that if the composition of the panel had been agreed by the School Governing Body then it would have been representative. In his own opinion the panel was representative of the composition of the School Governing Body. The witness confirmed that the 1998 interview process had resulted in the School Governing Body declaring a dispute on the grounds of the Department’s intervention in the proceedings. In this case, two Circuit Managers had reversed a decision taken by the School Governing Body. His union, PEU, had supported the School Governing Body in having those recommendations set aside.
5.1.5 Mr Z Methula
5.1.5.1 In his evidence in chief, the witness that he had attended a meeting of parents called by the School Governing Body on 23 September 1999 held in the Roman Catholic Church hall. He had arrived before the commencement of the meeting and confirmed that Mr Bhuda had only arrived after the meeting had started. The meeting had been called to ascertain the real problems of parents with regard to appointments at Ukhwezi School. He had not heard any slogans chanted during or after the meeting, mor had he heard anyone threaten the life of Mrs Mahlala.
5.1.5.2 Under cross-examination the witness testified that he had been invited to attend the meeting on 23 September 1999. Mr Bhuda had sat behind him and he hadn’t seen him leave. The witness had only left after the furniture had been re-arranged. In addressing the parents, the chairman told them that the Department wanted to hear what they felt about the problems at the school. Dr Shube had said that he did not have the power to tell parents who should be the Principal but he added that “...if a particular person was made Principal she might be found ‘angry’ the next day!”
5.1.6 Dr CG Shube (District Manager - Nelspruit)
5.1.6.1 In his evidence in chief, the witness testified that he had been invited to attended the meeting of parents called by the School Governing Body on 23 September 1999 held in the Roman Catholic Church hall. He had acted as Chairperson at this meeting. The meeting had been called in order for a Departmental manager, Mr Kutumela, to report on the interviews held at Ukhwezi Primary School. Mr Kutumela had been unable to attend the meeting as he had experienced a car problem. The witness testified that he had expressed concern at the meeting that the appointments could not be finalized and that he did not understand the delay. He had told the meeting that he could not make any recommendations as the matter was under arbitration. He had heard no slogans chanted.
5.1.6.2 Under cross-examination the witness testified that the School Governing Body had invited him to the meeting on 23 September 1999. There was no agenda, the meeting had been called to provide ‘feed-back’ to parents. He had attended the meeting in order to hear information first-hand from ‘grass roots’ level. He confirmed that the Chairperson of the School Governing Body was his sister. He had known both candidates for some time as he had been in the area since 1989. Whenever he was in Middleburg he had been accommodated at the home of Mr and Mrs Masombuko. Mr Masombuko had been his friend since 1975. He had never mentioned a word against Mrs Mohlala. His observation was that all parents seem to agree that Mrs Masombuko was the best candidate for the Principal’s post.
5.2 The Union’s Evidence
The Union called two witnesses.
5.2.1 Mrs Mohlala (Grievant and Principal - Eerstelingfontein School)
5.2.1.1 In her evidence in chief, the witness testified that she had seen the advertisement for the vacant posts at Ukhwezi Primary School and had made application on the grounds that she had considered herself a suitable candidate and that the school was nearer to her place of residence. In 1997 she had applied for the post of Deputy Principal and in 1998 for the post of Principal. She had never been informed of the results of either of these interviews. She had been invited to attend the 1999 interviews by Ms Nkasi. She had been interviewed for both posts at that time because that was the way the process had been structured.
5.2.1.2 Under cross-examination the witness testified that after the 1997 interviews she had written to the Department complaining about the illiteracy and incompetence of the School Governing Body who had conducted the interviews. She stated that the 1997 interview committee could ‘barely express themselves in any language’. She expressed the view that if the School Governing Body could not constitute a competent interview panel, people should be brought in from outside. The witness denied having instructed SADTU to declare a dispute after the 1998 interviews. She claimed to have read about the dispute in a report. When she had been informed that the 1999 interviews for Principal and Deputy Principal were to be combined she had not objected because she had no one to object to nor had she raised any questions about this at the time. The witness re-iterated that she considered the School Governing Body to be incompetent.
5.2.2 Mr W M Bhuda (Teacher - Belfast Primary School)
5.2.2.1 In his evidence in chief, the witness testified that he had attended a meeting of parents called by the School Governing Body on 23 September 1999. This meeting had been held in the Roman Catholic Church hall and had been attended by parents, the School Governing Body and Dr Shube who presented the Department of Education in the Nelspruit district. The purpose of the meeting was to hear a report-back from the Department on the February 1999 interview process. Mr Kutumela had tendered his apologies. According to the witness the meeting resolved that they would not accept an ‘outsider’ in the Principalship posts. If an outsider came in they would take their children out of the school. According to the witness the parents had stated that they wanted Messrs Masombuka and Hadebe as Principal and Deputy Principal respectively and that if Mrs Mohlala was appointed ‘she could be found dead the following day’. The witness testified that slogans had been chanted at the end of the meeting.
5.2.2.2 Under cross-examination the witness testified that he had arrived at the meeting as it was starting. He confirmed that slogans had been chanted after the meeting. These slogans had been directly linked to statements made during the meeting. The types of slogans chanted included ‘... away with Mohlala’, ‘... forward Masombuka and Hadebel”, ‘...if Mohlala in, kids out!’ According to the witness the meeting had been called to discuss the issue of the Principal of Ukhwezi School with the Department but the Departmental representative had been unable to attend.
5.2.2.3 Under re-examination the witness testified that a number of SADTU members had attended the meeting but no officials. The slogans had the effect of influencing parents against Mrs Mohlala even if they did not know her.
6 . ARGUMENTS OF THE PARTIES
6.1 The Department’s Argument
6.1.1 In his closing argument Mr Kutumela contended that the Department had established that there was a well-published and well-established set of selection criteria that had emanated from a resolution of the Education Labour Relations Council. This resolution had been incorporated into the Personnel Administration Measures of the Department. He argued that the evidence lead proved that the process of selection had been conducted in a fair and equitable manner. The fact that the School Governing Body had not followed the directive of the Deputy Director General in constituting a fairly representative panel should not be viewed as a serious defiance of an instruction because the Governing Body had, at a meeting and in terms of par 3.3(b) bullet 3, constituted part of the interview committee.
6.1.2 In her evidence in chief, the Grievant, Mrs Mohlala, had made no mention of any effect that the lack of representation of the educator component on the interview panel had on her application. SADTU had elected no to call it’s representative at the interview meeting. Mr PP Maseko, as a witness to corroborate the evidence of Mrs Mohlala. Mr Kutumela argued that this evidence could have assisted in describing what had transpired at the interviews.
6.1.3 Mr Kutumela proposed that the Department’s evidence had been corroborative, clear and straightforward on the fact that the interviews had been held in a fair manner and in compliance with the regulations. The Department’s witnesses had testified that the SADTU representative, Mr PP Maseko, had agreed with the conclusion of the committee that the process had been carried out in a fair manner. Mr Kutumela submitted that no factors had been advanced in this arbitration that support the allegation that the interview committee had deviated from the regulations relating to the selection process. The union had failed to examine the reasons as to why Mrs Mohlala had not been appointed. It had further failed to demonstrate defective reasoning on the part of the Governing Body in the selection process. Mr Kutumela re-iterated that a pre-interview meeting had been held between all the participants in the interview process in order to clear up any misunderstandings. Under cross-examination Mrs Mohlala agreed that she had referred to the School Governing Body as illiterate and incompetent in carrying out their duties. This has put tremendous strain on the Governing Body in trying to convince the parents to accept Mrs Mohlala as Deputy Principal of the school. Mr Kutumela argued that Mrs Mohlala’s application had little to do with the advancement of the school, but was out of convenience as Ukhwezi School was nearer to her place of residence.
6.1.4 The Employment of Educators Act provides that the head of Department is the employer of educators, the District head cannot appoint an educator. The Schools Act makes it a function of the School Governing Body to make recommendations to the employer. Neither the District Head nor the Circuit Manager can amend the recommendations of the School Governing Body.
6.1.5 According to Mr Kutumela a recommendation of the School Governing Body is a recommendation of the parents - the meeting of 23 September confirmed the decision of the School Governing Body.
6.1.6 With regard to the altered documents inspected by SADTU., Mr Kutumela argued that whatever had occurred prior to 1999 was irrelevant as there was an agreement that interviews would be held in 1999.
6.1.7 In conclusion Mr Kutumela pleaded that the Arbitration award should :-
• direct the Department to Appoint Mrs Masombuka to the position of Principal as recommended by the School Governing Body.
• refrain from appointing Mrs Mohlala to the position of Deputy Principal on the grounds that her comments about the literacy and competence of the members of the School Governing Body have created an unworkable relationship between the parties.
6.2 The Union’s Arguments
6.2.1 In his closing address Mr Mtembu argued that Mrs Mohlala had been unfairly treated and discriminated against on the grounds that she was highly qualified and was currently a Principal and had applied for both a Principal and Deputy Principal’s posts at Ukhwezi School. The School Governing Body, in their recommendation, had stated that Mrs Mohlala was highly qualified and was suitable for Secondary Schools. The School Governing Body had further excluded the grievant from the post of Deputy Principal on the grounds that such an appointment would constitute a demotion. According to Mr Mtembu, Mrs Mohlala’s current position as Principal at Eerstelingsfontein Primary School and that of Deputy Principal at Ukhwezi are both graded at post level 3 and therefore an appointment to this position would not constitute a demotion. The position of Principal of Ukhwezi is a post level 4 job.
6.2.2 Mr Mtembu expressed concern that Mrs Masombuka had been recommended by the parent component of the School Governing Body on the basis of their prior knowledge of her. Referring to the composition of the interview panel, Mr Mtembu contended that the parent component of the School Governing Body had decided to exclude the teacher component and had therefore defied the directive from the Deputy Director General dated 25 January 1999. He furthermore contended that by acting as interpreters during the interview process, the union official and the departmental official had breached the directive of the Deputy Director General.
6.2.3 Mr Mtembu argued that the agreed interview procedures had been further compromised by the fact that the interviews for Principal and Deputy Principal had been combined instead of having been conducted separately. As a result certain applicants had been disadvantaged. Furthermore at least one member of the interview committee was unable to speak or understand English but could only converse in Zulu. This member, however, continued to score candidates to whom questions had been put in English and who had responded in the same language.
6.2.4 According to Mr Mtembu, the chairperson of the School Governing Body had deliberately excluded the teacher component from the interview panel. He argued that this was unprocedural, unfair and discriminatory and had favoured certain applicants over others. Furthermore, according to Mr Thembu, the chairperson of the School Governing Body had used the influence of her brother, the District Head in this matter. He argued that the meeting of 23 September 1999 had been arranged in order that parents may take a decision to have ‘the wife of the chairperson’s brother’s friend’ appointed as Principal at the school.
6.2.5 In addition, Mr Mtembu argued that the required documentary procedure had not been complied with and furthermore the records of the interviews had been amended and tampered with.
6.2.6 In conclusion, Mr Mtembu pleaded that the arbitration award should :-
• nullify and set aside the recommendations of the School Governing Body in this matter.
• withdraw the functions of the School Governing Body in terms of s.22 of the South African Schools Act 84 of 1996.
• order that an independent panel of interview be instituted.
6.3 The Department’s counter - arguments
6.3.1 In response, Mr Kutumela argued that the District Manager had nothing to do with the recommendations of the School Governing Body he merely represented the Department at the meeting of the Parents. He stated that nothing prevented the Department from combining interviews. Insofar as the composition of the interview panel was concerned, the School Governing Body had decided that a certain number of parents should conduct the interviews and that the teacher component had been present when that decision had been taken. If the teachers had a problem they would have objected to the composition of the panel as it was constituted. The interview documents referred to by Mr Mtembu refer to interviews that were held prior to 1999 and were therefore, of no relevance. Finally he argued that only the Head of Department could withdraw the powers of the School Governing Body in terms of the Act.
6.4 The Union’s counter - arguments
6.4.1 In response, Mr Mtembu contended that an arbitration award could force the Head of Department to withdraw the powers of the School Governing Body. He argued that the two posts had been advertised separately in two different vacancy lists and therefore interviews should have been held separately. As far as process was concerned, the School Governing Body did not follow the directive of the Deputy Director General and Mr Simelane did not understand his role in the interview process.
7 . DISCUSSION OF ARGUMENT AND FINDINGS
7.1 In Assessing the evidence and argument for and against the issues in dispute and arriving at a finding, I have carefully considered my terms of reference in this matter as agreed by the parties.
7.2 It is common cause that the interview panel was not properly constituted in terms of the teacher/parent composition as prescribed by the memorandum of the Deputy District - General dated 25 January 1999. The Employment of Educators Act 76 of 1998, however, does not specify the composition of parent/teacher representation on the interview panel. s.3.3 (b) of the Act states that :-
“The interview committee shall comprise :
[i] In the case of public schools :-
• ...
• ...
• members of the School Governing Body, excluding educators members who are applicants to the advertised posts ... “
7.3 What needs to be considered in this regard, however, is the degree of prejudice, if any, suffered by the grievant due to the omission of teachers on the interview panel. Apart from highlighting the fact that teachers had been excluded from the panel, the union has failed to prove any prejudice suffered by Mrs Mohlala resulting from the omission. I am also conscious of the fac t that the teachers, themselves, were aware of their omission and had raised no complaint about this. Finally the SADTU representative, himself, appears to have expressed satisfaction with the procedure both at the pre-interview meeting and at the subsequent satisfaction post-interview review. Furthermore I find no problem with the union observer and the departmental official having assisted with interpretation as required.
7.4 The union further alleges that certain applicants for the posts of Principal and Deputy Principal were disadvantaged by the fact that interviews for the two posts were combined instead of being held separately and yet it failed to produce any evidence of such disadvantage. It further failed to support it’s contention that interviews should be held separately. In support of it’s contention in this regard the union relies on Resolution 5 of 1998 which, it argues, states that:- ‘Separate applications are to be submitted for each vacancy on form EDU!’ Nowhere does it state that separate interviews are to be held for each post.
7.5 The allegation that one member of the interview panel was unable to speak or understand English also remains unproven. It is common cause that this gentleman did pose certain questions in Zulu but this does not necessarily imply that he did not understand the responses that might have been given in English. Furthermore we have heard that at least two persons present were able to assist with translations as required.
7.6 In terms of the interview panel’s final recommendation Mrs Masombuka received the highest score and was unanimously recommended for appointment to the Principals post. Mrs Mohlala received the second highest score and was therefore placed as second contender for the Principals post and primary contender for the post of Deputy Principal. Apart from a number of very positive attributes highlighted by the panel, Mrs Mohlala was not considered for either post as it was felt that her reasons for applying were of a personal nature only. In that she would be near to her place of residence and might save some expenditure on transport. The panel found her looking in vision for the post of principal and, in spite of her high qualifications, the panel expressed their doubts as to her ability to upgrade the school. Insofar as her appointment as Deputy Principal was concerned the panel felt, rightly or wrongly, that such appointment would constitute a demotion. Although not specifically mentioned by the interview panel one cannot overlook the strained relationship between Mrs Mohlala and the School Governing Body arising out of her allegations of their illiteracy and incompetence. The relationship between the Principal, Deputy Principal and the School Governing Body is an intimate one in any school and particularly in a small school such as Ukhwezi Primary. I have no doubt that Mrs Mohlala damaged any potential relationship she might have had with the School Governing Body irreparably when she made these accusations against them. The fact that the School Governing Body has had a long and satisfactory relationship with Mrs Masombuka can only stand in her favour and should not be viewed as favouritism. The onus lies with the interview panel to recommend the best candidates for the particular jobs.
7.7 Insofar as the old application forms are concerned, I agree with Mr Kutumela that these documents referred to applications prior to the 1999 interview process and are of no relevance whatsoever.
7.8 The fact that the District Head happens to be a long-standing friend of Mrs Masombuka’s husband in no way proves the union’s allegation of nepotism. Nor does the fact that he also happens to be the brother of the chairperson of the School Governing Body.
7.9 in his evidence in chief Mr Bhuda testified to the fact that a number of slogans had been chanted at the meeting of parents held on 23 September 1999. He further testified to threats having been made against Mrs Mohlala’s life should she be successful in her application to Ukhwezi school. Subsequent witnesses in the persons of Mr Methula and Dr Shuba have testified to attending the same meeting but not having heard any slogans chanted or any threats made.
8 . AWARD
8.1 In the light of the above, it is my award that the recommendations of the interview panel as constituted on 12 February 1999 be implemented.
8.2 Mrs NA Masombuka will be appointed as Principal of Ukhwezi Primary School and Miss ES Radebe will be appointed as Deputy Principal with effect from the date of this award.
________________________
PHILLIP COHEN
ARBITRATOR
DATE: 12 NOVEMBER 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES GAAR003919 MP
APPLICANT L MOHLALA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR PHILLIP COHEN
DATE OF ARBITRATION 4 & 29 OCTOBER 1999 & 1 NOVEMBER 1999
VENUE BELFAST
REPRESENTATION:
APPLICANT MR D MTEMBU
RESPONDENT MR W KUTUMELA
AWARD:
1 In the light of the above, it is my award that the recommendations of the interview panel as constituted on 12 February 1999 be implemented.
2 Mrs NA Masombuka will be appointed as Principal of Ukhwezi Primary School and Miss ES Radebe will be appointed as Deputy Principal with effect from the date of this award.
DATE OF AWARD 12 NOVEMBER 1999
Province: Mpumalanga
Applicant: L MOHLALA
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: BELFAST
Award Date: 12 November 1999
Arbitrator: PHILLIP COHEN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 003919 MP
In the arbitration between:
MOHLALA L (represented by SADTU) APPLICANT
and
MPUMALANGA DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATION AWARD
1 . INTRODUCTION
1.1 This is an award in an arbitration between Mpumalanga Department of Education (“the Department”) and SADTU (“the Union”) obo Mrs L Mohlala - (“the grievant”)
1.2 The arbitration arises out of alleged irregularities in the interview procedures followed in the recommendation of educators to two senior posts at the Ukhwezi Primary School in Belfast.
1.3 The arbitration was held at the school on 4 and 29 October and at the Department’s offices on 1 November 1999.
1.4 The Department was represented by Mr W Kutumela and the Union by Mr D Mtembu and I record my appreciation of their competence and courtesy in the presentation of their respective cases.
2 . TERMS OF REFERENCE AND POWERS
2.1 My terms of reference and powers in this matter, as agreed by the parties, are as follows:
• To determine whether the current procedures for the Filling of Educator Posts were properly followed by the interviewing committee of Ukhwezi Primary School in the interviews for the posts of Principal and Deputy Principal carried out on 12 February 1999.
• To make any such an award as I consider appropriate in determining the dispute, including:-
%a declaration rendering the interview process in this matter null and void and an order reverting the parties back to the start of the process which may or may not include a re-advertisement of the posts.
%any other such award as I deem appropriate in the circumstances
• The parties agree that this award will be final and binding on them.
3 . BACKGROUND
3.1 The Ukhwezi Primary School has unsuccessfully attempted to fill the posts of Principal and Deputy Principal since 1997. At that time, interviews were held for the two posts but the process was aborted following the declaration of a dispute by the Union. No appointments were made.
3.2 Further interviews took place during 1998 at which time candidates were interviewed and scored by the School Governing Body and recommendations made by them. This meeting was attended by two officials of the Department. These officials disagreed with the recommendations of the School Governing Body and submitted their own recommendations. These recommendations were set aside following a declaration of dispute by the School Governing Body on the grounds that the process was unprocedural and that they had been unable to exert any influence over the decisions taken by the Departmental officials. As a result of this, the Deputy Director - General issued a memorandum to the District Head instructing him that a further interview process should be undertaken before 13 February 1999. All parties agreed to this and the Union sent a letter to the Department accepting the invitation to the interview meeting.
3.3 This third round of interviews was held at the school on 12 February 1999. The following day the Union sent a letter to the Department objecting to the manner in which the interviews had been conducted. Once again the appointments of Principal and Deputy Principal were put on hold and it was finally agreed to refer the dispute to arbitration.
4 . ISSUES TO BE DECIDED
4.1 Was the interview panel of the School Governing Body properly constituted in terms of the teacher/parent composition?
4.2 Was the interview procedure compromised by the School Governing Body’s decision to combine the interviews for the posts of Principal and Deputy Principal?
4.3 Did all the members of the interview panel speak and understand English well enough to conduct interviews in that language?
4.4 Was the grievant discriminated against on the grounds that she was ‘too highly qualified’ for the post of Deputy Principal as advertised and, as she currently holds a Principal’s post, would an appointment to a post of Deputy Principal constitute a demotion?
4.5 Did the interview committee demonstrate bias or subjectivity on the grounds that it’s final recommendations for the posts of Principal and Deputy Principal were:-
• inconsistent with the actual scores obtained by the candidates?
• based on personal prior knowledge and preference for the two candidates finally recommended?
4.6 Did the candidates’ interview forms contain irregularities in the form of unsigned cancellations, ‘Tippexed’ amendments and different handwritten comments on the documents?
4.7 Did the School Governing Body demonstrate nepotism during the selection process insofar as it favoured one applicant who happened to be the wife of a friend of the District Head who, himself, happens to be the brother of the chairperson of the School Governing Body?
4.8 Did the School Governing Body intimidate the grievant by intimating to her that she was the only ‘external’ applicant and ‘was not wanted in Ukhwezi Primary School’?
4.9 Was the grievant’s safety threatened at the meeting of parents held on 23 September 1999?
4.10 Did the School Governing Body comply with the required submission of documents in the selection process?
5 . EVIDENCE
5.1 The Department’s Evidence
The Department called six witnesses.
5.1.1 Ms SE Maaagula - Jelle (Chairperson of the School Governing Body)
5.1.1.1 In her evidence in chief, the witness testified that the post if Principal and Deputy Principal had first been advertised in 1997. At that time the Circuit Inspector had invited all candidates to an interview process to be conducted by the School Governing Body. Following this process SADTU declared a dispute. A second round of interviews was held during 1998. Two inspectors and an observer from the Nelspruit district office had attended this meeting. The School Governing Body scored the interviews and recommended Mrs Masombuka and Mrs Mohlala for the posts of Principal and Deputy Principal respectively. The inspectors differed with these recommendations and put forward their own proposals as if such proposals had been made by the School Governing Body. The inspectors had recommended Mr Mohlala as Principal and Mrs Masombuka as Deputy Principal. The School Governing Body declared a dispute over these recommendations and a re-interview process was scheduled for 12 February 1999. Before the commencement of this process, a meeting was held between all parties including the Union representatives. According to the witness “all the problems had been ironed out” at this pre-interview meeting. The interviews were held in English and Zulu and, where required, translations had been provided by Mr Simelane of the Department and Mr Maseko of SADTU.
5.1.1.2 Under cross-examination the witness testified that the interview panel constituted in 1998 had included parents, observers from three unions, SADTU. PEU and SAOU and two Departmental officials. No teachers had been included. It was later discovered later that the Departmental officials had reversed the panel’s recommendations. This resulted in the declaration of a dispute by the School Governing Body. In response to a question on the composition of the 1999 interview panel, the witness testified that the School Governing Body had not been aware that it had contravened any legislation by omitting teachers from the interview panel. The witness could not say why the Circuit Inspector had not signed the minutes of the panel meeting.
5.1.1.3 Under re-examination the witness confirmed that the role of the observer in the interview process was to ensure the consistent treatment of candidates whilst that of the District officials was to assist the School Governing Body.
5.1.1.4 In response to a question put to her by the Arbitrator, the witness testified that neither the union nor the Department officials had pointed out any discrepancies in the process followed.
5.1.2 Mr Masango (Member of the School Governing Body)
5.1.2.1 In his evidence in chief the witness testified that he had been a member of the interview panel of 12 February 1999. According to the witness the interview panel met before the commencement of the interview “in order to iron out all problems before we started”. Interviews had been carried out in English and Zulu. He denied that some members of the panel could not read or write. He had personally asked questions in Zulu whilst others had asked them in English. He testified that the general conclusion at the end of the meeting was that the process had been carried out fairly. Mr PP Maseko of SADTU had concurred with this.
5.1.3 Mr Simelane (Head of Operations - District Office - Nelspruit)
5.1.3.1 In his evidence in chief, the witness testified that he had been appointed by the District Manager to attend the interview meeting at Ukhwezi Primary School on 12 February 1999. He confirmed that a preliminary meeting had been held between himself, members of the School Governing Body and representatives of SADTU, PEU and SAOU in order to discuss the procedure to be followed. In cases where translation had been required both he and Maseko of SADTU had assisted. At the end of the meeting the panel had a final discussion amongst themselves in order to ascertain whether they have achieved their objectives or whether any members had any questions or objections. According to the witness no objections had been raised. The meeting concluded with everyone expressing satisfaction with the interview process, including Mr Maseko of SADTU.
5.1.3.2 Under cross-examination the witness testified that his role in the process was that of observer and resource person. He confirmed that he had been satisfied with the procedure of combining the two posts and choosing one candidate as Principal and the other as Deputy Principal. In response to a serious of questions put to him on the composition of the interview panel and the fact that the interview panel had excluded teachers the witness testified that the panel had been chosen by the School Governing Body themselves and therefore it had been properly constituted and was fairly representative. His role as a recourse person was to ensure that the requisite procedures were followed to the letter. He confirmed that the minutes of the meeting had been forwarded to the District Head.
5.1.3.3 Under re-examination, the witness re _ confirmed that the School Governing Body had decided to choose the interview panel for the meeting held on 12 February 1999.
5.1.4 Mr ML Makgopa (School Principal - Middleburg and Chairperson of PEU - Middleburg)
5.1.4.1 In his evidence in chief, the witness testified that he had attended the interview meeting at Ukhwezi Secondary School on 12 February 1999. A preliminary discussion had taken place regarding the earlier problems experienced at the school in the selection of applicants to the posts of Principal and Deputy Principal. After that it was agreed that the interviews should proceed. He confirmed that the panel had been selected in accordance with the constitution of the School Governing Body and that officials of the Department were only present to guide the panel and not to take part in the decision - making process. The witness testified that, in his opinion, the interviews had been carried out in a fair manner and that and that he had confirmed this fact at the end of the interview process. The Chairperson had also asked both SADTU and the District Head if they were satisfied with the fairness of the interview procedures and both had replied that the interviews had gone well and had been carried out in a fair manner.
5.1.4.2 Under cross-examination the witness testified that he had been invited to the interview meeting by the School Governing body and by his members. He had not been aware that the panel had excluded teachers but confirmed that if the composition of the panel had been agreed by the School Governing Body then it would have been representative. In his own opinion the panel was representative of the composition of the School Governing Body. The witness confirmed that the 1998 interview process had resulted in the School Governing Body declaring a dispute on the grounds of the Department’s intervention in the proceedings. In this case, two Circuit Managers had reversed a decision taken by the School Governing Body. His union, PEU, had supported the School Governing Body in having those recommendations set aside.
5.1.5 Mr Z Methula
5.1.5.1 In his evidence in chief, the witness that he had attended a meeting of parents called by the School Governing Body on 23 September 1999 held in the Roman Catholic Church hall. He had arrived before the commencement of the meeting and confirmed that Mr Bhuda had only arrived after the meeting had started. The meeting had been called to ascertain the real problems of parents with regard to appointments at Ukhwezi School. He had not heard any slogans chanted during or after the meeting, mor had he heard anyone threaten the life of Mrs Mahlala.
5.1.5.2 Under cross-examination the witness testified that he had been invited to attend the meeting on 23 September 1999. Mr Bhuda had sat behind him and he hadn’t seen him leave. The witness had only left after the furniture had been re-arranged. In addressing the parents, the chairman told them that the Department wanted to hear what they felt about the problems at the school. Dr Shube had said that he did not have the power to tell parents who should be the Principal but he added that “...if a particular person was made Principal she might be found ‘angry’ the next day!”
5.1.6 Dr CG Shube (District Manager - Nelspruit)
5.1.6.1 In his evidence in chief, the witness testified that he had been invited to attended the meeting of parents called by the School Governing Body on 23 September 1999 held in the Roman Catholic Church hall. He had acted as Chairperson at this meeting. The meeting had been called in order for a Departmental manager, Mr Kutumela, to report on the interviews held at Ukhwezi Primary School. Mr Kutumela had been unable to attend the meeting as he had experienced a car problem. The witness testified that he had expressed concern at the meeting that the appointments could not be finalized and that he did not understand the delay. He had told the meeting that he could not make any recommendations as the matter was under arbitration. He had heard no slogans chanted.
5.1.6.2 Under cross-examination the witness testified that the School Governing Body had invited him to the meeting on 23 September 1999. There was no agenda, the meeting had been called to provide ‘feed-back’ to parents. He had attended the meeting in order to hear information first-hand from ‘grass roots’ level. He confirmed that the Chairperson of the School Governing Body was his sister. He had known both candidates for some time as he had been in the area since 1989. Whenever he was in Middleburg he had been accommodated at the home of Mr and Mrs Masombuko. Mr Masombuko had been his friend since 1975. He had never mentioned a word against Mrs Mohlala. His observation was that all parents seem to agree that Mrs Masombuko was the best candidate for the Principal’s post.
5.2 The Union’s Evidence
The Union called two witnesses.
5.2.1 Mrs Mohlala (Grievant and Principal - Eerstelingfontein School)
5.2.1.1 In her evidence in chief, the witness testified that she had seen the advertisement for the vacant posts at Ukhwezi Primary School and had made application on the grounds that she had considered herself a suitable candidate and that the school was nearer to her place of residence. In 1997 she had applied for the post of Deputy Principal and in 1998 for the post of Principal. She had never been informed of the results of either of these interviews. She had been invited to attend the 1999 interviews by Ms Nkasi. She had been interviewed for both posts at that time because that was the way the process had been structured.
5.2.1.2 Under cross-examination the witness testified that after the 1997 interviews she had written to the Department complaining about the illiteracy and incompetence of the School Governing Body who had conducted the interviews. She stated that the 1997 interview committee could ‘barely express themselves in any language’. She expressed the view that if the School Governing Body could not constitute a competent interview panel, people should be brought in from outside. The witness denied having instructed SADTU to declare a dispute after the 1998 interviews. She claimed to have read about the dispute in a report. When she had been informed that the 1999 interviews for Principal and Deputy Principal were to be combined she had not objected because she had no one to object to nor had she raised any questions about this at the time. The witness re-iterated that she considered the School Governing Body to be incompetent.
5.2.2 Mr W M Bhuda (Teacher - Belfast Primary School)
5.2.2.1 In his evidence in chief, the witness testified that he had attended a meeting of parents called by the School Governing Body on 23 September 1999. This meeting had been held in the Roman Catholic Church hall and had been attended by parents, the School Governing Body and Dr Shube who presented the Department of Education in the Nelspruit district. The purpose of the meeting was to hear a report-back from the Department on the February 1999 interview process. Mr Kutumela had tendered his apologies. According to the witness the meeting resolved that they would not accept an ‘outsider’ in the Principalship posts. If an outsider came in they would take their children out of the school. According to the witness the parents had stated that they wanted Messrs Masombuka and Hadebe as Principal and Deputy Principal respectively and that if Mrs Mohlala was appointed ‘she could be found dead the following day’. The witness testified that slogans had been chanted at the end of the meeting.
5.2.2.2 Under cross-examination the witness testified that he had arrived at the meeting as it was starting. He confirmed that slogans had been chanted after the meeting. These slogans had been directly linked to statements made during the meeting. The types of slogans chanted included ‘... away with Mohlala’, ‘... forward Masombuka and Hadebel”, ‘...if Mohlala in, kids out!’ According to the witness the meeting had been called to discuss the issue of the Principal of Ukhwezi School with the Department but the Departmental representative had been unable to attend.
5.2.2.3 Under re-examination the witness testified that a number of SADTU members had attended the meeting but no officials. The slogans had the effect of influencing parents against Mrs Mohlala even if they did not know her.
6 . ARGUMENTS OF THE PARTIES
6.1 The Department’s Argument
6.1.1 In his closing argument Mr Kutumela contended that the Department had established that there was a well-published and well-established set of selection criteria that had emanated from a resolution of the Education Labour Relations Council. This resolution had been incorporated into the Personnel Administration Measures of the Department. He argued that the evidence lead proved that the process of selection had been conducted in a fair and equitable manner. The fact that the School Governing Body had not followed the directive of the Deputy Director General in constituting a fairly representative panel should not be viewed as a serious defiance of an instruction because the Governing Body had, at a meeting and in terms of par 3.3(b) bullet 3, constituted part of the interview committee.
6.1.2 In her evidence in chief, the Grievant, Mrs Mohlala, had made no mention of any effect that the lack of representation of the educator component on the interview panel had on her application. SADTU had elected no to call it’s representative at the interview meeting. Mr PP Maseko, as a witness to corroborate the evidence of Mrs Mohlala. Mr Kutumela argued that this evidence could have assisted in describing what had transpired at the interviews.
6.1.3 Mr Kutumela proposed that the Department’s evidence had been corroborative, clear and straightforward on the fact that the interviews had been held in a fair manner and in compliance with the regulations. The Department’s witnesses had testified that the SADTU representative, Mr PP Maseko, had agreed with the conclusion of the committee that the process had been carried out in a fair manner. Mr Kutumela submitted that no factors had been advanced in this arbitration that support the allegation that the interview committee had deviated from the regulations relating to the selection process. The union had failed to examine the reasons as to why Mrs Mohlala had not been appointed. It had further failed to demonstrate defective reasoning on the part of the Governing Body in the selection process. Mr Kutumela re-iterated that a pre-interview meeting had been held between all the participants in the interview process in order to clear up any misunderstandings. Under cross-examination Mrs Mohlala agreed that she had referred to the School Governing Body as illiterate and incompetent in carrying out their duties. This has put tremendous strain on the Governing Body in trying to convince the parents to accept Mrs Mohlala as Deputy Principal of the school. Mr Kutumela argued that Mrs Mohlala’s application had little to do with the advancement of the school, but was out of convenience as Ukhwezi School was nearer to her place of residence.
6.1.4 The Employment of Educators Act provides that the head of Department is the employer of educators, the District head cannot appoint an educator. The Schools Act makes it a function of the School Governing Body to make recommendations to the employer. Neither the District Head nor the Circuit Manager can amend the recommendations of the School Governing Body.
6.1.5 According to Mr Kutumela a recommendation of the School Governing Body is a recommendation of the parents - the meeting of 23 September confirmed the decision of the School Governing Body.
6.1.6 With regard to the altered documents inspected by SADTU., Mr Kutumela argued that whatever had occurred prior to 1999 was irrelevant as there was an agreement that interviews would be held in 1999.
6.1.7 In conclusion Mr Kutumela pleaded that the Arbitration award should :-
• direct the Department to Appoint Mrs Masombuka to the position of Principal as recommended by the School Governing Body.
• refrain from appointing Mrs Mohlala to the position of Deputy Principal on the grounds that her comments about the literacy and competence of the members of the School Governing Body have created an unworkable relationship between the parties.
6.2 The Union’s Arguments
6.2.1 In his closing address Mr Mtembu argued that Mrs Mohlala had been unfairly treated and discriminated against on the grounds that she was highly qualified and was currently a Principal and had applied for both a Principal and Deputy Principal’s posts at Ukhwezi School. The School Governing Body, in their recommendation, had stated that Mrs Mohlala was highly qualified and was suitable for Secondary Schools. The School Governing Body had further excluded the grievant from the post of Deputy Principal on the grounds that such an appointment would constitute a demotion. According to Mr Mtembu, Mrs Mohlala’s current position as Principal at Eerstelingsfontein Primary School and that of Deputy Principal at Ukhwezi are both graded at post level 3 and therefore an appointment to this position would not constitute a demotion. The position of Principal of Ukhwezi is a post level 4 job.
6.2.2 Mr Mtembu expressed concern that Mrs Masombuka had been recommended by the parent component of the School Governing Body on the basis of their prior knowledge of her. Referring to the composition of the interview panel, Mr Mtembu contended that the parent component of the School Governing Body had decided to exclude the teacher component and had therefore defied the directive from the Deputy Director General dated 25 January 1999. He furthermore contended that by acting as interpreters during the interview process, the union official and the departmental official had breached the directive of the Deputy Director General.
6.2.3 Mr Mtembu argued that the agreed interview procedures had been further compromised by the fact that the interviews for Principal and Deputy Principal had been combined instead of having been conducted separately. As a result certain applicants had been disadvantaged. Furthermore at least one member of the interview committee was unable to speak or understand English but could only converse in Zulu. This member, however, continued to score candidates to whom questions had been put in English and who had responded in the same language.
6.2.4 According to Mr Mtembu, the chairperson of the School Governing Body had deliberately excluded the teacher component from the interview panel. He argued that this was unprocedural, unfair and discriminatory and had favoured certain applicants over others. Furthermore, according to Mr Thembu, the chairperson of the School Governing Body had used the influence of her brother, the District Head in this matter. He argued that the meeting of 23 September 1999 had been arranged in order that parents may take a decision to have ‘the wife of the chairperson’s brother’s friend’ appointed as Principal at the school.
6.2.5 In addition, Mr Mtembu argued that the required documentary procedure had not been complied with and furthermore the records of the interviews had been amended and tampered with.
6.2.6 In conclusion, Mr Mtembu pleaded that the arbitration award should :-
• nullify and set aside the recommendations of the School Governing Body in this matter.
• withdraw the functions of the School Governing Body in terms of s.22 of the South African Schools Act 84 of 1996.
• order that an independent panel of interview be instituted.
6.3 The Department’s counter - arguments
6.3.1 In response, Mr Kutumela argued that the District Manager had nothing to do with the recommendations of the School Governing Body he merely represented the Department at the meeting of the Parents. He stated that nothing prevented the Department from combining interviews. Insofar as the composition of the interview panel was concerned, the School Governing Body had decided that a certain number of parents should conduct the interviews and that the teacher component had been present when that decision had been taken. If the teachers had a problem they would have objected to the composition of the panel as it was constituted. The interview documents referred to by Mr Mtembu refer to interviews that were held prior to 1999 and were therefore, of no relevance. Finally he argued that only the Head of Department could withdraw the powers of the School Governing Body in terms of the Act.
6.4 The Union’s counter - arguments
6.4.1 In response, Mr Mtembu contended that an arbitration award could force the Head of Department to withdraw the powers of the School Governing Body. He argued that the two posts had been advertised separately in two different vacancy lists and therefore interviews should have been held separately. As far as process was concerned, the School Governing Body did not follow the directive of the Deputy Director General and Mr Simelane did not understand his role in the interview process.
7 . DISCUSSION OF ARGUMENT AND FINDINGS
7.1 In Assessing the evidence and argument for and against the issues in dispute and arriving at a finding, I have carefully considered my terms of reference in this matter as agreed by the parties.
7.2 It is common cause that the interview panel was not properly constituted in terms of the teacher/parent composition as prescribed by the memorandum of the Deputy District - General dated 25 January 1999. The Employment of Educators Act 76 of 1998, however, does not specify the composition of parent/teacher representation on the interview panel. s.3.3 (b) of the Act states that :-
“The interview committee shall comprise :
[i] In the case of public schools :-
• ...
• ...
• members of the School Governing Body, excluding educators members who are applicants to the advertised posts ... “
7.3 What needs to be considered in this regard, however, is the degree of prejudice, if any, suffered by the grievant due to the omission of teachers on the interview panel. Apart from highlighting the fact that teachers had been excluded from the panel, the union has failed to prove any prejudice suffered by Mrs Mohlala resulting from the omission. I am also conscious of the fac t that the teachers, themselves, were aware of their omission and had raised no complaint about this. Finally the SADTU representative, himself, appears to have expressed satisfaction with the procedure both at the pre-interview meeting and at the subsequent satisfaction post-interview review. Furthermore I find no problem with the union observer and the departmental official having assisted with interpretation as required.
7.4 The union further alleges that certain applicants for the posts of Principal and Deputy Principal were disadvantaged by the fact that interviews for the two posts were combined instead of being held separately and yet it failed to produce any evidence of such disadvantage. It further failed to support it’s contention that interviews should be held separately. In support of it’s contention in this regard the union relies on Resolution 5 of 1998 which, it argues, states that:- ‘Separate applications are to be submitted for each vacancy on form EDU!’ Nowhere does it state that separate interviews are to be held for each post.
7.5 The allegation that one member of the interview panel was unable to speak or understand English also remains unproven. It is common cause that this gentleman did pose certain questions in Zulu but this does not necessarily imply that he did not understand the responses that might have been given in English. Furthermore we have heard that at least two persons present were able to assist with translations as required.
7.6 In terms of the interview panel’s final recommendation Mrs Masombuka received the highest score and was unanimously recommended for appointment to the Principals post. Mrs Mohlala received the second highest score and was therefore placed as second contender for the Principals post and primary contender for the post of Deputy Principal. Apart from a number of very positive attributes highlighted by the panel, Mrs Mohlala was not considered for either post as it was felt that her reasons for applying were of a personal nature only. In that she would be near to her place of residence and might save some expenditure on transport. The panel found her looking in vision for the post of principal and, in spite of her high qualifications, the panel expressed their doubts as to her ability to upgrade the school. Insofar as her appointment as Deputy Principal was concerned the panel felt, rightly or wrongly, that such appointment would constitute a demotion. Although not specifically mentioned by the interview panel one cannot overlook the strained relationship between Mrs Mohlala and the School Governing Body arising out of her allegations of their illiteracy and incompetence. The relationship between the Principal, Deputy Principal and the School Governing Body is an intimate one in any school and particularly in a small school such as Ukhwezi Primary. I have no doubt that Mrs Mohlala damaged any potential relationship she might have had with the School Governing Body irreparably when she made these accusations against them. The fact that the School Governing Body has had a long and satisfactory relationship with Mrs Masombuka can only stand in her favour and should not be viewed as favouritism. The onus lies with the interview panel to recommend the best candidates for the particular jobs.
7.7 Insofar as the old application forms are concerned, I agree with Mr Kutumela that these documents referred to applications prior to the 1999 interview process and are of no relevance whatsoever.
7.8 The fact that the District Head happens to be a long-standing friend of Mrs Masombuka’s husband in no way proves the union’s allegation of nepotism. Nor does the fact that he also happens to be the brother of the chairperson of the School Governing Body.
7.9 in his evidence in chief Mr Bhuda testified to the fact that a number of slogans had been chanted at the meeting of parents held on 23 September 1999. He further testified to threats having been made against Mrs Mohlala’s life should she be successful in her application to Ukhwezi school. Subsequent witnesses in the persons of Mr Methula and Dr Shuba have testified to attending the same meeting but not having heard any slogans chanted or any threats made.
8 . AWARD
8.1 In the light of the above, it is my award that the recommendations of the interview panel as constituted on 12 February 1999 be implemented.
8.2 Mrs NA Masombuka will be appointed as Principal of Ukhwezi Primary School and Miss ES Radebe will be appointed as Deputy Principal with effect from the date of this award.
________________________
PHILLIP COHEN
ARBITRATOR
DATE: 12 NOVEMBER 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES GAAR003919 MP
APPLICANT L MOHLALA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR PHILLIP COHEN
DATE OF ARBITRATION 4 & 29 OCTOBER 1999 & 1 NOVEMBER 1999
VENUE BELFAST
REPRESENTATION:
APPLICANT MR D MTEMBU
RESPONDENT MR W KUTUMELA
AWARD:
1 In the light of the above, it is my award that the recommendations of the interview panel as constituted on 12 February 1999 be implemented.
2 Mrs NA Masombuka will be appointed as Principal of Ukhwezi Primary School and Miss ES Radebe will be appointed as Deputy Principal with effect from the date of this award.
DATE OF AWARD 12 NOVEMBER 1999