PSES 11/99 0737 WC
PSES 11/99 0737 WC
Award Date:
14 February 2000
Case Number: PSES 11/99 0737 WC
Province: Western Cape
Applicant: M A DLIKILILI
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 14 February 2000
Arbitrator: DAVID MIAS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 11/99 0737 WC
In the arbitration between:
M A DLIKILILI APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . TERMS OF REFERENCE
1.1 This matter is referred for arbitration in terms of the dispute resolution procedures of the Education Labour Relations Council. The relevant resolution of the council provides that an arbitrators terms of reference are to arbitrate any dispute referred to him/her and to award a remedy which him/she considers fair and/or appropriate in order to settle the dispute.
1.2 There was no pre-arbitration agreement in this matter. The parties agreed on the day of the arbitration hearing that the dispute concerned the failure of the governing body of Alfred Stamper School to appoint the employee to either post 3489 (Deputy Principal) or post 3498 (Head of Department), as advertised on vacancy list number 4 of 1999. The grounds of the employee’s grievance are set out in letter dated 9 September 1999 which the parties agreed at the arbitration hearing would form the basis and set the parameters for the arbitration hearing.
1.3 The dispute in this matter may be characterised as one relating to an unfair labour practice relating to promotion, demotion or the provision of benefits as set out in Item 2(1)(b) of Schedule 7 to the Labour Relations Act. In summary, both posts were advertised as requiring a person who could teach senior primary subjects and perform certain administrative duties.
2 . THE EVIDENCE FOR THE EMPLOYEE
2.1 The employee explained the basis of his case. His complaint was as follows :
2.1.1 He questioned the role of the principal of the school at the meeting of the governing body where the decision was taken to nominate other persons for the 2 posts. He and the principal of Alfred Stamper had been contestants for the post of principal of the school. He had lost that contest and believed that a principal plays an influential role at meetings of governing bodies, thereby ensuring that the employee was not appointed to either of the 2 posts. He stated that his relationship with the principal had been cool, if not antagonistic, ever since the contest of the position of principal.
2.1.2 The employee argued that he was better qualified for the either position than the 2 persons who were eventually nominated by the governing body of the school. This argument was to be based on his contribution towards the development of the school and his special administrative skills amongst which he included experience in personnel administration in the private sector.
2.1.3 He believed that one of the appointees who was nominated for head of department had been given the post because she was unmarried and had children, a factor which he believed was irrelevant to the process.
2.1.4 The employee also complained that whilst his brother had been excluded from the selection committee that made appointments to the 2 posts on the basis of his relationship with him, the principal had been presented at a committee meeting when his own daughter was appointed by the governing body.
2.2 The employee called 2 witnesses namely Yvonne Khutwane and Philda Yeko. Khutwane had been a member of the school committee in the reign of a previous principal at the school. She gave evidence of the contributions made to the development and functioning of the school at that time. Thus the employee had been instrumental in the renovation of the school, negotiations with the department to secure those renovations and the introduction of school feeding. She had not served on the current governing body and stated she could not speak about the current nominee for either the post of deputy principal or head of department. She was not in the position to make any comparisons.
2.3 Philda Yeko is currently a teacher at Alfred Stamper. She gave more account of the contributions of the employee to the development and functioning of the school in more detail than Yvonne Khutwane. She stated that as far as the head of department nominee, Ms S Kenjana was concerned, that Kenjana had not made the contribution that the employee in this matter had. She described Ms S Nkentsha, nominee, for deputy principal, as a ‘willing horse’ at the school but declined to comment on his appointment in any comparative way and with specific reference to the employee.
2.4 Philda Yeko conceded in cross-examination that by the time applicants had reached the interview stage, after advertising and the submission of their CV’s and the short-listing process, each was asked the same set of questions at the interview. The performance of applicants at the interviews played a role in the decision of the interviewing committee as to whether they are nominated or not.
2.5 The employee himself gave evidence the thrust of which related to his possession of better administrative skills than any of the other applicants. He suggested that a reading of his CV and supporting documents would reveal that he had the same qualifications as those who were appointed but was possessed of better administrative experience in that he had worked as a personnel officer in the private sector. He also expanded on his contribution to the school, confirming the evidence of Philda Yeko and Yvonne Khutwane in this regard.
2.6 The employee explained how a previous school committee had nominated him for the post of principal. In the transition under the new school administration system, a new school committee had nominated the present incumbent who was eventually appointed. This present incumbent had disputed his nomination for the post, but he, the employee, had not disputed the nomination of the present incumbent for the reason that he did not wish to disrupt the school. He asserted that the principal of a school exerted great influence on the decisions of the governing body of the school. Since the dispute about the principalship his relationship with the principal had cooled to the point where his presence was not acknowledged by greetings.
2.7 The employee also explained how in February 1999 he had been called to a meeting of the present governing body and questioned about his refusal to accept additional pupils into his classroom which he stated was then already over-crowded. The governing body had backed off but he believed that they considered him uncooperative as a result of the stand that he took in that instance. He believed that the principal and the school committee did not wish to have him at the school.
2.8 The employee was cross-examined. He stated he was aware of the process to be followed in the appointment of teachers. There would be an advertisement, applications would be received and sifted whereafter there would be short-listing. This would be followed by the interview process. He conceded that the mere fact that one applied did not mean that you should be appointed. He conceded further that the interview process played a very important role in making appointments. When asked whether he believed that he would have been invited to an interview if the governing body had not examined his CV, he first conceded that that was not likely but then immediately changed this to say that he did not know. When it was put to him that it is a matter of common sense that they must have examined his CV, his response was that an illiterate member of the committee could not have examined applications and CV’s as ‘scrupulously’ as might someone who was not illiterate. He conceded however that candidates come to interviews on an equal basis.
2.9 With regard to the role of the principal it was put to the employee in cross-examination that the was merely a scribe and in this sense the resource person of the education department and that he had not participated in any decision making process. Whilst the employee did not contest this he questioned whether the principal could be there as principal, departmental representative and scribe.
2.10 It was also put to the employee that be belonged to a certain trade union namely CATU, which is an affiliate to NAPTOSA and that union members had been present at the short-listing and interview processes. No objection had been received from his union even though their role at these meetings was to observe and ensure fairness in the process. The employee conceded that his union had not objected to the process and that he had personally lodged his grievance, from which the union appeared to have dissociated itself.
2.11 The employee was invited to bring his brother to give evidence on the question that one or more governing body members were to have expressed themselves of the view that the unmarried female teacher should receive the appointment of head of department. He left the arbitration hearing in order to find his brother but reported back that he was unsuccessful. He eventually decided not to call his brother.
3 . THE EVIDENCE FOR THE EMPLOYER
3.1 The employer called the chairperson of the governing body, Golden Pukayi who stated that the was now into his third term as chairperson of the governing body of the school and was familiar with the selection processes. He confirmed that unions had been invited to both short-listing, interview and nomination processes and had in fact attended. He explained how on the day of the short-listing of candidates the committee had spent an entire day on this process and in fact had dinner at their meeting in order to finish their business. At the short-listing process they had agreed with the unions on certain additional criteria for the 2 posts and on that basis they selected set questions for each applicant from a departmental list of possible questions. All candidates were asked the same questions. They had agreed with the unions that successful candidates should be appointed by consensus of everyone present at the meetings.
3.2 Mr Pukayi explained how all persons who needed to be recused had in fact done so and did not participate in the process at all.
3.3 With regard to the role of the principal Mr Pukayi explained that he was present at the process as a representative of the Department of Education and as such had been asked to act as scribe. However, he emphasised that the principal had not participated in the process and had said nothing about who should be the nominee for either posts. In his view the governing body had applied the prescribed process to the letter and this was evidenced by the fact that the union had not had any objections thereto. The union in fact had confirmed the legitimacy of the process.
3.4 Mr Pukayi was cross-examined by the employee who in the course of that cross-examination indicated that his objection to the presence of Mr Pukayi at a previous meeting of the governing body (on the basis of possible bias), had no relevance to the matter before me. That meeting had dealt with the appointment of Mr Kukayi’s daughter at the school. He stated that this objection had been withdrawn on a previous occasion. It was merely mentioned to indicate how the governing body could malfunction.
3.5 An important feature of the entire matter was the employee’s statement to Mr Kukayi that it must have been difficult to tell from a CV whether any applicant had the necessary communication skills required to perform administrative duties. Mr Pukayi replied that he did not have the CV’s before him but that on the basis of the CV’s of the 4 applicants for the 2 posts, a set list of questions had been decided for presentation at the interview and to judge the response of the various applicants.
4 . EVALUATION
4.1 The employee clearly failed to understand the Education Department’s regulations with regard to short-listing and interviews. Whilst the present incumbent of the post of principal of the school was present at the meeting, the evidence from the employee was that he was there as a departmental representative (observer and resource person). In that capacity he did not participate in the meeting as principal. I need to point out that it was not argued before me in any way that the absence of the principal in any way vitiated the proceedings. In any event it seems to me that the principal may be present both as principal and as departmental representative.
4.2 The evidence of the chairperson of the governing body was not challenged with any success on fundamental questions as to the conduct of the entire process. The sort-listing process had been given careful attention. The employee himself was one of the person short-listed. The interview process was by all accounts fair and reasonable. The employee’s trade union had been satisfied by the process and had not recorded any objections. The employee’s argument that his union had basically deserted him as it was in league with the principal and governing body was not supported by any evidence placed before me and remains nothing but a speculative possibility.
4.3 The evidence lead in this matter does not suggest any impropriety in the part of the governing body or the principal. It is so that the employee has applied for the post of principal, the post of deputy principal as well as the post of head of department and feels aggrieved at not having been successful in any of these applications. That he appears to be well qualified, educated and by all accounts is an excellent administrator is in my view not sufficient to suggest that he ought to have been appointed. Indeed, I have no authority to make any appointment in the matter. The employee’s plea that an objective comparison of his qualification, experience and abilities with those of the 2 persons that were eventually nominated for the posts would lead any right thinking person to appoint him, is with respect not the issue. There is an area of decision making by persons and bodies where if all the prescriptions and rules are followed, a legitimate preference for one person appointed satisfied all the minimum requirements for the job and I can see no basis on which I might interfere with the decision of the governing body.
5 . AWARD
In the circumstances the employee’s unfair labour practice claim is dismissed.
_______________________
ARBITRATOR
DAVID MIAS
Date : 6 February 2000
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 11/99 0737 WC
APPLICANT M A DLIKILILI
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR DAVID MIAS
DATE OF ARBITRATION 6 FEBRUARY 2000
VENUE
REPRESENTATION:
APPLICANT
RESPONDENT
AWARD:
In the circumstances the employee’s unfair labour practice claim is dismissed.
DATE OF AWARD 14 FEBRUARY 2000
Province: Western Cape
Applicant: M A DLIKILILI
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 14 February 2000
Arbitrator: DAVID MIAS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 11/99 0737 WC
In the arbitration between:
M A DLIKILILI APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . TERMS OF REFERENCE
1.1 This matter is referred for arbitration in terms of the dispute resolution procedures of the Education Labour Relations Council. The relevant resolution of the council provides that an arbitrators terms of reference are to arbitrate any dispute referred to him/her and to award a remedy which him/she considers fair and/or appropriate in order to settle the dispute.
1.2 There was no pre-arbitration agreement in this matter. The parties agreed on the day of the arbitration hearing that the dispute concerned the failure of the governing body of Alfred Stamper School to appoint the employee to either post 3489 (Deputy Principal) or post 3498 (Head of Department), as advertised on vacancy list number 4 of 1999. The grounds of the employee’s grievance are set out in letter dated 9 September 1999 which the parties agreed at the arbitration hearing would form the basis and set the parameters for the arbitration hearing.
1.3 The dispute in this matter may be characterised as one relating to an unfair labour practice relating to promotion, demotion or the provision of benefits as set out in Item 2(1)(b) of Schedule 7 to the Labour Relations Act. In summary, both posts were advertised as requiring a person who could teach senior primary subjects and perform certain administrative duties.
2 . THE EVIDENCE FOR THE EMPLOYEE
2.1 The employee explained the basis of his case. His complaint was as follows :
2.1.1 He questioned the role of the principal of the school at the meeting of the governing body where the decision was taken to nominate other persons for the 2 posts. He and the principal of Alfred Stamper had been contestants for the post of principal of the school. He had lost that contest and believed that a principal plays an influential role at meetings of governing bodies, thereby ensuring that the employee was not appointed to either of the 2 posts. He stated that his relationship with the principal had been cool, if not antagonistic, ever since the contest of the position of principal.
2.1.2 The employee argued that he was better qualified for the either position than the 2 persons who were eventually nominated by the governing body of the school. This argument was to be based on his contribution towards the development of the school and his special administrative skills amongst which he included experience in personnel administration in the private sector.
2.1.3 He believed that one of the appointees who was nominated for head of department had been given the post because she was unmarried and had children, a factor which he believed was irrelevant to the process.
2.1.4 The employee also complained that whilst his brother had been excluded from the selection committee that made appointments to the 2 posts on the basis of his relationship with him, the principal had been presented at a committee meeting when his own daughter was appointed by the governing body.
2.2 The employee called 2 witnesses namely Yvonne Khutwane and Philda Yeko. Khutwane had been a member of the school committee in the reign of a previous principal at the school. She gave evidence of the contributions made to the development and functioning of the school at that time. Thus the employee had been instrumental in the renovation of the school, negotiations with the department to secure those renovations and the introduction of school feeding. She had not served on the current governing body and stated she could not speak about the current nominee for either the post of deputy principal or head of department. She was not in the position to make any comparisons.
2.3 Philda Yeko is currently a teacher at Alfred Stamper. She gave more account of the contributions of the employee to the development and functioning of the school in more detail than Yvonne Khutwane. She stated that as far as the head of department nominee, Ms S Kenjana was concerned, that Kenjana had not made the contribution that the employee in this matter had. She described Ms S Nkentsha, nominee, for deputy principal, as a ‘willing horse’ at the school but declined to comment on his appointment in any comparative way and with specific reference to the employee.
2.4 Philda Yeko conceded in cross-examination that by the time applicants had reached the interview stage, after advertising and the submission of their CV’s and the short-listing process, each was asked the same set of questions at the interview. The performance of applicants at the interviews played a role in the decision of the interviewing committee as to whether they are nominated or not.
2.5 The employee himself gave evidence the thrust of which related to his possession of better administrative skills than any of the other applicants. He suggested that a reading of his CV and supporting documents would reveal that he had the same qualifications as those who were appointed but was possessed of better administrative experience in that he had worked as a personnel officer in the private sector. He also expanded on his contribution to the school, confirming the evidence of Philda Yeko and Yvonne Khutwane in this regard.
2.6 The employee explained how a previous school committee had nominated him for the post of principal. In the transition under the new school administration system, a new school committee had nominated the present incumbent who was eventually appointed. This present incumbent had disputed his nomination for the post, but he, the employee, had not disputed the nomination of the present incumbent for the reason that he did not wish to disrupt the school. He asserted that the principal of a school exerted great influence on the decisions of the governing body of the school. Since the dispute about the principalship his relationship with the principal had cooled to the point where his presence was not acknowledged by greetings.
2.7 The employee also explained how in February 1999 he had been called to a meeting of the present governing body and questioned about his refusal to accept additional pupils into his classroom which he stated was then already over-crowded. The governing body had backed off but he believed that they considered him uncooperative as a result of the stand that he took in that instance. He believed that the principal and the school committee did not wish to have him at the school.
2.8 The employee was cross-examined. He stated he was aware of the process to be followed in the appointment of teachers. There would be an advertisement, applications would be received and sifted whereafter there would be short-listing. This would be followed by the interview process. He conceded that the mere fact that one applied did not mean that you should be appointed. He conceded further that the interview process played a very important role in making appointments. When asked whether he believed that he would have been invited to an interview if the governing body had not examined his CV, he first conceded that that was not likely but then immediately changed this to say that he did not know. When it was put to him that it is a matter of common sense that they must have examined his CV, his response was that an illiterate member of the committee could not have examined applications and CV’s as ‘scrupulously’ as might someone who was not illiterate. He conceded however that candidates come to interviews on an equal basis.
2.9 With regard to the role of the principal it was put to the employee in cross-examination that the was merely a scribe and in this sense the resource person of the education department and that he had not participated in any decision making process. Whilst the employee did not contest this he questioned whether the principal could be there as principal, departmental representative and scribe.
2.10 It was also put to the employee that be belonged to a certain trade union namely CATU, which is an affiliate to NAPTOSA and that union members had been present at the short-listing and interview processes. No objection had been received from his union even though their role at these meetings was to observe and ensure fairness in the process. The employee conceded that his union had not objected to the process and that he had personally lodged his grievance, from which the union appeared to have dissociated itself.
2.11 The employee was invited to bring his brother to give evidence on the question that one or more governing body members were to have expressed themselves of the view that the unmarried female teacher should receive the appointment of head of department. He left the arbitration hearing in order to find his brother but reported back that he was unsuccessful. He eventually decided not to call his brother.
3 . THE EVIDENCE FOR THE EMPLOYER
3.1 The employer called the chairperson of the governing body, Golden Pukayi who stated that the was now into his third term as chairperson of the governing body of the school and was familiar with the selection processes. He confirmed that unions had been invited to both short-listing, interview and nomination processes and had in fact attended. He explained how on the day of the short-listing of candidates the committee had spent an entire day on this process and in fact had dinner at their meeting in order to finish their business. At the short-listing process they had agreed with the unions on certain additional criteria for the 2 posts and on that basis they selected set questions for each applicant from a departmental list of possible questions. All candidates were asked the same questions. They had agreed with the unions that successful candidates should be appointed by consensus of everyone present at the meetings.
3.2 Mr Pukayi explained how all persons who needed to be recused had in fact done so and did not participate in the process at all.
3.3 With regard to the role of the principal Mr Pukayi explained that he was present at the process as a representative of the Department of Education and as such had been asked to act as scribe. However, he emphasised that the principal had not participated in the process and had said nothing about who should be the nominee for either posts. In his view the governing body had applied the prescribed process to the letter and this was evidenced by the fact that the union had not had any objections thereto. The union in fact had confirmed the legitimacy of the process.
3.4 Mr Pukayi was cross-examined by the employee who in the course of that cross-examination indicated that his objection to the presence of Mr Pukayi at a previous meeting of the governing body (on the basis of possible bias), had no relevance to the matter before me. That meeting had dealt with the appointment of Mr Kukayi’s daughter at the school. He stated that this objection had been withdrawn on a previous occasion. It was merely mentioned to indicate how the governing body could malfunction.
3.5 An important feature of the entire matter was the employee’s statement to Mr Kukayi that it must have been difficult to tell from a CV whether any applicant had the necessary communication skills required to perform administrative duties. Mr Pukayi replied that he did not have the CV’s before him but that on the basis of the CV’s of the 4 applicants for the 2 posts, a set list of questions had been decided for presentation at the interview and to judge the response of the various applicants.
4 . EVALUATION
4.1 The employee clearly failed to understand the Education Department’s regulations with regard to short-listing and interviews. Whilst the present incumbent of the post of principal of the school was present at the meeting, the evidence from the employee was that he was there as a departmental representative (observer and resource person). In that capacity he did not participate in the meeting as principal. I need to point out that it was not argued before me in any way that the absence of the principal in any way vitiated the proceedings. In any event it seems to me that the principal may be present both as principal and as departmental representative.
4.2 The evidence of the chairperson of the governing body was not challenged with any success on fundamental questions as to the conduct of the entire process. The sort-listing process had been given careful attention. The employee himself was one of the person short-listed. The interview process was by all accounts fair and reasonable. The employee’s trade union had been satisfied by the process and had not recorded any objections. The employee’s argument that his union had basically deserted him as it was in league with the principal and governing body was not supported by any evidence placed before me and remains nothing but a speculative possibility.
4.3 The evidence lead in this matter does not suggest any impropriety in the part of the governing body or the principal. It is so that the employee has applied for the post of principal, the post of deputy principal as well as the post of head of department and feels aggrieved at not having been successful in any of these applications. That he appears to be well qualified, educated and by all accounts is an excellent administrator is in my view not sufficient to suggest that he ought to have been appointed. Indeed, I have no authority to make any appointment in the matter. The employee’s plea that an objective comparison of his qualification, experience and abilities with those of the 2 persons that were eventually nominated for the posts would lead any right thinking person to appoint him, is with respect not the issue. There is an area of decision making by persons and bodies where if all the prescriptions and rules are followed, a legitimate preference for one person appointed satisfied all the minimum requirements for the job and I can see no basis on which I might interfere with the decision of the governing body.
5 . AWARD
In the circumstances the employee’s unfair labour practice claim is dismissed.
_______________________
ARBITRATOR
DAVID MIAS
Date : 6 February 2000
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 11/99 0737 WC
APPLICANT M A DLIKILILI
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR DAVID MIAS
DATE OF ARBITRATION 6 FEBRUARY 2000
VENUE
REPRESENTATION:
APPLICANT
RESPONDENT
AWARD:
In the circumstances the employee’s unfair labour practice claim is dismissed.
DATE OF AWARD 14 FEBRUARY 2000