In the arbitration between:

E. L. OGLE FIRST APPLICANT
V. Z. DALAIS SECOND APPLICANT

and

DEPARTMENT OF EDUCATION, KZN FIRST RESPONDENT
A SINGH SECOND RESPONDENT

AWARD

DETAILS OF HEARING AND REPRESENTATION

[1] This arbitration hearing took place on the 24th August 2016, the 25th August 2016 and was eventually finalised on the 13th August 2018 at the Durban Teachers Centre, College Road, Durban, KwaZulu-Natal.
[2] There was a lengthy delay of approximately two years in the proceedings between the 25th August 2016 and the 13th August 2018 on account of various logistical issues. These involved, amongst others, the illness of the first applicant and the unavailability of the second respondent and/or his representative due to extraneous factors.

[3] The second respondent was represented, consecutively, by three SADTU officials but eventually conducted his own case.
[4] The hearing was digitally recorded.
[5] The representatives made an application to submit closing arguments in writing on or before the 27th August 2018 which application I granted. Such arguments were received timeously from the second respondent on the 26th August 2018. The applicant’s closing arguments were only received by this arbitrator from Council on the 18th September 2018. The first respondent did not submit any closing arguments.
[6] I accordingly regard the 18th September 2018 as being the final date of the arbitration. I proceed to issue this award in the absence of the first respondent’s closing arguments.

ISSUE IN DISPUTE

[7] In terms of the Pre-Arbitration minute I am required to decide whether or not:

7.1 the applicants were the victims of an unfair labour practice;
7.2 the second respondent’s appointment should be set aside; and
7.3 the interview process should be redone by a new and independent interview committee.

BACKGROUND TO THE DISPUTE

[8] The first applicant, E. L. Ogle is a Post Level 3 Educator and Deputy Principal at Austerville Primary School, Durban. First applicant is currently the Acting Principal of the school. Second applicant is a Post Level 2 Educator and Head of Department, foundation phase, at the school. The second respondent, A Singh, was a Post Level 1 Educator also based at the Austerville Primary School.
[9] The two applicants and the second respondent applied for the post of Principal of the school, that is Post No. 391, advertised in terms of Human Resources Management Circular No. 38 of 2015 (the circular). Five candidates including the two applicants and second respondent were shortlisted and interviewed. Second respondent was ranked as the number one candidate, first applicant as the number two candidate and second applicant as the number five candidate.
[10] The second respondent was appointed to the post with effect from the 11th January 2016 and assumed duty on the 12th January 2016. The two applicants referred a dispute to Council alleging that they had been the victims of an unfair labour practice relating to non appointment.
[11] The dispute was set down for conciliation, remained unresolved and thereafter referred to arbitration.
[12] On the 9th June 2016 the parties concluded a Pre-arbitration minute(the minute) which was marked as Exhibit A. The parties also submitted a common bundle of documents which was marked as Exhibit B.
[13] In terms of paragraph 8 of the minute the applicant seeks relief in the form that the interview process be redone.

ANALYSIS OF EVIDENCE AND ARGUMENT

[14] The facts of this dispute appear from the analysis that follows.
[15] The dispute was referred in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the LRA). That section defines an unfair labour practice as follows:-
“Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving;
(a) Unfair conduct by the employer relating to promotion, demotion, probation ( …) or training of an employee or relating to the provision of benefits to an employee;
(b) …”

[16] The facts in dispute were identified by the parties in the minute as follows:
“The facts in dispute are whether or not:-
6.1 The SADTU representative intervened during the interview process and convinced the interview committee to reduce the scores of the two applicants;
6.2 Mr. Mbanjwa, a member of the interview committee, colluded with the SATU representative to reduce the applicant’s scores;
6.3 The resource person failed to ensure that the interview process was carried out in terms of HRM38 of 215, in that:-
(a) He allowed the minutes of the interview process to be taken by someone other than the secretary of the interview committee;
(b) He allowed the SADTU representative to intervene in the interview process; and
(c) He failed to ensure that the scores of the fourth ranked candidate and the second applicant were deliberated on in the scoring process.
6.4 The selection committee failed to invite the NAPTOSA representative to the ratification process; and
6.5 The Chairperson of the SGB instructed the secretary of the interview process to leave the ratification process.”
[17] The first applicant E. L. Ogle; V. Soobramoney, the NAPTOSA observer; Reginald Harper, the former school principal and D. E. Leaf, the school secretary testified on behalf of the applicants. The first respondent did not call any witnesses.The second respondent testified on his own behalf.
[18] I turn then to an analysis of the individual allegations as stipulated in the minute set out above.

The role of the SADTU representative

[19] The applicants allege in paragraph 6.1 of the minute that the SADTU representative, Mr. Mbambo, intervened during the interview process and convinced the Interview Committee to reduce the score of the two applicants. V. Soobramoney testified that as a result of Mbambo’s intervention the scores of the two applicants were reduced. Mbambo objected to Dalais’s score because it was too high. He further implied that there was some prior relationship between Ogle and Marais the Chairperson of the IC. In the circumstances the scores of the two applicants and candidate Ishwar were reviewed and reduced. Moreover Mbanjwa supported Mbambo in insisting that the applicant’s scores be reduced.
[20] Soobramoney further testified that the scores of the second respondent and candidate Preeth were neither reviewed nor reduced. This evidence was confirmed by Harper and further corroborated by the minutes of the interview process (B9) at point 5. Neither the first respondent nor the second respondent called Mbambo or Mbanjwa or anyone else to refute these allegations. The second respondent also failed to do so. In the absence of an opposing version I accept the evidence of Soobramoney and Harper. HRM 38 of 2015 provides at paragraph 16.3 with regards to interviews that, “All interviewees must receive similar treatment during the interviews”.
[21] In the premises I find that the two applicants were treated differently from candidates 4 and 5 and that such treatment was unfair.

Alleged collusion

[22] In paragraph 6.2 of the minute the applicants allege that Mbambo colluded with Mbanjwa in causing the applicant’s scores to be reduced. The Cambridge English dictionary defines collusion as an agreement between people to act together secretly or illegally in order to deceive or cheat someone. The Oxford Dictionary describes collusion as a fraudulent, secret understanding especially between ostensible opponents. What is common in both definitions is that there must be an understanding or an agreement between the parties alleged to be colluding. The role of Mbambo on this aspect is already known. No evidence has however been placed before me proving an agreement or understanding between Mbambo and Mbanjwa. The fact that both insisted on the applicant’s scores being reduced raises suspicion that there was such collusion. I however am bound by the evidence before me.
[23] What has been proved is that that the applicant’s scores were reduced. Soobramoney further testified that she objected to the scores being reviewed and reduced whilst the scores of the second respondent and candidates Preeth were not. Her objection was brushed aside by the curt response from Mbanjwa that he was not being paid and that the selection committee should move on.
[24] I am unable to find on the available evidence, despite any suspicions that I may have otherwise, that there was collusion between Mbambo and Mbanjwa.

Interview procedure

[25] In terms of paragraph 6.3 of the minute the applicants allege that the resource person, Hlatshwayo, failed to ensure that the interview process was carried out in terms of HRM 38 of 2015, in that, he allowed the minutes to be taken by someone other than the secretary, he allowed the SADTU representative to intervene in the process and he finally failed to ensure that the scores of the second respondent and candidate Preeth were reviewed.
[26] HRM 38/2015 is silent on what the exact role of the resource person is. The function of the Resource Person is literally implied in its title. That role would be to provide the necessary resources to facilitate the conduct of the selection process. By definition that must include making HRM 38 of 2015 available to the selection committee. The applicants allege that he failed to do so. Soobramoney testified that as a consequence the selection process was chaotic. Hlatshwayo was not called to refute these allegations. The allegations that he failed to provide the HRM 38 of 2015 and that the process was therefore chaotic stands undisputed.
[27] There is no provision in HRM 38 of 2015 that requires the resource person to ensure what should or should not be done in the selection process, other than to provide the necessary resources. Logic will dictate that such responsibility falls upon the chairperson of the selection committee. I find that the allegations made against Hlatswayo, relating to the conduct of the process and notwithstanding his deficient participation therein, ought to have been directed against the chairperson of the selection committee.

Ratification process

[28] At paragraph 6.4 of the minute, the applicants allege that Soobramoney was not invited to the ratification process of the 24th November 2015.Soobramoney confirmed this. Her evidence was further supported by Mrs. Leaf as well as the minutes of that process (B10).
[29] The requirement that union representatives be invited to the ratification process is spelt out in paragraph 9.6.1 of the circular. It is not in dispute that Soobramoney was not invited. I therefore find that the selection committee breached clause 9.6.1 of the circular.
[30] That breach is aggravated by Soobramoney’s undisputed evidence that she was intent on attending same to highlight the irregularities committed in the process and the unfairness suffered by the applicants. The deficiencies and the irregularities could apparently have been dealt with as early as the 28th November 2015 as opposed to three years later.
[31] Soobramoney claimed that she and Harper were deliberately not invited because Mbanjwa did not want such irregularities to be exposed. This accusation is not unreasonable. The overall probabilities suggest that was in fact the case.
[32] At paragraph 6.5 of the minute the applicants allege that the secretary of the SGB, Leaf, was instructed to leave the process.This is not in dispute. Leaf also confirmed that had she been allowed to remain at the ratification meeting she too would have exposed the aforesaid irregularities. I therefore find on a balance of probabilities that the selection process in respect of the post in dispute was irregular and unfair for that reason as well.
[33] The allegation that the applicant’s scores were reduced, whilst procedural in nature, had the substantive effect of denying the two applicants the opportunity of competing fairly for the post. Unfortunately no detailed finding can be made in this regard.
[34] The number of marks by which the applicant’s scores were lowered is unknown. I am unable to determine which applicant was the best candidate for the post. In any event neither applicant made this claim in the arbitration or led evidence in that regard. I therefore cannot determine which applicant was the best candidate. Applicant’s case was focussed instead on proving that the second respondent was not the best candidate and that he ought not to have been shortlisted to compete for the post in the first place.

The Interview Assessment

[35] The selection committee found that the best candidate was the second respondent. The applicant’s alleged that the second respondent made several misrepresentations pertaining to his qualifications, experience and credentials. While it is not necessary to discuss the extensive details that were raised, a case in point would be that the second respondent, by the clever use of language purports in his CV that he acted as a Head of Department and Acting Principal. Applicants’ witnesses Ogle, Leaf and Harper confirmed that the applicant did not act in any of those capacities. Various other representations made by the second respondent in his CV appear to be exaggeration or misinformation. Suffice it to say that it is common cause that the second respondent was disciplined for submitting false information in his CV and found guilty of that offence. Whilst the applicant has appealed that finding, I would, on the evidence before me, have arrived at the same finding.
[36] In the premises I find that the second respondent made several false claims and misrepresentations in his CV which were designed to bolster his qualifications, experience and credentials. The probabilities are that resulted in him being shortlisted, interviewed and appointed to the post.
[37] The second respondent testified in an attempt to refute the allegations made against him by the two applicants. His case however consisted of a bare denial of each allegation. Such denials were not supported by any other evidence in the form of witnesses or documentary evidence. The probabilities indicate that the second respondent ought not to have been shortlisted and interviewed for the post in dispute.
[38] The applicants’ case on the other hand was supported by the evidence of Soobramoney, Harper and Leaf. The allegations with regard to the misrepresentations and false claims in the applicant’s CV, was confirmed in particular by Harper and Leaf.
[39] In summary I find that the failure by the selection committee to abide by the procedures stipulated in HRM 38 of 2015 was irregular and of such a serious nature that they collectively vitiate the selection process. This finding is bolstered by the misrepresentations and false information contained in second respondent’s CV. On a conspectus of the evidence led by the applicants the overwhelming probabilities are that the selection process was unfair to the applicants, both procedurally and substantively.

Relief

[40] Applicants seek an order in the minute that the interview process be redone. In their closing arguments however the applicants request an order that the first applicant be appointed to the post. This on the basis that she has suffered the most prejudice and in any event is the best candidate for the post. I reiterate that this was never the case that the applicants sought to make in the arbitration.
[41] In any event I am not, on the information and evidence available to me, in a position to make that determination. Moreover two other candidates, namely; candidates Ishwar and Preeth competed for the post. There is no evidence before me of how they performed in the interview process. An arbitrator would be justified in making an appointment if that candidate has proved that he or she is the best candidate for the post. The applicant’s case could not by the unified way in which it was presented have drawn any distinction between candidate Dalais and candidate Ogle. In the premises I am unable, on the available evidence, to make any finding in regards to who the best candidate for the post is.
[42] I digress briefly to mention that the roles of the officials who participated in the selection process and the role of the union representative require some investigation by the first respondent. I make this point because the Austerville Primary School had to function for the past three years without a full time principal. Moreover it came to light that the fall out between the two applicants and second respondent spilled over into the school community.
[43] Section 28(2) of the Constitution stipulates that a child’s interests are of paramount importance in every matter concerning the child. I find that the interests of the school learners were in all probability adversely affected by this dispute.
AWARD
I accordingly make the following award.

(a) The first and second applicants were treated unfairly in the selection process held in respect of Post Number 391 of HRM 38 of 2015.
(c) The aforesaid selection process is declared to be irregular and in breach of the specified provisions of HRM 38 of 2015.
(d) The appointment of the second respondent is hereby set aside.
(e) The first respondent is directed to redo the selection process from the short-listing stage.

Date: 1st October 20