In the arbitration between:

S C DOLO APPLICANT

and

THE DEPARTMENT OF EDUCATION RESPONDENT

ARBITRATOR’S AWARD

1. HEARING AND REPRESENTATION

The hearing was conducted at the Department of Education Offices at 111Commissioner St Johannesburg on the 3rd and 4th of August and on the 26th September 2000. The applicant was represented by Mr. Venter an attorney in private practice. The respondent was represented by Mr. Thipe of the Gauteng Department of Education.

2. ISSUE AND POWERS

2.1 The issue to be decided on was whether the applicant was treated fairly during the recruitment process of a post that she had applied for. If it is found that the process was indeed unfair to the applicant, the applicant seeks an order setting aside the appointment of the current incumbent to the post. The respondent argues that the process of appointment was fair and that in appointing the current incumbent the respondent followed all the correct procedures, it seeks to uphold the appointment.

2.2 My power is to hear the evidence presented and the arguments advanced for either party and make a decision with regard to the appointment process of the current incumbent in relation to the unfairness of the conduct as claimed by the applicant.

2.3 I am not empowered to visit the appointment process of the current incumbent to the post per se but only as it relates to the applicant in this case. Further, should I indeed find that the applicant was created unfairly my power will extend to the point that I may order that the recruitment process be redone If however, 1 find that the process of appointment was fair in all material respects in relation to the way in which the applicant was treated I may order that the status quo will remain and the current incumbent will not be affected thereby.

3. BACKGROUND TO THE CASE

3.1 The applicant applied for a post of Deputy Principal at the school she was assigned to Her application was received, short-list &d and she was interviewed. The applicant argues that certain irregularities presented itself during the recruitment process and therefore she was not appointed to the post of Deputy Principal. Further the process of appointment as prescribed by circular 5 of 1999 was not followed and the substantive decision to appoint the current incumbent to the post above the applicant was substantively flawed.

3.2 The substantive irregularities included:

3.2.1 The respondent not applying the Employment Equity Act;

3.2.2 The allegation that applicant was prejudiced by the manner in which questions were put to her and the way in which her responses were received by members of the interview panel.

3.2.3 The allegation that all applicants for the post did not receive similar treatment during the interview.

3.2.4 The respondent not applying its mind to the matter from circular 5 of 1999.

3.3 The following procedural errors, it is argued were made:
3.3.1 The unions were not a party to the recruitment process and were not invited either;

3.3.2 The interviewing committee did not submit its recommendations to the School Governing Body (SGB);

3.3.3 The SGB did not submit its recommendations to the Department;

3.3.4 There were errors in the appointment of the selection committee members and the chairperson of the selection committee.

3.4 The respondent argues that the post was advertised the applicant applied was short-listed as a candidate and interviewed. The panel for short-listing and recruitment was properly constituted and all parties were invited to the process. The interviews were conducted, recommendation were made and a candidate was appointed.

3.5 Further that the requirements for the filling of a deputy Principal post was fulfilled, the interview panel was properly constituted the procedures of circular 5 of 1999 were followed and the legal obligations of the department were fulfilled.

4. SURVEY OF EVIDENCE PRESENTED EVIDENCE FOR THE APPLICANT

4.1 The applicant. Mrs. S C Dolo testified, that she has been working since 1969, that she acted as a Deputy Principal from 1985 to 1996 and as a principal from 1996 to 1997. She applied for the post of Deputy Principal in February of 1999 and till the shortlisting process did not have any problems.

4.2 The first error that occurred was that the district officer and union representatives were not part of the interview panel find she was thus prejudiced by their absence.
4.3 Secondly, the principal, during the questioning process would nod his head when her answers were provided thereby intimidating the applicant which happened numerous times during the interview.

4.4 Thirdly, she was asked irrelevant questions about meeting parents even though the principal knew that certain problems had been experienced in respect of this topic in the past. She felt humiliated because she taught the very parents whose children she is now teaching.

4.5 In her opinion the applicant claims that she was a better candidate than the incumbent of the post, that she had expected to be recommended and that she had more experience than the successful incumbent.

4.6 With regard to circular 5 of 1999 the applicant alleges that she was only made aware of the circular through the interventions of her representative and was thus not aware of the conditions prescribed therein.

4.7 Under cross examination the applicant stated that she was unfairly treated because of the information provided to her by member s of the interview panel.

4.8 Other reasons for the allegation was that she was asked personal questions about conflict management, whether she would be prepared to attend parents meetings and which pet name she would liked to be called by.

4.9 According to the applicant the principal knew of a problem the applicant had with regard to attending parents meetings and thus the question was of a personal nature. It was not of a personal nature perse.

4.10 It was also confirmed with the applicant that interviews for the post were held on the 13th March 1999, The applicant had consulted with her attorney after she was informed of the outcome of the interviews in an undated letter However, she was verbally told that she was not the successful candidate on the 15th March 1999, On the 6th April 1999 the applicant claimed that she had become aware of the irregularities, and not before that.

4.11 The applicant also claimed that she was informed by Mrs Morake and Mr. Mthimkulu that the incumbent was given better treatment than her, Mr. Mthimkulu, its was established, was not part of the interview panel.

4.12 The applicant also said that she was not aware of circular 5 of 1999 prior to the 12th April 1999 Circular 5 contained amongst others a dispute resolution mechanism to challenge any appointments. It was also established that the applicant had signed for the vacancy list to which circular 5 of 1999 was attached and therefore it was concluded that she should have had knowledge of its existence.

4.13 On the opinion that the applicant holds that she was better qualified than the incumbent, it was not shown that the incumbent did not fulfill the minimum requirements of the position.

4.14 On the non attendance of the unions jt was established that the unions were invited to attend the recruitment process. Their non attendance does not invalidate the process, to which the applicant agreed Furthermore their role would be as observers they are non active participants when they do decide to attend.

4.15 It was also established that the attendance of the departmental representative is subject to the request of the SGB. In this case there was nothing compelling the SGB to request a representative of the Department.

4.16 Under re-examination the applicant was tested on the warding of provision 3.2 1 (a) of circular 5 of 1999. The wording ‘shall comprise of.-” indicated to her that the process cannot go on without the presence of the persons mentioned therein, meaning the union representative and the departmental representative.

4.17 The fact that the applicant heard on the 15th March 1999 that she was not the successful candidate was according to her knowledge bas&d on rumours and she could not institute a dispute process based on such rumours. It is the evidence of the applicant that she was officially informed on the 1st April 1999 and then took action on the 6th April 1999.

4.18 Mrs Morake was the second witness for the applicant. She was a member of the SGB since 1995 and a part of the interview panel. The witness stated that the two candidates were not treated the same. meaning the applicant and the incumbent

4.19 Further, the applicant was asked questions of a personal nature that was not asked of the other candidates.

4.20 The witness also pointed out two irregularities. Firstly, that the interview and recommendation process was completed on one day and secondly that the SGB was not the one to recommend, the interview panel re commended which was an irregular step, as the SGB did not choose an interview committee.

4.21 The witness stated that in her personal opinion the applicant was the better candidate however, could not motivate that under cross-examination.

4.22 The question about (he witnesses role was addressed under cross examination. She stated that she was an ordinary member of the SGB. The respondent disagreed, saying that she had been appointed as the secretary as the previous secretary had left.

4.23 The witness confirmed that at a meeting on the 3rd March 2000 it was decided that the entire SGB would be part of the recruitment process.

4.24 According to the witness a member of the SGB, Mr Mthimkulu, was excluded from the interview process, The witness stated that Mr Media another member of the panel had stated that there cannot be two educators on the panel.

4.25 The question on the attendance of the unions and or the department representative, was clarified by the witness that Mr. Mahlatse and Mr. Modia would take the responsibility of informing them about the meeting. However, they had failed to arrive for the shortlisting meeting and the interview process.

4.26 About the interview process the witness stated that the two female candidates, namely the applicant and the incumbent in the post were asked different sets of questions from all other applicants.

4.27 Further, The process was not recorded.

4.28 The witness stated that only the principal had asked the questions that were objected to and she had elected to observe rather than take an active part in the process.

4.29 The witness stated that the decision to appoint was not that of the entire SGB as only five out of the eight members were present.

4.30 With regard to the recommendation of the SGB the witness claimed that her signature did not appear thereon and that the signature next to her name was not hers at all. It was a forgery that made it look like sie had signed the forms.

4.31 Evidence was also presented in affidavit form from the witness with specimens of her signature. That was materially different to the one that appeared on the recommendation to the department.
4.32 The third witness for the applicant was Mr. Mthimkulu who represented the teacher component on the SGB. Mr Mthimkulu stated that he was chased away from the shortlisting process by the chairperson and deputy chairperson of the SGB and the did not attend the interview process. On inquiring after this he stated that he was told a decision was taken to exclude him.

4.33 Under cross examination the witness said that Mrs. Moloisane, another member of the SGB was the secretary of the SGB and 1hat she had taken minutes of the meetings however, they were not presented. After she had left no-one had taken the minutes and this concern was raised.

4.34 The witness was also questioned on the issuing of circulars and stated that he wanted copies of the circulars governing the recruitment process. He said that since the new principal had arrived he never circulated any information. He recalled that the only time circular was distributed was on the re-deployment issue and then only selected information was distributed The witness confirmed that he had, had knowledge of circular 5 of 1999 prior to the preparatory meeting of this recruitment process.

4.35 The witness confirmed that the entire SGB would be par: of the shortlisting process however, was chased away without a valid reason being given. This was not reported to the staff or taken up with any other forum, by the witness.

4.36 At the preparatory meeting, prior to the shortlisting process, the witness slated that he had knowledge of circular 5 of 1999 however did not bring it to the attention of the meeting as he did not see a need to.

5. EVIDENCE FOR THE RESPONDENT

5.1 Mr. Ndaba, the district representative was the first witness for the respondent who said that he was called to the school once to investigate a problem, However, he knew of a general trend at the school of educators who had refused to sign circulars.
5.2 Under cross examination the witness was asked abcut the complaints received from the applicant and Mr. Mthimkulu. He stated that he was never called by Mr. Mthimkulu.

5.3 The second witness, Mr. Mashiloane, the district labour relations officer, confirmed the procedure with regard to lodging grievances pursuant to a recruitment process. The witness confirmed that the applicant did not lodge a grievance at all within the stipulated time period. If one was lodged it would have been possible to suspend the appointment of the incumbent on the position for investigation. As it stood the Department hi id followed all the prescribed procedures for appointment.

5.4 The witness confirmed that the unions must be invited and a department representative maybe requested. In this case the invitations to the unions were timeous however, they did not attend. Further a request for a department representative was not received and neither of the two could invalidate the process by their absence.

5.5 Under cross examination the date of filing the grievance was determined to be the 6th April 1999, According to the version presented by the applicant she was informed in an undated letter on the 1st April 2000. The witness was questioned as to the validity of her motivation to lodge her grievance after written notification so that she would not jeopardize her position.

5.6 It was also established that there were no exceptional circumstances as stated in 1 7 of the Record of Understanding annexed to circular 5 of 1999 to allow her to lodge her grievance out of time and that a legitimate expectation and years of service do not amount to exceptional circumstances.

5.7 It was also established that the correct procedure of informing the incumbent of her appointment had not been followed.

5.8 With regard to informing the applicants for the post that they were not successful falls within the competence of the SGB who does not have to follow any formalities.

5.9 With regard to the distribution of circular 5 of 1999 it was stated by the witness that the circular was attached to the vacancy list and the vacancy list was brought to the attention of the applicant, her signature as proof of this was already established.

5.10 Under re-examination the witness stated that it was net necessary to be informed of the outcome of the process before a grievance could be lodged as the grievance committee established would scrutinize the procedure and not the outcome for unfair conduct.

5.11 The third witness for the respondent was Mr. Mahletsi, who was the chairperson of the SGB at the time, The witness slated that it was agreed during the preparatory meeting that all the members of the SGB would take part in the recruitment process.

5.12 The witness denied that Mr. Mthimkulu was chased away from the interview process.

5.13 Mr. Makume, the former principal was the fourth witness to” the respondent Mr. Makume stated that Mr. Mthimkulu was not present at I he interviews at all and neither was an apology received.

6. CONTENTIONS FOR THE APPLICANT

6.1 The applicant contends the following:

6.1.1 That she was victimized during the process in that she was not treated fairly or in accordance with circular 5 of 1999.

6.1.2 Further, that the interview committee was not properly constituted.

6.1.3 That she was better qualified to do the job than the incumbent.

6.1.4 The principal was not objective due to previous conflict between them.

6.1.5 The procedure was not followed in that the incumbent was informed prior to the actual departmental appointment taking place.

6.1.6 Circulars relating to the appointment process, especially circular 5 of 1999, were not distributed.

6.1.7 The process of appointment could have been stopped after the lodging of the grievance on the 6th April 2000 by the applicant’s attorney.

6.1.8 The union was not present and it was expected that more than just a fax be sent. Some form of follow up should have been pursued.

6.1.9 Different questions were asked of the candidates during the interview process.

6.1.10 Mrs. Morake’s signature was falsified which indicated that there was an ulterior motive.

6.1.11 In the case of Nehawu and others v Vista UnjyersitvLC J2558/99 it was held that the delegation of powers must be properly CDnstituted between the governing body and the interview committee.

6.1.12 In Mathipa v Vista University and others TPD 13610/97 it was held that an appointment could not be ratified if the selection committee was not properly constituted.

6.1.13 The relief sought by the applicant is the material benefit with or without the post, and essentially to be placed in the same financial position.

7. CONTENTIONS FOR THE RESPONDENT

Based evidence of the witnesses the following is contended:

7.1 The respondent has complied with all the circulors in this regard especially circular 5 of 1999.

7.2 All the documents presented to the respondent to effect the appointment on the face of it is in order.

7.3 If the applicant was victimized it was due to her own fault. in that she did not attend parents meetings, which is not denied by the principal and is in fact justified, as a managerial post of the one she had applied for required her to attend those meetings therefore such a line of questioning during the interview process would not have been unfair.

7.4 Circular 5 of 1999 requires similar treatment of candidates during the recruitment process. Not the same treatment was required. The only complaint received in this regard was the phrasing of the questions.

7.5 The question as to why the applicant waited so long for take action. The interviews were held on the 13th March 1999. She was informed verbally on the 15th March 1999 that she was not successful find her action was not to lodge a grievance but to consult an attorney on the 1st April 1999.

7.6 The applicant signed for the distribution of circular 5 of 1999. Further the application forms and the vacancy list contain circular 5 of 1999 and have numerous references to it.

7.7 According to the requirements of circular 5 of 1999 the union was invited. That is all that was reasonably expected of the SGB to do and there was absolute proof of this.

7.8 The actual reason for the grievance was that the applicant felt that she was more suitably qualified based on her experience against the recommended candidate and not due to any allegation of unfair treatment.

7.9 Composition of the interview panel was in accordance with section 20(1)(i) of the Employment of Educators Act.

7.10 In Mathipa v Vista University as cited above a decision was taken not to include all members in the interview process. The facts are materially different to this case. The applicant has also not shown what prejudice she has suffered as a result of the absence of the cand dates.

7.11 On the exclusion of Mr. Mthimkulu, he knew where to complain against his exclusion from the process He did not lodge any complaints until approached by the applicant.

7.12 The SGB became the interview committee in this case due to the fact that all were invited to attend in the process. The recommendations of the interview committee then become that of the SGB itself.

7.13 The applicant did not follow the correct procedures within the time frame stated and reasons for this was not provided and no exceptional circumstances presented themselves in this case.

8. DISCUSSION OF EVIDENCE AND ARGUMENT

8.1 In discussing the evidence and argument of the parties I will start by addressing their contentions and the evidence that has been presented during the arbitration.

8.2 The applicants contention that she was victimised during the process due to the fact that the principal had nodded his head when she answered, that he knew of conflict between the applicant and the parents nevertheless asked questions about her willingness to attend parents meetings and that she was not asked exactly the same questions during the interview process.

8.3 For victimization to be established the applicant must show unjustified conduct by the interview panel that resulted in her being discriminated against, and thus not being appointed. The fact that the principal knew of conflict between the applicant and the parents does not preclude him from asking questions relating to one of her tasks had she been appointed.

8.4 This gave the applicant an opportunity to respond in unequivocal terms as to what her position would be on attending parents meetings. Had the principal made the assumption for the applicant and not asked the question, then rejected her application on that basis could also have been unfair. I do not find that there was anything untoward about asking such a question.

8.5 On the other claims that the principal had nodded his head thereby indicating disagreement with what the applicant was saying was not established. The principal denied this and other witness did not corroborate the applicant. The point must be taken to its logical end. What if indeed the principal is guilty of such conduct. Does the applicant have a legitimate grounds of complaint, for such action? Even seen in a broader light together with the other allegations of unfair treatment, cannot in my mind amount to victimisat on.
8.6 According to provision 3.8 of circular 5 of 1999 all interviewees must receive similar treatment during the interview process, read with this GUIDELINES TO DEAL APPLICATIONS FOR VACANT POSTS, the recommendations under provision 7,5 require that questioning fall within job content, description, duties and responsibilities of the advertised post.

8.7 As long as the line of questioning does not exceed these imitations it cannot automatically be unfair. The treatment of candidates must be similar and not exactly the same. It would be impossible to use the exact wording every-time a question is asked. Furthermore, the applicant must show that she was discriminated against on some basis Her allegation of unfair treatment must at least establish ulterior motive. All the applicant established was that the incumbent to the post was preferred over her This in itself does not warrant that she has a claim.

8.8 On the contention that the interview committee was not properly constituted the evidence indicates that the entire SGB was invited to participate during the process. Some members did not participate, out of their own free will or due to circumstances beyond their control. This was not challenged.

8.9 The exclusion of Mr. Mthimkulu from the process is subject to doubt to say the least The evidence indicates that there is doubt about the way in which he challenged his exclusion, if in fact this was so. What is clear is that he came forward or was approached by the applicant after she had lodged the grievance. To that date there is no evidence to indcate that he had complained to anyone. If he was excluded at the time of ihe shortlisting and interview process surely he would have at least pursued the process with his colleagues whom he was representing at the school. By his own evidence this was not done.

8.10 Further the applicant would have to show that the exclusion resulted in unfair conduct toward her and if the exclusion itself cannot be determined the allegation of exclusion cannot determine that the applicant was treated unfairly.

8.11 On the question of the presence of the unions the respondent had shown without a doubt that the obligations of the SGB had been fulfilled. Absolute proof in the form of fax transmission slips were provided showing that the unions were invited to the process. Nothing more is required.

8.12 The contention of the applicant that a further follow up to the unions is required may be courtesy however, this does not necessitate a duty to be performed which if neglected invalidates the process. The applicant who has seen the vacancy list and I assume circular 5 of 1999, must be aware of this There is also no hint from the applicant that she queried this during the interview. She cannot now rely on this to invalidate the process.

8.13 Further, the attendance of the Department Representative is only required when requested by the SGB. It was evident that no such request was made. The absence of this person therefore does not invalidate the process.

8.14 All other evidence indicates that the SGB had properly constituted the interview panel.

8.15 The applicants’ third contention that she was more suitably qualified to do the job than the incumbent does not in isolation mean that she should be employed It this were the case and every unsuccessful applicant were given the right to challenge an appointment on the basis that thoy believe they are more suitably qualified would result in forums such as these being overwhelmed by a myriad of cases. The incumbent has mot the requirements of the post, which was not challenged at all, and the SGB determined that she was more suitable. I cannot under such circumstancfes overrule their decision.

8.16 The previous conflict between the principal, at the time, and the applicant and his conduct toward her during the process has not been established. The evidence around this point was sketchy at best and not slaborated on to a sufficient degree that would indicate to me that the principal had orchestrated a plot with all other members of the SGB not to appoint the applicant.

8.17 The applicant further, failed to object to his presence during the interview, the prejudice as claimed by the applicant is not supported by tile evidence.

8.18 On the fifth contention, the information to the incumbent two days after the interview could have been nothing more than a statement that she had been recommended. This does not indicate that a procedural flaw in the process occurred, and occurred to such magnitude that would warrant an overturning of the appointment. What is evident is that the applicant was indirectly informed that she was not recommended.

8.19 The argument was advanced that she was not aware of the appointment until her notice on the 1st April 1999 stating that she was rut successful. She cannot on one hand rely on the defence that the process is flawed because the incumbent was informed prior to her appointment and on the other reject the exact piece of evidence because she did not comply vrith the time limit to lodge her grievance- These arguments stand to contradict Bach other.

8.20 With regard to circulars not being distributed. The applicants’ signature was on a list indicating that she was made aware of the vacancy list which had more than one reference to circular 5 of 1999, this is unequivocal. Further there were no extraordinary circumstances that presented itself to warrant a condonation of the time period.

8.21 The argument advanced on behalf of the applicant that her representatives intervention warranted extraordinary circumstances, that she is more suitably qualified than the incumbent, that she has more years of experience and thus a legitimate expectation to be appointed do not in themselves amount to extraordinary circumstances as these persisted prior to this expiry of the time period with her full knowledge.

8.22 On the question of the forgery / falsification of the second witness signature on the recommendation to the Department. Such a signature is wholly inoperative.

8.23 The applicant’s representative advanced an argument based on the scoring sheets of the same witness with the same signature that appears on the recommendation that the applicant scored higher in the interview. The applicant cannot on the one hand seek to uphold the signature as a falsification thereby rendering the recommendation invalid but on the other claim that applicant scored higher than the other candidates based on the scoring sheets of the same witness with the same signature that appears on the recommendation.

8.24 Even with such a patent flaw in the argument the question of the signature is not resolved The question that must be asked is but for tho falsification of the signature is the recommendation on the Face of it valid? This question however, must be asked in conjunction with the scoring sheets of the interview and who had come out as the better candidate.

8.25 The scoring sheets indicated the following:

INTERVIEWER

APPLICANT DOLO

INCUMBENTMOKOENA

1

56

112

2

64

118

3

120

69

4

129

124

5

71

126

8.26 It is clear after perusal of the candidates’ respective scores that the incumbent Ms. Mokoena outscored the applicant by approximately 109 points.

8.27 Did the Department fulfill its obligations to appoint the recommended candidate and is that candidate the better one of the two? From the recommendation and the scoring sheets an affirmative answer is provided to both questions.

9. AWARD

I hereby find that the appointment of the incumbent, Ms Mokoena was fair in terms of circular 5 of 1999 and other procedures governing the appointment that were argued and that the applicants claim of unfair conduct is without basis. I find that the process of appointment was fair in a I material respects in relation to the way in which the applicant was treated and therefore the status quo shall remain with regard to the appointment of Ms. Mokoena. The applicants’ claim is therefore dismissed.

M DOLLIE
ARBITRATOR
10 October 2000

EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD

CASE NUMBER PSES GAAR 4137 GP
APPLICANT S C DOLO
RESPONDENT DEPARTMENT OF EDUCATION GP
NATURE APPOINTMENT / FAIRNESS
ARBITRATOR M DOLLIE
DATE OF ARBITRATION 3, 4 AUGUST & 26 SEPTEMBER 2000
VENUE JOHANNESBURG

REPRESENTATION:

APPLICANT MR VENTER
RESPONDENT MR THIPE
AWARD:

I hereby find that the appointment of the incumbent, Ms Mokoena was fair in terms of circular 5 of 1999 and other procedures governing the appointment that were argued and that the applicants claim of unfair conduct is without basis. I find that the process of appointment was fair in a I material respects in relation to the way in which the applicant was treated and therefore the status quo shall remain with regard to the appointment of Ms. Mokoena. The applicants’ claim is therefore dismissed.

DATE OF AWARD 10 OCTOBER 2000