In the arbitration between:

SADTU obo MZOMUSHA PRIMARY SCHOOL APPLICANT

and

DEPARTMENT OF EDUCATION RESPONDENT

ARBITRATION AWARD

1 . REPRESENTATION AND VENUE

.1 The arbitration took place at Imssa offices, Durban on 03/04/2000.

.2 Mr Nati Ngcobo represented the Department. Mr Y Ramcheron represented the Union.

.3 The arbitration concerned the non-appointment of the grievant in the 1997 Promotions.

2 . TERMS OF REFERENCE
.1 The issue came before me in terms of the Education Labour Relations Council Agreement between the Department and the Unions whereby certain disputes were referred to a process of expedited Conciliation and Arbitration.

.2 The arbitration concerned the filing of a principalship post at Mzomusha Primary School.

.3 I am given the power to determine the procedure to be followed at the arbitration and to make an appropriate award including appointment with compensation, with or without retrospective effect.

3 . THE DEPARTMENT SUBMISSION

The Department contended that the post of principal at Mzomusha Primary is still vacant. The Governing Body had made an irregular nomination and as such the Department was unable to effect the appointment. Despite numerous instructions to regularise the nomination, the Governing Body has failed to do so. The Department requested that the legitimate candidate in terms of the Promotion Process be identified and appointed as the principal with effect from the date of the arbitration.

4 . THE UNION SUBMISSION

The Union contended that the Governing Body did not follow the prescribed procedure in the Promotions Manual. The Governing Body nominated the candidate ranked sixth on the list. The post of principal is still vacant. The Union requested that the legitimate candidate in terms of the Promotion Process be identified and appointed as the principal.

5 . NON-DISPUTED ISSUES
The following facts were common cause:

.1 Both parties agreed that the Department advertised the post in 1997.

.2 The process was dealt with in terms of the procedure and promotion manual.

.3 A selection committee was appointed compromising of 5 members of the governing body.

.4 All the applications that were received were duly processed in terms of the promotion process.

.5 The selection committee shortlisted and conducted interviews.

.6 The selection committee nominated for appointment Miss June Rose Bhengu, an educator in the same school. Exhibit “A” the EC6 form has been tendered as evidence of this.

.7 The ranked preference order in the EC6 was as follows:

.1 Miss Bhengu was ranked number 1;

.2 N H Snyman was 2;

.3 N N Dlamini was 3;

.4 M G Ntombela was 4;

.5 M E Ngcobo was 5;

.6 T P Ngcobo was 6;

.7 N P Ntshangase was 7 and

.8 T J Khondowe was 8.

.8 The Governing Body ratified the recommendation as confirmed in the EC6. The ratification took place on the 24th of May 1998.

.9 On the 23rd of June 1998 a dispute was lodged regarding the lack of adequate notice given to the shortlisted applicants to attend the interview.

.10 On the 24th of June 1998 the position of principal was offered to Ms Bhengu who accepted the nomination.

.11 The Governing Body then submitted the document to the Department for appointment.

.12 Owing to the large number of disputes received for the whole Province this dispute was not finalised at the DRC level in 1998.

.13 In October 1999 at the DRC level the dispute was formally withdrawn by SADTU.

.14 At that DRC meeting, it was decided that the selection committee will nominate another candidate from the EC6 list.

.15 The Department could not appointment a candidate from the EC6 because the SGB had to submit a new nomination.

.16 In the interim Ms Bhengu had retired in June 1999.

.17 The SGB nominated Mr TP Ngcobo who was ranked number 6 on the EC6 form.

.18 Mr TP Ngcobo accepted the nomination on the 10th of November 1999.

.19 When the form was submitted to the Department, the Department could not effect the appointment because the SGB had not followed the prescribed procedure. The SGB had bypassed higher-ranking candidates in nominating Mr TP Ngcobo for appointment.

.20 The Department contended that this was incorrect and unprocedural in terms of the Promotion Manual.

.21 The Department then met with the SGB and requested them to follow the procedure stipulated in the procedure manual and nominate in terms of the prescribed process i.e. the person next in line (next ranked to Ms Bhengu).

.22 The SGB refused to reconsider its nomination.

.23 It was pointed out that the composition of the SGB has changed since 1997.

.24 Both parties confirmed that the order they are seeking is that the position should be filled in terms of the prescribed procedure in the procedure manual.

.25 According to their understanding of the manual the next ranked candidate after Ms Bhengu must be appointed.

.26 The arbitrator was requested to order that the Department appoint the next ranked person next for the post of principal at Mzomusha Primary School.
.27 It was pointed out that the original dispute was not specifically Ms Bhengu or in opposition to her appointment but related to the short notice given to candidates called to the interview.

6 . ASSESSMENT OF EVIDENCE AND ARGUMENT

.1 IDENTIFYING THE LEGITIMATE CANDIDATE

Having scrutinized the 1997KZN School Based Posts Promotions Manual and documents tendered I find that:

.1 From the exhibits submitted and the submissions made by both the Department and the Union it is clear that the Governing Body has followed the stipulated process.

.2 The shortlisting, the interview and the nomination list are regular and proper.

.3 The nomination list was then ratified by the SGB as a whole on the 24th of May 1998.

.4 Up to that stage the process is regular and procedurally correct.

.5 The difficulty arises as a result of the number one candidate being no longer available to occupy the post.

.6 Section 16(2) of the KZN Department of Education School Based Posts Procedures and Practice Manual dated 21, 22 October 1997 states:
“Names of nominated candidates must be recorded on form EC6 in order of preference. The SGB must ratify the list of nominations”.

.7 Section 22 of the KZN Department of Education School Based Posts Procedures and Practice Manual dated 21, 22 October 1997 states:
“22.1 The SGB must make an offer of nomination to the first candidate by…

22.2 The first candidate must respond by…

22.3 Should the first candidate decline the nomination, a nomination must be made to the second candidate by…

22.4 The second candidate must respond by…

22.5 Should the second candidate also decline the nomination, a nomination must be made to the third candidate by…

22.6 The third candidate must respond by…”

.8 The word “must” indicates that the SGB has no discretion in selecting the next candidate to whom the offer can be made. The SGB is compelled to follow the rank order of preference in the EC6.

.9 In terms of section 22(1) to 22(6) of the Promotion Manual the SGB ought to have nominated the next available candidate in line with the preferential rank order compiled and ratified by them.

.10 The fact that the SGB had ranked and ratified the EC6 confirms that, that is the preference order which they have selected for themselves.

.11 Since the SGB is the entity that made this preference list, it cannot now vary, change or disregard that list.

.12 I find that the selection of Ngcobo who is ranked 6 to be irregular.

.13 I find that the EC6 is a valid ranked list and the SGB is bound to follow that list.

.14 The order that the Department proceed and offer the post to the next available candidate from the EC6 list is rank order.

.15 The Department is ordered to offer the post to candidate number 2, whom failing candidate number 3, whom failing candidate number 4 and so on.

.16 Next available candidate should be appointed by the Department to the post of principal.

.17 Insofar as the authority for the Department to make this appointment, I rely on the following contentions.

.2 AUTHORITY TO MAKE THE APPOINTMENT

The authority of the arbitrator to order and the Department to implement the appointment of a candidate rests on 5 premises:

.1 By virtue of the ELRC Agreement all parties to the ELRC including the Department are bound by the outcome of the arbitration as it is an ELRC process. The arbitrator by virtue of the terms of reference is competent to make an appointment if he deems this to be appropriate.
.2 The Governing Body is empowered by legislation to recommend the candidate for appointment. Section 6(3)(a) of the Employment of Educators Act (EEA) provides that “subject to S(3)(d), any promotion may only be made on the recommendation of the Governing Body”.

.3 The Department makes the appointment. Where the Governing Body refuses to make the appointment or makes an irregular appointment it is in breach of its responsibility to the Department.

.4 There exists a tripartite relationship between the Governing Body, the Department and educator. Selection and recruitment of staff is the responsibility of the employer.

.5 The function has been delegated to the Staff Selection Committee. The Staff Selection Committee is obliged to comply with the same standards of administrative fairness that binds the Department.

.6 Where the Staff Selection Committee or Governing Body does not adhere to these standards and makes irregular nominations, the Department is obliged to reject these nominations, call upon the Governing Body to comply with the procedure and make a valid nomination. See S 6(3)(b)(c) EEA. Section 6(3)(c) EEA states that the Governing Body shall make another recommendation. This is peremptory and no refusal is contemplated. Should the Governing Body still refuse, the Department will be entitled to regularise the situation without the assistance of the Governing Body and make the appointment.

.7 In this case the Department has no more than one occasion pointed out the irregularities of the Governing Body. The Dispute Resolution Committee has ruled on the issue to no avail. It is irreconcilable that the party can breach its responsibilities and frustrate the rectification of that breach by claiming a statutory preserve to perform that action. It is illogical and a travesty for the Governing Body to claim the sole right to make a recommendation, then make an irregular recommendation, refuse to correct the irregularity and still claim it is the only entity that can make the recommendation.

.8 It is trite law that you cannot benefit from your own default. Accordingly to the basis that the Governing Body has breached its responsibilities and failed to rectify the same, I find that the Department is competent to regularise the defect and make the appointment. I find that the arbitrator has the jurisdiction to order the Department to make an appointment without securing the recommendation of an errant Governing Body.

.9 On the basis that the Governing Body has defaulted and breached its responsibility, it is bound by the arbitrator’s decision.

.10 The interests of the employees (applicants) also have to be considered. It is inconsistent for an employee’s promotion to be denied or delayed because the Staff Selection Committee refuses to comply with fair and agreed procedure. The tripartite nature of the relationship will permit a limitation on the rights of the Governing Body insofar it unfairly prejudices the rights of the educator. The Governing Bodies statutory rights are not absolute but limited by the rights of the educator to a fair promotion process, fair administrative action and the expeditious processing of documents. The extent to which the Governing Body violates these rights will determine the extent to which the rights of the Governing Body are limited. The amendment of the Educators Employment Act no 48/1999 confirms that the right to make a recommendation is not absolute.

.11 It is not a defence for the employer to hide behind the delegation of authorities. The ultimate responsibility lies with the employer and the aggrieved employee resource is against the Department and not the Governing Body. It is for the Department to ensure that the Staff Selection Committee is able to accomplish its task with fairness, competence and diligence. Should the Department delegate this function to the Staff Selection Committee, which it knows is incapable of meeting the required standards, it is my considered view that the Department will still be liable.

.12 The amendment of the Educators Employment Act no 48/1999 provides that where the Governing Body refuses to make a recommendation, the Department may make the appointment without such a recommendation provided 2 months notice is given. There has been much debate as to whether the amendment can apply retrospectively. Generally legislation does not have retrospective effect unless it is expressly stated. Wherever an amendment is introduced to rectify a defect in prior legislation, it can be contended that the sole purpose of the amendment is to cure the defect and if it has no retrospective effect the reason for its promulgation is defeated.

.13 The main reason this Amendment was enacted was to overcome the difficulties created in the 1997 Promotions Process where the Governing Bodies have refused to make the recommendation. The 1999 process does not envisage the recommendation of the candidate but of a preference list. Accordingly if the amendment was not retrospectively the impasse in the 1997 process will remain with no way of rectifying them.

.14 Further prior to the amendment there were limited options to deal with the problem. The advent of the Amendment merely provided other options. It is argued that the amendment is supplementary and does not negate or deny the Governing Body any of its rights. The Governing Body still has the rights to make the recommendation. The Amendment merely permits a way forward where the Governing Body decides not to enforce its rights to make the recommendation.

.15 In the case of Minister of Safety and Security v Molutsi 1994 (4) SA 72 the court held that unless the language used plainly manifested in express terms or by clear implication a contrary intention, a statute divesting vested rights was to be construed as prospective and a statute merely procedural was to be construed retrospective. It is contended that the amendment does not divest the Governing Body of the right to make a recommendation. It merely stipulates an alternate procedure where the Governing Body refuses to exercise its rights. It is contended that the amendment is procedural in nature.

.16 Further, even though the promotion process happened in 1997, the finalisation of that process is still current and happening after the advent of the Amendment. The ratification of the non-recommendation is not happening prior to the advent of the Amendment, but at the current time the post of the Amendment. Therefore the issue of retrospectivity does not arise at all. The Department is enforcing a remedy that is currently available to it, in respect of a dispute that is currently outstanding, even though the original process was conducted in 1997.

.17 Accordingly I conclude that the Department does not have authority to make the appointment without the recommendation of the recalcitrant Governing Body.

.3 I conclude that the Department does not have the authority to enforce the arbitrator’s decision. I further conclude that notice in excess of 2 months has been given to the Governing Body by the relevant structures of the Department.

.4 DATE OF APPOINTMENT

In view of the fact that the Department cannot be blamed for the recalcitrance of the SGB, the effective date of the appointment and for payment shall be the date of this award.

7 . DECISION

.1 I find the Governing Body has acted irregularly in nominating TP Ngcobo.

.2 I hereby order the DX to appoint the next available candidate on the ranked EC6 list to the post of principal of Mzomusha Primary School post number 940.

EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD

CASE NUMBER PSES KZN
APPLICANT MZOMUSHA PRIMARY SCHOOL
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPOINTMENT
ARBITRATOR RAJAH NAIDOO
DATE OF ARBITRATION 25 AUGUST 2000
VENUE DURBAN

REPRESENTATION:

APPLICANT MR Y RAMCHERON
RESPONDENT MR NATI NGCOBO
AWARD:

1 I find the Governing Body has acted irregularly in nominating TP Ngcobo.

2 I hereby order the DX to appoint the next available candidate on the ranked EC6 list to the post of principal of Mzomusha Primary School post number 940.

DATE OF AWARD 15 SEPTEMBER 2000