In the arbitration between:

D S GOKUL APPLICANT

and

DEPARTMENT OF EDUCATION RESPONDENT

ARBITRATION AWARD

1 . BACKGROUND

.1 Following interviews on 09 September 1998, the Staff Selection Committee (SSC) of Millview Primary School nominated the Applicant as the preferred candidate for appointment to the post of Level 4 principal of the school (Post 938). The Applicant signed acceptance of the nomination on 10 September 1998. The Governing Body ratified the nomination on 17 September 1998.

.2 The members of the SSC were as follows : Mr A Pithamber (Chairperson), Mr R Ranganthan and Mr Naicker. There was a union observer, Mr Richards.

.3 Based on a report by the department (Mr Avidi, SME) that there were irregularities in the selection and nomination process, the Dispute Resolution Committee directed that the nomination be set aside and the interview phase be redone without the Applicant. The Applicant was however erroneously invited to the interviews. The second SSC was obviously aware of the controversy and allegations surrounding the Applicant – these issues were discussed in governing body meetings, the new SSC had members from the original SSC and the SEM sat on the new SSC. It follows therefore that the assessment of the Applicant in the second interview was probably prejudiced by the allegations. The new SSC nominated Mr Naidoo, who had been ranked second during the first process. The department however has not made any formal appointment to the post.

2 . ISSUES TO BE DECIDED

.1 I am to determine whether the department has established the alleged irregularities and if so, whether they warranted setting aside the first nomination of the Governing Body.

.2 If I find in favour of the Applicant, I am to determine whether I have the power to grant the relief sought, namely to direct the department to confirm his appointment and to pay him the difference in remuneration he would have received had he commenced duties in the disputed post.

3 . EVIDENCE AND ARGUMENT

.1 Before I proceed to set out the evidence I must record that the department led no witnesses, either to explain the various documents it handed up or to testify regarding the alleged irregularities. My notes indicate that I warned the department on three occasions during the proceedings about the risks and possible consequences of not using witnesses in this matter, especially since there was a material dispute of fact regarding the alleged irregularities. The department’s attitude was that their documents, even without confirming witnesses thereto, adequately established the irregularities.

.2 The department began and its representative made the following statement. She contended that the process of selecting the Applicant was fatally irregular because :

Although the Applicant’s name appears on the EC4 shortlist from the department’s possession, the SSC had informed it that they had all signed a different shortlist which did not contain the name of the Applicant.
The EC4 on hand was not “authentic” because it had only the signature of Pithamber, and not the other members and observer and is not dated. Further, to be valid, all forms must be signed by all the members and the observer. I could not find any specific or express directive in the manual on this point but all forms have a clear signature section for each member and observer at the bottom of the form.
Mr Pithamber misled the members regarding the “post status” of the Applicant. The department referred to various letters and minutes of meetings in regard to this point.
The EC3 – the CV score – reflects alterations which changed the Applicant’s total score from 27 to 31. An examination of the document confirms this. However there is also the clear signature of Pithamber next to each alteration and the signatures of Pithamber, Runganathan and the observer in the signature section at the bottom of the document.
The Applicant was asked to sign the acceptance of nomination form (EC7) before the nomination had been ratified by the Governing Body. The department referred to clause 10(1) and (2) of the relevant promotions policy resolution 11 of 1997 (the manual) which states that :

“The recommendations of the SSC in preference order for each post must be ratified at a meeting of the Governing Body. The Governing Body will thereafter offer a nomination to the first candidate who will accept or decline the nomination in writing on the prescribed form (EC7)”.
.3 Mr A Pithamber testified on behalf of the Applicant. He is a fitter and turner. He testified that he was not an acquaintance or friend of the Applicant. His only contact with the Applicant was when he phoned the short-listed candidates to attend the interviews, during the interview and when he phoned to inform the Applicant of the nomination. He did this in his capacity as the chairperson of the SSC and with the concurrence of the SSC.

.4 It was his first time sitting on a SSC and, in preparation for it, the department sent him to a brief workshop.

.5 The SSC used Mr Pillay, the school’s secretary, to act as administrative secretary for the SSC because he had access to filing cabinets to keep the documents used in the process. The SSC had access to the documents and forms used in the process only during the SSC meetings. At the end of the meetings, Mr Pillay would take possession of all documents and keep them until the next meeting. It was Mr Pillay’s function to complete and fill in all documents during the meetings and in accordance with the instructions of the meeting. It was also his function to pass the documents around for the members to sign. If a document did not contain the relevant signatures at the bottom of the form it was because Pillay had failed or forgotten to get all the SSC members to sign during the meeting.

.6 The short-listing process took place over a number of after-work evenings. On one or two evenings, a member failed to attend, but those in attendance proceeded with the work because they had over 200 CV’s to assess for the shortlist. He would read out a CV and the SSC scored each one in that way.

.7 He agreed that the EC4 form handed up was not the original formal shortlist and that the Applicant had not been included in it. A draft shortlist of about 20 candidates was first compiled. From this list the SSC then compiled for formal shortlist of about 8 or 12. However when he phoned the candidates on the formal list to invite them to the interviews, many said they had already accepted posts elsewhere. He substituted those who were no longer available with names from the draft list, and accordingly made a new formal list. When asked if the draft list had included Gokul’s name he said: “Yes, it must have because list two came from list one”. He was unable to say that all members of the SSC were present when the second formal list was drawn up. However he implied that he could not have fraudulently and on his own drawn up the list because S Pillay had drawn up all documents and thus would have noticed anything irregular. He did not take notice or check whether all members had signed the documents because that was the function of S Pillay and he assumed Pillay would get the other members to sign after him.

.8 Before the interviews the SSC met and decided on what type of candidate they would look for, namely a mixture of experience, qualifications and one that was community driven. They included the latter requirement because the school served a poor community. Pithamber said :

.9 “After (the Applicant) left the interview room we all had smiles on our faces, including the union observer, because it was clear that this was the person we wanted”.

.10 They discussed the matter and everyone agreed that he was the best candidate. They were particularly impressed by his community involvement which included feedings schemes in schools and that he was result oriented. They felt their school needed someone like the Applicant because the school served a poor community. They gave him an interview score of 44.

.11 After they scored each candidate’s interview, the SSC looked up the scores they had given the candidate’s CV. They wanted to see whether their initial judgement of the candidate had been correct. When they looked at the Applicant’s CV score, they saw they had given him 27. According to Pithamber the SSC discussed the issue and decided to increase the CV score to 31 to create a balance. The intention was not dishonest or to mislead. On the contrary the alterations were not hidden. They are clearly visible on the forms and his signature is appended next to each alteration. At the time, it was perceived as sufficient for only the chairperson to sign the alterations. Pithamber said :

“At the time we decided its enough. We didn’t have in mind that there would be a dispute. The house decided and we did things the way we thought was okay then”.

.12 Because candidates were fast becoming unavailable, as noted when Pithamber phoned the short-listed candidates for interviews, and because it would be some days before they could set up a ratification meeting, the SSC decided to get the Applicant to sign the acceptance form immediately to avoid losing him. There was a rule that if a candidate had already signed acceptance of a nomination, he/she could not accept another post.

.13 They did not see a conflict between getting the Applicant to sign the acceptance form before the ratification meeting because the SSC was also the Governing Body. Pithamber said : “We had decided that we wanted him and would ratify it”. At the ratification meeting held on 17 September 1998, the nomination was ratified.

.14 Some time after the process Pillay contacted him and the other members. It was obvious from his conversation that he had been looking through the records. Pithamber could not think why Pillay told them that according to the records the Applicant was an acting principal, and not a principal. After some discussion the members decided that, even it if was so, he was still their choice.

.15 The department conducted an investigation and concluded there were the irregularities in question. According to Pithamber, the investigator, Mr Avidi, failed to listen to his explanations regarding the alleged irregularities and his attitude in all meetings was dictatorial.

.16 Except for Pithamber, the remaining members of the SSC and observer vacillated between standing by their original decision and conceding that there were irregularities that justified the setting aside of the Applicant’s nomination.

.17 The Applicant testified to the following:

At the time of his application he was an HOD and had been acting principal from 09 October 1995 to 10 August 1998. At the time of his interview on 09 September 1998, he had been appointed as a level 3 principal from 11 August 1998.
The reversal of his nomination affected him in that it caused him great embarrassment amongst his colleagues and community because he reported his acceptance of the nomination to them and actually left his school to take up the appointment at Millview. He was supposed to commence duties on 01 October 1998 at Millview. The loss of the post meant a difference of R1 100,00 per month in remuneration.
4 . ANALYSIS OF EVIDENCE AND ARGUMENT

.1 The onus is on the department to establish the alleged irregularities and that the irregularities are sufficient to invalidate the process.

.2 I also took into consideration the following when assessing the conduct of the SSC:

The various clauses which set out how a SSC and Governing Body conduct a selection process are guidelines and cannot be approached as a mechanical checklist.
In most cases, including the present one, the members of the SSC and Governing Body are mostly lay people without administrative skills or the technical zeal of a bureaucrat. Given this, mistakes and procedural omissions may be made. In other words one should be pragmatic and not be overly technical and bureaucratic when assessing their conduct. In the absence of unreasonable and wilful disregard of the guidelines which leads the arbitrator to draw an inference of mala fides, the arbitrator should be hesitant to interfere with the way the SSC conducted a selection process and exercised its discretion.
I found Pithamber a credible and plausible witness, and I found nothing improbable in his version of the factual events. The department led no witnesses to contradict his version of events. I will therefore accept his version regarding the factual side of this case.
.3 The Department has not established that there was an irregularity in the short-listing process. Pithamber explained how the Applicant came to be on the shortlist and I heard no response from the department contending the process described by him was irregular.

.4 An examination of the minutes of the ratification meeting, namely paragraph 2 thereof, supports Pithamber’s version regarding the shortlist.

.5 I found it strange that the complainant SSC members only remembered during the investigation, weeks after the interviews, that they had not short-listed the Applicant. In my view they were aware of and participated in his short-listing, or else they would have raised the objection at or at least made mention of the issue at the interview stage. It is also improbable that no member, beside Pithamber, looked at the shortlist just prior to the interviews or during the interviews.

.6 The complainant SSC members did not object to the other names on the shortlist. A perusal of the scores of these candidates indicates that the Applicant qualified for an interview in any event because other candidates with a score of 27 were short-listed and invited to the interview.

.7 In light of the fact that I have found that the Applicant was correctly and with the consensus of the SSC short-listed, it would be grossly unfair and overly technical to declare his short-listing to be invalid just because the form does not contain the signature of all the members. Pithamber has given an explanation as to how the signatures were omitted. Further, if we use the logic of the department, then the second interview which it stands by and claims to be valid, would also be invalid since the persons interviewed in the second process were obviously taken from this unsigned list.

.8 The Department has produced no reliable evidence that Pithamber misled the members regarding the “post status” of the Applicant. It led no witness regarding this dispute of fact and the letters and minutes it referred me to contain contradictory statements regarding what Pithamber allegedly said. Some refer to “post status”, others to the Applicant’s years of experience as a principal and others to whether he was called a principal or an acting principal. In my view paragraph 3 of the minutes of the ratification meeting clearly negates the allegations and reflects that the SSC must have been aware at all material times of the position of the application as set out in the minutes and in the Applicant’s evidence below. The minutes do not reflect any surprise or objection or comment questioning the status of the Applicant as read out at the meeting. There is also no evidence that the Applicant was not qualified or that he was inexperienced for the job. At the time, he had been in the profession for 22 years, had 10 years experience as an HOD, had been acting principal since 1995 and had been appointed principal at the time of the interview.

.9 Regarding the alterations, it is clear from Pithamber’s evidence that the whole SSC looked at the CV scores and made a decision to alter them after they had already scored his interview and after their decision to nominate the Applicant as their preferred candidate. It is also clear that they never intended to misled the Governing Body or the department – the alterations are clearly visible and signed. Accordingly there was no mala fides in their action and their actions played no role in the short-listing, interviews, interview scores and ranking, and therefore cannot invalidate the nomination of the Applicant.

.10 The whole point of the selection process is to enable the SSC to identify the person they would most like to take the post on offer and, on the evidence before me, this is what they were accomplishing in good faith.

.11 I do not accept that the signing of the EC7 form before the ratification meeting invalidated the nomination. It was unprocedural, but only in its timing and there is no evidence that it bound the Governing Body, affecting its decision or fettered its discretion as to whether to accept the decision of the SSC. The Governing Body ratified the decision of the SSC and, as the Applicant contended, the word “ratify” embraces “ex post facto approval”. Pithamber’s explanation as to why they followed this procedure was understandable. They did not want to lose the Applicant and there would be a delay before the ratification meeting. In my view, the validity of the acceptance form would only become an issue if the Governing Body had not ratified the decision. In those circumstances the Applicant would not have any grounds to rely on the acceptance form.

.12 My conclusion is that while the SSC did not always follow the procedures as strictly set down by the manual, Pithamber provided acceptable explanations for the deviations and showed that there were no ulterior motives in the actions of the SSC during the process. I also saw no evidence that the deviations were so gross as to render the entire process fatally defective. My finding is that there was therefore no reason to set aside the process and declare the nomination of the Applicant by the SSC and Governing Body invalid.

.13 The Applicant contended that if I found in his favour, I have the power to direct the department to confirm his appointment. He referred to the case of Douglas Hoërskool en andere v Die Premier van die Noord-Kaap Provinsiale Regering Case No 989 dated 03/08/99. In this case the Court found that there was no reason to reject the recommendation of the Governing Body and made the appointment on behalf of the department. In view of my finding and the fact that no person has been appointed to the post, there is no practical reason why I should not follow this case.

.14 The Applicant also contended that if I reinstate him in the position he should be compensated for the difference in remuneration from the 01 October 1998. In terms of the minutes of the ratification meeting he was meant to assume duty on 01 October 1998.

.15 The Applicant also requested that I award him costs in this matter. However I am not convinced that the department’s actions in defending the action were frivolous or vexatious. It had an arguable case.

5 . AWARD

.1 The nomination of the Applicant by the SSC and Governing Body was valid and there is no reason to reject their nominations.

.2 The Department is directed to appoint the Applicant in post 938, being that of principal of Millview Primary School, effective from 01 October 1998;

.3 In terms of paragraph 5.2, the Department is directed to compensate the Applicant for the difference in salary, being R1 100,00 per month, from the period 01 October 1998 to the date he assumes duty.

.4 There is no order as to costs.

BENITA WHITCHER
ARBITRATOR
DATE: 21 MAY 2001

EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD

CASE NUMBER PSES 251 KZN
APPLICANT D S GOKUL
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPOINTMENT
ARBITRATOR B WHITCHER
DATE OF ARBITRATION 20 APRIL 2001
VENUE DURBAN

REPRESENTATION:

APPLICANT ADV I MOODLEY
RESPONDENT MS NG MAPHUMULO

AWARD:

1. The nomination of the Applicant by the SSC and Governing Body was valid and there is no reason to reject their nominations.

2. The Department is directed to appoint the Applicant in post 938, being that of principal of Millview Primary School, effective from 01 October 1998;

3. In terms of paragraph 2, the Department is directed to compensate the Applicant for the difference in salary, being R1 100,00 per month, from the period 01 October 1998 to the date he assumes duty.

4. There is no order as to costs.

DATE OF AWARD 21 MAY 2001