In the matter between

David Arnolds applicant

And

Department of Education: Western Cape first respondent

Julius Williams second respondent

ARBITRATOR: Bella Goldman
HEARD: 7 May 2019, 3 and 4 July 2019, 22 and 23 August 2019 and 4 December 2019
DELIVERED: 22 January

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. The arbitration hearing was held at in Paarl at offices of the respondent on 7 May, 3 and 4 July 2019, 22 and 23 August 2019 and 4 December 2019. Advocate Killivan represented the applicant. Ms Athne Willemse, labour relations officer represented the first respondent. Mr Kenny Williams, SADTU, union official represented the second respondent. On 3 and 4 July 2019 Ms Stephanie Marks acted as interpreter for the parties, thereafter Mr Michael Venter acted as interpreter for the parties. The proceedings were recorded. The applicant testified in support of his case and called one witness, Clarisse Wrentia Jones, educator and member of SGB interviewing panel. The respondent called one witnesses, Ferdinand Galant, circuit manager. The second respondent, Julius Williams did not testify.
2. The applicant and first respondent submitted bundle of documents which were agreed as what they purported to be. The applicant’s bundles were marked ‘A’, numbered 1 to 10A and ‘A1’ numbered 1 to 8. The first respondent’s bundle was marked ‘B’ and numbered 1 to 55.
3. It was agreed that closing arguments would be submitted in writing by 16 December 2019.

ISSUE TO BE DETERMINED

4. I have to determine whether or not the applicant was subjected to an unfair labour practice relating to promotion in terms of the Labour Relations Act 66 of 1995 as amended (LRA) and if he was, then the relief to award.

BACKGROUND TO THE ISSUE

5. The applicant is employed at Hillcrest Primary School in Wellington as deputy principal a post level 3 positions and has been since April 2018 having acted as deputy principal from 2017. He has been an educator for 31 years and employed at the school for 21 years.
6. The applicant applied for the advertised post of principal in May of 2018, he was shortlisted and interviewed on August 2018. He was the third recommended candidate. The second respondent was the nominated candidate and was appointed to the position on 23 November 2018 with effect from 11 April 2019. There were five short listed candidate; three were interviewed; the second respondent, Julius Colin Williams, principal of Pauw Gedenk Primary School respondent, Ms M Cloete, head of department at another school and the applicant. Their respective scores emanating from the interview questions were 73%, 62% and 53%.
7. The applicant claims that the recruitment and selection process was conducted in an unfair manner as a result of which he was subjected to an unfair labour practice: promotion. The applicant is in terms of relief seeking that the process of advertising, shortlisting and interviewing be repeated and that Dr Galant (Galant), the official involved in the process at hand be exempted from the processes irrespective of the fact the final outcome may be the same.
8. He applicant claimed that Galant interfered unfairly in the process so as to secure the appointment of the second respondent. The applicant claimed that the alleged interference began from the shortlisting process on the basis that he instructed the SGB to allocate an extra 10 points to existing principals and that this was fair and contrary to the prescripts. He also claimed that during the process Galant inter alia threatened and bullied the members of the SGB by conduct which will be amplified below into signing off the nomination of the second respondent.
9. The respondent denied the existence of any improper conduct and / or interference by the departmental representative, Dr F Galant. The respondent claimed that process was overseen by union representative who made no objections to the process.
10. The chronological order of events was:
(i) The position was advertised in May 2018
(ii) Shortlisting meeting held on 16 August 2019
(iii) Interview meeting held on 28 August 2018
(iv) Meeting 19 September 2019 to discuss results CBA / psychometric test of the second respondent. Panel voted to repeat the process
(v) Ratification meeting held on 25 September 208
(vi) Letter to department from SGB outlining their concerns 1 November 2018
(vii) Second respondent appointed on 23 November 2018 with effect from 11 April 2018
11. The SGB members of the interviewing panel were: Mr W Williams; chairperson, Mr C Bailey deputy chairperson; Ms Stevens, treasurer; Ms Le Roux; Ms Bailey ;Ms Kriel, secretary; Mr Abrahams, Mr de Jongh, principal; Dr Galant, WCED representative and Ms Krynauw, SAOU representative

SURVEY OF THE EVIDENCE AND ARGUMENT

12. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.

Applicant’s Evidence

13. The evidence of the applicant was that he was interviewed for the position on 28 August 2019, on his arrival he was instructed to compile a thirty minute power point presentation on interventions to be recommended for underperformance of learners. Before he started his presentation he asked to be to be reminded of the time which elapsed as he was not wearing a watch. He was informed after 10 minutes passed but not thereafter, despite asking how much time he had left. He did not finish his presentation in time and scored no points for that question. It was put to him in cross examination that he was informed of when he had ten minutes left; he stuck to his version.
14. About a week after his interview, Charisse Jones a colleague and a member of the SGB interviewing committee informed him of irregularities which had place in the interviewing process. Jones scored him full marks for the role play question. At which point Galant asked her ‘whether there was something on between her and the applicant?’ implying that she only scored him highly as a result of an improper relationship they were having. He asked her to reconsider the score she allocated for the question. The applicant told the Jones to inform her husband of this incident and he reported the incident to the department but received no response.
15. Given that the applicant’s evidence is hearsay and that it corroborates that of his witness I will set out the evidence when recounting the testimony of Charisse Jones.
16. The evidence of Charisse Renchia Jones was that the panel had agreed on certain short-listing criteria, the points of which came to 125. On the day of shortlisting Ms Kriel, the secretary of the panel informed the panel that that Galant added an extra 10 points to candidates who were existing principals on the basis that a candidate who is already a principal would be more competent and experienced. Five candidates were shortlisted.
17. At the interview Galant told them that two of the short listed candidates had dropped out of the process leaving three candidates. The three candidates were the applicant, the second respondent, a principal of another school and Ms Cloete a departmental head at another school, no proof was provided of their withdrawal.
18. The second respondent performed well at the interview, it appeared as if he had previously had sight of the questions and model answers as his answers were in the same sequence and of the same content as the model answers. After he left, which was before either the applicant or Cloete were interviewed Galant said ‘we have perfect candidate I can see he know his stuff’.
19. Cloete had a good interview; after she left, Galant referred to her as being conceited and said that in any event she had another interview for a position of principal at another school on following day.
20. Before the applicant came into the interviewing room Galant told the panel that he would not consider or give permission for the appointment of the applicant as he had in the same year been promoted from the position of head of department, HOD to the position of a deputy head. He said he thought that Arnolds should spread his wings elsewhere and that there was no reason as to why the applicant could not teach at another school.

21. When it came to scoring; each member of the committee gave their scores for each question for each candidate, the committee then discussed their scores. When Jones allocated 10 points to the applicant for his role play, Galant stopped the process and said ‘it seems to me that you and Arnolds have something between you’ implying an improper relationship and that this would appear to be the reason she scored him so highly. She was stunned by this comment and she ceased making any further input to the process and reduced her marks for that question by two. Only the marks of the applicant were changed.
22. After Galant made this comment the mood of the panel changed and Ms Kriel suggested that process could be repeated. Galant did not agree; he said that they had found the right man for the position, meaning the second respondent who was sent for CBA / psychometric testing.
23. On 19 September 2018 the committee met to discuss the results of the results of the second respondent’s CBA; the results indicated a number of problematic areas, one of which was poor interpersonal skills. Four of the seven members of the panel voted to have the process repeated. Galant said that that he would not, and could not support such a proposal as there must be a very good reason for such motivation and in this there was none in this case.
24. Galant convened what was termed as a ratification meeting on 25 September 2018, the purpose of which was to ask the panel members to reconsider their decision. He again said that the best person had been found for the position and that there was no valid motivation for the process to be repeated. Galant also said that if the panel does not recommend the second respondent; they will be responsible for paying his salary. As result of this threat the panel ratified his appointment.
25. Thereafter on 1 November 2018 the SGB panel wrote to the deputy director, Ms Mocke raising their concerns with process; the covering letter was signed by Mr Williams the chair person. The contents of the covering letter are that the SGB has unanimously arrived at the conclusion that the process of the appointment of the principal was not handled correctly in that there were many irregularities which disadvantaged the candidates and requested the process to be repeated, the reasons they provided were ;
• Criteria for short listing was changed another 10 points were added to candidates who were already principals to advantage principal.
• The panel only had 30 minutes to consider the interview questions and model answers which was a too short a period.
• Galant informed them that two of the five short listed candidates had dropped out but no proof thereof was provided.
• Galant made personal comments about each of three candidates.
• Galant made a degrading comment to one of the panellists suggesting that she scored the applicant highly on a particular question because she was having an improper relationship with the applicant; after which Galant asked her to reconsider her score.
• At the meeting when feedback from second respondent’s CBA test was provided the panel voted to repeat the process and Galant stated that he would not support such a proposal as the correct person had been found.
• Thereafter at ratification meeting Galant threatened the panel; he told them that if they did not recommend the appointment of the person who should get the position that is the second respondent, they would be responsible for his salary as a result of which panel agreed to nominate the second respondent.
• Galant asked Ms Kriel to alter the minutes so that they did not reflect what had actually taken place.
• Galant acted outside the scope of his role as observer; he interfered in the process and intimidated the panel.
• For the reasons stated the panel requested that the process be repeated and that the departmental representative should be someone other than Galant.

Respondent’s evidence
Dr Ferdinand Henry Michael Galant, circuit manager was the departmental representative in the recruitment and selection process. His role as departmental representative was to ensure the SGB understood their roles and the prescripts relating to the process and to ensure that all candidates were treated equally.
26. The proficiency of SGBs varies and at times he has to play a greater role in the process. At the start of the process it was decided that there would be ‘no top’. This means that should candidates fall out of the interview process for whatever reason; they would not be replaced by other candidates.
27. In the short listing process he added an extra 10 points candidates who were existing principals as he considered that they would be better equipped and experienced for the position. It was put to him that this discriminatory and especially so with regard to females and disabled candidates.
28. Five candidates were shortlisted, of those two dropped out; he did not have the letters with him from the candidates who dropped out but has had sight of them. He referred to question 8, the role play. The applicant scored no points for this question as he did not complete the role play in the required 30 minutes, despite having reminded the applicant that he only had six minutes left. It was put to him that he only made the applicant aware of the time after ten minutes had elapsed, but did not as requested inform him of the time he had left
29. When Jones gave the applicant a score of 10 for his power point presentation, he denied saying to Jones that it appeared that there was something going on between Jones and the applicant (suggesting that they had an improper relationship) as being the reason as to why she scored him so highly on this question. What he did say was, ‘what is going on here?’ The reason for his comment was that the other members of the panel did not rate the applicant highly for this question and that she had not scored him highly on other questions. The reason he did this was that it is his job to moderate the scoring and that was what he was doing. Jones agreed to reduce her score by two points.
30. He admitted changing the minutes prepared by Kriel for grammatical reasons and to ensure that they accurately reflected what had taken place in the meetings, one of the reason he provided for changing the minutes was that Kriel’s minutes reflected that the applicant’s marks were changed and this was not the case as not only his marks were moderated.
31. Candidates are only sent for CBA testing if the reach the cut off of 60% for interview questions. Cloete and the second respondent qualified for CBA testing. It is not compulsory that candidates are sent for CBA testing. They were sent at the request if the panel and they on 28 August 2018 requested that the second respondent be sent for CBA testing. It was put to Galant that the minutes reflect that thee candidates will be sent for CBA testing. He did not recommend that Cloete go for CBA testing as the panel did not request it and the test was expensive. It was put to him that Cloete may have done exceptionally well in the CBA testing. Galant said that Cloete not have good eye contact and appeared unprofessional and intimidating. There was no problem with the result of the second respondent’s CBA. The results indicated area of development.
32. At the interview meeting of 19 September 2018 the panel voted for the process to be redone, one of their reasons for doing do was to increase pool; however they had already decided that there would be ‘no top up’. He got the impression that it was the lady educators who did not like the second respondent. In any event he could not motivate for the applicant to be appointed given his recent promotion and that he had to motivate for his appointment to his position as deputy head.
33. Thereafter he discussed the matter with the director: recruitment and selection who agreed that another meeting of the panel should be convened. At that meeting Galant informed the panel that that the scores indicated that the best candidate had been found and that there was no reason to repeat the process. He denied ever telling the panel that they would have to pay for the salary of the person who should have got the post.
34. It was put to Galant that the panel only agreed to nominate the second respondent at the ratification meeting held on 25 September after they were threatened. The panel wanted process to be repeated at meeting of 28 August 2018 and 19 September 2018
35. With regard to the comments he was alleged to have made about the candidates; he did make comments but they were after he interviews.
36. He asked Kriel to change the minutes because they gave wrong impression of what had taken place. For example Kriel’s minutes referred to the applicant’s marks being moderated when the marks of others were also moderated. He therefore took out the sentence which reflected that the applicant’s marks were changed.

37. The parties submitted argument in support of their respective cases which I will refer to where necessary in my analyses.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

38. The onus is on the applicant to prove the existence of the unfair labour practice. The applicant’s dispute concerned an allegation of an unfair labour practice in relation to promotion. The applicant argued that the first respondent acted unfairly in the recruitment and selection of the post in question. He claimed that this unfairness was a result the departmental representative exceeding his powers and manipulating the process.
39. Evidence was presented by Wrentia Jones who I found to be a credible and reliable witness who did not change her version despite robust cross examining by both the first and second respondents’ representative. I also noted that given, that she was and is an educator; it was not in her interests to testify against the circuit manager.
40. Many of the issues which were raised as being unfair were not disputed by Galant, such as the adding of 10 points in the shortlisting process to candidates who were already in the position of principal which for the reasons stated below I find to be unlawful and discriminatory.
41. For the reasons stated below I find that in terms of the evidence before me on a balance of probabilities the departmental representative Galant did indeed act outside his powers and manipulated the process so that the second respondent would be appointed and / or so that the applicant would not be appointed.
42. The role of a departmental representative is to ensure that the recruitment and selection process is conducted fairly and within applicable prescripts and to act as a resource for the panel. On the evidence before me this is not what the representative did.
43. The irregularities started at the shortlisting stage. Galant instructed the panel to add an extra 10 points to the score of any candidate who was already a principal. Galant provided no justifiable reason for instructing the panel to do this. The advertisement did not state that priority would be given to exiting principals. The addition of such a criteria is discriminatory towards other candidates. The only time candidates may score extra marks is for purposes of employment equity. This was not such a case. The adding of the points was contrary to the principles of employment equity. A female and / or disabled candidate who was not an existing principal would in fact be prejudiced by the addition of such points. It also discriminated against non-principals; should points be added every time the position of a principal is advertised, the chances for promotion of non-principles would be greatly reduced. Had it not been for the addition of the ten points; the short list may have been made up of different candidates.
44. As per Resolution 1 of 2002 which provides guideline for the interpretation and application of Resolution 5 of 1998 which deals with recruitment and selection processes: Initial sifting shall be in terms of the minimum requirements for the post as stated in the PAM. There was no requirement either in terms of the PAM or the advertisement to add an extra 10 points to candidates who are already principals when applying for the position of principal at another school. It is incomprehensible how it can be considered fair to give further advantages to candidates who were already advantaged; that are existing principals.
45. As to Galant’s challenge to the scores Jones allocated to applicant’s role play. Galant’s reason for challenging her scoring was that he was moderating the scores. No evidence was provided for any other candidate’s marks having been moderated. Following Galant’s reasoning he should have challenged the fact that Jones allocated 10 points to the second respondent for his answer to question 6 when that was one of her few high scores for him and other members of the panel scored the second respondent lower scores for that question.
46. The applicant was given no points for his presentation which he did not finish within 30 minutes. No reason was provided as to why this would cause him to score no points. Should a person in an exam question or an assessment not complete a question, that person would in the normal course of events will be allocated points for what he answered.
47. Galant acted contrary to prescripts by discussing candidates. It was not disputed that he said that he could not support the recommendation to appoint the applicant as he had just been promoted, resulting in the applicant starting on the back foot with negligible chance of being appointed. It begs the question as to why he was shortlisted. No evidence was put before me as to how much time must elapse between each promotion.
48. It was not disputed that the panel had only 30 minutes to familiarise themselves with eight questions and answers which were not simple. It would take more than 30 minutes to explain the contents of the questions, let alone go through the memorandum. On Galant’s own version this was not an experienced panel. The fact that the panel had 30 minutes to go through the questions and answers was one of the points that Galant removed from the draft minutes.
49. At the meeting of 19 September 2018 it was decided that the second respondent should be sent for CBA assessment; the results of which indicated areas of concern, one of which related to interpersonal skills. Thereafter the panel wanted the process to be repeated. This was resisted by Galant. A CBA is as a confirmatory tool the results. A candidate who scores more than 60% is usually sent for CBA which is made up of a psychometric test. Surely Galant given the position of the panel should have suggested that Cloete be sent for a CBA.
50. On the evidence before me I find that Galant did interfere in the process and threaten the panel by inter alia telling them that should second respondent not be appointed then they would be responsible for his salary. This type of attitude was demonstrated by the email he sent to the principal, Terence de Jongh when it came to his attention that the panel’s letter of complaint was sent from his computer. Galant emailed de Jongh and told him that he was disappointed with him and would address him personally. Surely the SGB can use school resources for SGB business.
51. The applicant does not as the first and second respondent appear to believe as per their closing arguments seek to be appointed into the position of principal and hence he does not have to prove that he is the best candidate. It was argued that should there have been procedural irregularities the applicant was not prejudiced. Given the nature of the irregularities referred to above it is not possible to claim that he was not prejudiced.
52. For the reasons stated I find that the procedure relating to the appointment of the principal of Hillcrest Primary School was irregular and unfair and may have resulted in substantive unfairness.
53. I am mindful that interests of child must always come first but do not believe that their interests would be prejudiced by ordering that the process of recruitment and selection to be repeated.

AWARD

54. The applicant, David Arnolds, has established that the first respondent, the Provincial Department of Education Western Cape, committed an unfair labour practice relating to promotion against him.
55. The appointment of the second respondent, Mr Julius Williams, to the post of Principal, Hillcrest primary School, is set-aside on the following conditions:
56. The order is not retrospective; but is effective as from the date of this award.
57. The second respondent is entitled to his remuneration and benefits as principal, Hillcrest Primary School, until the date that this award is served on the parties by the ELRC.
58. This order does not prevent the first respondent from appointing the second respondent, applicant or any other suitable candidate is an acting capacity as principal in this post, pending the permanent filling of the post.
59. The recruitment and selection process must be repeated from the advertising stage and must be advertised in the first school bulletin of 2020. Dr F M Galant may not participate in this process or in the recommendation of a candidate in this regard.
60. No order as to costs is made.

ELRC Panellist: Bella Goldman