In the arbitration between:

CAPE TEACHERS PROFESSIONAL ASSOCIATION (CTPA) obo W HECTOR APPLICANT

and

DEPARTMENT OF EDUCATION – EASTERN CAPE PROVINCE (ECD) RESPONDENT

ARBITRATION AWARD

1 . HEARING AND ARBITRATION

.1 The arbitration proceedings were conducted on 9 March 1999 at the premises of the Department of Education, Darling Street, North End, Port Elizabeth.

.2 The employer party was represented by Ms I Poswa and the grievant by Mr D Heradien.

2 . ISSUE IN TERMS OF REFERENCE

.1 The terms of reference applicable to this arbitration are that I was to decide on:

The procedural correctness of the appointment of the principal at Narsingstraat Primary School.

To make an award which I deem to be appropriate and correct.

To base the award entirely on the evidence and documentation submitted at the arbitration proceedings.

That the award shall be final and binding on the parties.
The Arbitrator shall on application by either party make an award in respect of costs in the case of postponement, adjournment and/or cancellation of the present proceedings.
.2 I was also given the power to determine the procedure at the arbitration hearing.

3 . SURVEY OF EVIDENCE AND ARGUMENT
.1 It is common cause that both the grievant and present incumbent applied for the principalship post at Narsingstraat Primary School during 1996 pursuant to an advertisement for the post.

.2 It is also common cause that both parties together with three other candidates were interviewed by the panel consisting of three members of the School Governing Body with a certain Ms Maya acting as recording secretary and observers representing two employee organisations, the South African Democratic Teachers Union (SADTU) and CTPA.

.3 It is also common cause that the observers enjoy such status only and may not participate in the deliberations.

.4 The Employer party indicated that they were not properly informed by the Education Labour Relations Council (ELRC) in respect of the present dispute but would not object to the arbitration proceedings, specifically condones any procedural flaws, if any, in the referral of the dispute and both parties further agreed that the arbitrator has jurisdiction to hear the matter.

4 . EVIDENCE

.1 Mr Heradien on behalf of the grievant called two witnesses.

.2 Mr Kivedo gave evidence that the represented CTPA as an observer at the interviews and a certain Mr Wildskut represented SADTU in the same capacity.

.3 He testified that the were both requested by the chairperson and allowed to participate in the process. The grievant introduced into evidence exhibit “B” which were scoresheets used at the interviews. The witness pointed out his signature on the one document marked “B2”.

.4 The witness further testified that meetings called between the Governing Council and the interview panel never materialised due to various reasons.

.5 The evidence of Mr Kivedo remains undisputed.

.6 The grievant called Mr Hector to give evidence, wherein he confirmed the evidence of Mr Kivedo. He further confirmed that he unsuccessfully applied for the post in question.

.7 Hector was vague of his knowledge of meetings between the Governing Council and the interview panel, but admitted under cross-examination that he was aware of at least two such meetings being called.

.8 The witness further gave evidence on correspondence between himself and the Education Department, which was translated from Afrikaans for the benefit of the employer representative. These documents were not tendered into evidence.

.9 The grievant further introduced exhibit “C” which was a memorandum from the ECD Senior Legal Administration officer to the ECD permanent secretary dated 1 August 1997 and exhibit “D” which was a letter from the ECD addressed to the present incumbent Mr D Jafta dated 19 February 1998, the contents whereof are briefly as follows:

That the incumbent was appointed despite the registered dispute which was in breach of the constitution of the ELRC. The memo further recommended a reversal of the appointment of Mr Jafta and that the caretaker principal be appointed. The above recommendation was endorsed by the offices of the Deputy Permanent Secretary of Education, the office of the Permanent Secretary of Education and the MEC for education.
.10 The decision as recommended above was conveyed to Mr Jafta in the letter dated 19th February 1998.

.11 He further gave evidence that despite the above, the incumbent remains in the post.

.12 Mr Hector further gave evidence in respect of exhibit “A”, Resolution No 13 of 1995 of the ELRC and referred to clause 4.4 and 4.5 thereof which reads as follows:

“4.4 The interview committee must then rank the candidates in order of their preference, and give a brief motivation for their choice. During this process the relevant employee organisations of the ELRC can send observers to sit in.”

“4.5 The employing department must then satisfy itself that the procedures as agreed upon were followed, and that there were no disputes from any of the parties involved before making a final decision.”

.13 The abovementioned exhibit “A” clearly confirms that the evidence of Mr Hector which also went undisputed.

.14 The grievant called no further witness and the employer party called no witnesses.

5 . ANALYSIS OF EVIDENCE AND ARGUMENT

.1 The evidence produced at the hearing is set out in some detail above. From the detail documentation and oral evidence it is apparent that the grievant is of the view that the process of selection for the principalship post at Narsingstraat Primary School was unprocedural.

.2 From the detailed documentation and the lengthy oral evidence of both Mr Kivedo and Mr Hector, I am convinced that the selection process were unprocedural and influenced the final selection made by the Education Department.

.3 The candidates were interviewed by a panel not properly constituted and placed observers on the same and/or equal footing as members of the panel.

.4 The employer party submitted that although there were no procedural flaws, these were condoned by the observers participating in the selection process and that they agreed with the process thus followed.

.5 The employer further submitted that emphasis should be placed on the correctness of the appointment, rather than the procedural nature thereof. The view which I reject. In my view members of the selection panel cannot at will alter laid down and accepted procedures without full consultation of the employing party. In this instance the Education Department of the province of the Eastern Cape and/or the ELRC.

.6 The employer party representative further submitted that when the Department of Education became aware of the procedural flaws, they assisted by taking remedial steps which was clearly not effective.

6 . AWARD
In the exercise of my mandate to make an award which I deem to be appropriate and correct, my determination is as follows:

.1 That the appointment of Mr Jafta to the post of principal of Narsingstraat Primary School was unprocedural.

.2 That Mr Jafta vacate the post of principal of Narsingstraat Primary School.

.3 That the Education Department of the Eastern Cape Province immediately restart the process of the appointment of a principal for the Narsingstraat Primary School.

.4 That a caretaker principal be appointed to take up the post of principal of Narsingstraat Primary School by no later than the commencement of the second school term.

.5 No special order as to costs is necessary.

__________________
Arbitrator
W P SCHEEPERS
27 March 1999

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES EC 72267
APPLICANT W HECTOR
RESPONDENT DEPARTMENT OF EDUCATION (ECD)
NATURE APOINTMENT/UNFAIR
ARBITRATOR W P SCHEEPERS
DATE OF ARBITRATION 9 MARCH 1999
VENUE PORT ELIZABETH

REPRESENTATION:

APPLICANT MR D HERADIEN
RESPONDENT MS I POSWA

AWARD:

1 In the exercise of my mandate to make an award which I deem to be appropriate and correct, my determination is as follows:

2 That the appointment of Mr Jafta to the post of principal of Narsingstraat Primary School was unprocedural.

3 That Mr Jafta vacate the post of principal of Narsingstraat Primary School.

4 That the Education Department of the Eastern Cape Province immediately restart the process of the appointment of a principal for the Narsingstraat Primary School.

5 That a caretaker principal be appointed to take up the post of principal of Narsingstraat Primary School by no later than the commencement of the second school term.

6 No special order as to costs is necessary.

DATE OF AWARD 23 MARCH 1999