In the matter between:

H OKHUIS Applicant

and

DEPARTMENT OF EDUCATION – WESTERN CAPE Respondent

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ARBITRATION AWARD

______________________________________________________________________

DETAILS OF THE HEARING AND REPRESENTATION:

1. This matter was initially set down as a CON/ARB on 20 January 2011 concerning an alleged unfair dismissal dispute. The Applicant presented her own case. Ms. A. Samson of Labour Relations within the Department represented the Respondent. This matter could not be resolved during conciliation and we immediately thereafter proceeded with the arbitration hearing. The matter could not be concluded in one day and was postponed until 19 March 2011 for further evidence. On that day the leading of evidence was finalized and digitally recorded. The Respondent requested to make a written closing argument by agreement on or before 24 March 2011, after which I would issue my award on 7 April 2011. I however, due to circumstances, requested extension of my award date until 11 April 2011.

ISSUE TO BE DECIDED:

2. Whether the Applicant was indeed dismissed, and if so, whether the dismissal was fair.

HISTORICAL BACKGROUND:

3. During October 2010 the Applicant was approached by the Principal of Avondale Primary School and requested to relieve a teacher that would go on maternity leave. The Applicant was supposed to start on 22 October 2010. On her arrival at the school the teacher in question was still in her class and did not go on earlier maternity leave as arranged. Therefore the Applicant could not take over the class. The Applicant was eventually requested to go home and was later informed by the Chairperson of the School’s Governing Body (SGB) that the Applicant’s appointment was not procedurally correct and that the post should be advertised. The Applicant now alleged that she was appointed and subsequently dismissed. She accordingly claims compensation for an alleged unfair dismissal.

EVIDENCE AND ARGUMENT BY THE APPLICANT:

4. The Applicant was the only witness and submitted documentary evidence in support of her case. I have decided to summarise the evidence and argument as far as I consider relevant for the purpose of my award.

Applicant:

5. The Applicant testified that she was approached by the Principal, Mr Scholtz, and appointed by him to start teaching on Monday 22 October 2010 at a salary of R12, 000.00 per month. This temporary appointment would have been for the period October 2010 until March 2011.

6. The Applicant further alleged that her appointment was made together with two other appointments at the school. She was the only one that was dismissed after the Chairperson of the SGB, Mr Swartz, indicated that there was a problem with the appointment and that the post should be advertised. The Applicant also indicated that she completed an application for appointment, but requested it back once she became aware of the alleged irregularity regarding her appointment.

7. According to the Applicant there was friction between the Principal and Mr. Swartz, because Mr. Swartz interfered with the management of the school. Further the Applicant was of the view that the SGB was not needed in her appointment and that the Principal on his own was entitled to appoint her as teacher.

Closing argument:

8. The Applicant submitted that she was formally appointed by the Principal as a replacement teacher. She was dismissed when the Chairperson of the SGB informed her that the proper procedure was not followed and that the post should be advertised. Accordingly the Applicant requested 6 months compensation equivalent to the contract period.

EVIDENCE AND ARGUMENT BY THE RESPONDENT:

9. The Respondent led the evidence of M Scholtz and JJ Swartz. I have again decided to summarize the evidence and argument as far as I consider relevant for the purpose of my award.

M Scholtz (“Scholtz”):

10. Scholtz testified that he is employed as Principal at the Avondale Primary School, Atlantis. He knew the Applicant from previous occasions.

11. Scholtz further testified that three posts became available to temporarily replace teachers at the school. One of the teachers, Radsebe, of the Grade 4 class had to go on maternity leave and the arrangement was made that she would leave earlier. Scholtz had limited time to appoint a replacement teacher. He was then informed by the personnel officer to contact the Applicant.

12. Scholtz further testified that in the past he had a good working relationship with the SGB. His management team (Principal, Deputy Principal, and Head of Department) in practice was given the initiative to meet candidates and recommend them for appointment, which in the past was never rejected by the SGB. Eventually the past relationship had broken down and the new SGB took a different approach.

13. Scholtz further testified that he was shocked and disappointed when he came to introduce the Applicant to her new class during October 2010 to find Radsebe still in the classroom. According to him it put the school in a bad light. The Applicant was requested to go home and was afterwards informed by Swartz that proper process was not followed. Swartz declared his satisfaction with the process towards Scholtz who withdrew from the process. The SGB took over the process of advertising the post and subsequent appointed somebody else.

JJ Swartz (“Swartz”):

14. Swartz testified that he is employed as the Chairperson of the SGB at Avondale Primary School for approximately 2 years.

15. As far as the instant case was concerned Swartz stated that no proper procedure was followed to advertise the post. As far as the other two relieve posts were concerned they were extensions and not new appointments and therefore those positions were not advertised. According to Swartz the Principal could not make his own appointments and the post in question had to be advertised.

16. Swartz also during his testimony confirmed that he contacted the Applicant to inform her that the process was not correctly followed and that the post would be advertised. He also informed the Applicant that he wanted her to apply for the post. The Applicant responded in a reprehensible manner and indicated that she was not interested to apply for the post.

Closing argument:

17. Samson, for the Respondent, submitted that the Applicant did not discharge the onus of proofing a dismissal. The Principal acted ultra vires and could not appoint the Applicant in terms of the prescripts. She made reference to the Employment of Educators Act 76 of 1998 in particular section 6(3)(a) of Chapter 3, which states that the appointment of an educator at a public school may only be made on the recommendation of the governing body of that public school. In terms of section 6 (1)(b) of the Act the appointment of an educator is made by the Head of the Department in the case of a Provincial Department of Education

ANALYSIS OF THE EVIDENCE AND ARGUMENT:

18. I have decided not to repeat the evidence and argument as a whole, but would only focus on those issues I consider relevant for the purpose of my award.

19. It was considered common cause between the parties that Scholtz contacted the Applicant and informed her to come and work at the school during October 2010. This appointment did not materialize as Mr. Swartz, Chairperson of the SGB, indicated that no proper process was followed. The post was then advertised by the SGB and a subsequent appointment was made. The Applicant did not apply for such post and was therefore not appointed.

20. It was my inference from the Applicant actions and demeanor during her testimony that she was upset and dissatisfied with the manner in which the situation was dealt with. It came to light during the hearing that she expressed her dissatisfaction towards Swartz during the telephone conversation they had regarding the issue. She also visited the school at some stage when she again expressed her dissatisfaction as to the way the matter was dealt with. The Applicant was of the understanding that she was officially appointed to act as teacher when the Principal went to introduce her to the class on 22 October 2010. Unfortunately the teacher (Radsebe) was still at her class and the Applicant could not commence work.

21. Scholtz, during his testimony stated that he used to follow a certain practice with the approval of the SGB. My inference from his testimony in this regard was that he and his management team in the past made their own appointments, which was always approved by the SGB. This did not take place in the instant case as Swartz clearly indicated that proper procedures were not followed and that the Principal was not entitled to make his own appointment. It also came to light during the arbitration hearing that there were other CV’s that had to be considered for the appointment. Scholtz stated that he was only told by the personnel officer to phone the Applicant.

22. Ms Samson, for the Respondent, made reference to section 6 supra and submitted that the Principal acted outside his powers. My interpretation of Chapter 3, section 6 of the Act supra was that all appointments of teachers could only be made on the recommendations of the SGB of a public school like Avondale Primary School. Therefore I have to concur with Ms Samson that the Principal did not have the power on his own to appoint the Applicant. It may be so that there was never any hiccups with Scholtz’s past practice to appoint relieve educators. It was apparent from the facts in the instant case that Scholtz used his own initiative to contact and appoint the Applicant assuming that the SGB would follow his past practice. The final appointment in any event must be made by the Head of Department. In certain instances, that were not applicable, the Head of Department may decline to follow the recommendation of the SGB. Accordingly there was no doubt in my mind that Scholtz acted outside his powers to allow the Applicant to come to the school to commence work without the prior approval of the SGB. Accordingly his appointment of the Applicant was null and void. Further the Applicant was not formally appointed in the instant case seeing that she never officially submitted her application for appointment. Therefore the Head of the Provincial Department also never officially made the appointment of the Applicant.

23. The Applicant tried to emphasize the fact that Swartz had something personal against the Principal and that it was the reason why her appointment was not approved. Swartz by agreement testified over speaker phone and therefore I could not see his actions and demeanor. Be it as it may he however gave satisfactory answers and remained steadfast during cross-examination. He gave precise and clear responses to the questions posed. It was never my inference from the answers that Swartz gave that he had any personal issues with the Applicant or Scholtz. The Applicant did not contest the fact that Swartz in fact requested her to apply for the post as he wanted her to do so. Further the Applicant also could not really contest the fact that the other two appointments were extensions in stead of new appointments. My inference from the evidence as a whole was that Swartz was indeed correct with his interpretation and application of the prescripts as far as recruitment and selection was concerned. To my mind the Applicant had the perception that Swartz had something against her. She made reference during the hearing about a previous occasion that Swartz refused to let her work for free at the school. Swartz response to that during cross- examination was that there was no vacancy at the time. The Applicant could not take it further. The Principal on the other hand was unhappy about the fact that Swartz intervened and rectified the situation. That explains why the Principal (Scholtz) withdrew from the process.

24. Accordingly I find that the Principal was not entitled to appoint the Applicant and acted outside his powers and therefore his initial appointment of the Applicant was without any legal force. Accordingly I find that there was no dismissal in the instant case.

AWARD:

25. In the premises I make the following award:

(1) I find that the Applicant did not discharge the onus of proofing a dismissal.

(2) I make no order as to costs.

ADV J P HANEKOM