In the matter between:

SADTU obo Z F MVUBU APPLICANT

and

DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT

______________________________________________________________

ARBITRATION AWARD
______________________________________________________________

DETAILS OF HEARING AND REPRESENTATION

The Applicant referred her dispute concerning her appointment to the post under number 2807 advertised in HRM 62/04, a level 1 post at the Christopher Nxumalo Primary School in Chesterville.

Mr L Cele of SADTU represented the Applicant and Mr A Preethpaul represented the Respondent. The matter was finally heard on 29th July 2005 after numerous deliberations during the expedited process.

ISSUES TO BE DECIDED

Whether or not the Applicant was appointed to the post of a Level 1 Educator under number 2807 and if so the relief the Applicant is entitled to.

SURVEY OF THE EVIDENCE AND ARGUMENT
On 29th July 2005 the parties agreed to the following statement of facts:
a) the Applicant applied for a level 1 post under number 2807 advertised in HRM 62/04 at the Christopher Nxumalo Primary School in Chesterville;
b) the governing body of the school ratified the recommendation of the Interview Committee on 16th November 2004;

c) the Respondent subsequently appointed the Applicant to the aforesaid post;

d) the Respondent thereafter became aware of a grievance lodged by Mrs T S Ndlela and immediately instructed the Principal of Christopher Nxumalo Primary School to destroy the letter of appointment, thereby withdrawing the appointment;

e) the Applicant was informed verbally by the Principal of the aforesaid school that she was appointed to the post but subsequently informed her that he was instructed by the Respondent to destroy the letter of appointment on the basis that the appointment was withdrawn.

The parties also agreed to submit written Heads of Argument. They duly complied therewith.

APPLICANT’S ARGUMENT
Applicant argued that after she applied for the post in question, she was short listed, interviewed and recommended for the post by the Governing Body of Christopher Nxumalo Primary School.

Despite a grievance lodged on 10th December 2004 by one Mrs T S Ndlela, the Respondent appointed the Applicant to the post in May 2005. In this regard the Respondent prior to delivering the letter of appointment to the principal, caused Applicant’s name to appear in the Respondent’s “placement bulletin” which is a compilation of all the names of the educators that have been recommended for promotion. She said that educators whose names appear on the bulletin have every reason to believe that they were appointed the post and therefore she believes that an appointment was made in her case as well.

The Applicant further contends that the Respondent cannot withdraw the appointment because of the grievance lodged by Mrs Ndlela and which grievance was not dealt with by the Respondent timeously when it ought to have ascertained the legitimacy of the grievance. Had the Respondent dealt with the grievance in the proper manner by approaching the ELRC to resolve the matter, both disputes would have been consolidated. This did not happen solely due to the Respondent’s inefficiency.

The Applicant further argued that there is no legal basis for the Respondent to withdraw the appointment and for it to have instructed the Principal to tear up the letter of appointment is unjustifiable, unfair and lacking in transparency.

RESPONDENT’S ARGUMENT
The Respondent conceded that it had appointed the Applicant to the post in May 2005 but did so inadvertently. On 10th December 2004 it received a grievance from Mrs Ndlela who also applied for the post in question.

It did not process the grievance timeously but upon realising its error that the post should not be filled due to an unresolved grievance, the Respondent instructed the Principal to destroy the letter of appointment. The Respondent maintains that due to its size and other logistical problems it was unable to hear all grievances timeously. It further contends that Mrs Ndlela should not be prejudiced for its delay in addressing her grievance.

The Respondent further argues that it has the right to withdraw an appointment if it is established that an appointment was effected on incorrect data and procedural incorrectness.
ANALYSIS OF THE EVIDENCE AND LEGAL PRINCIPLES

The Applicant clearly complied with all the requirements for the Post and upon recommendation by the School Governing Body was appointed to the post by the Respondent.

The Principal received the Letter of appointment and the Applicant was informed thereof. Upon the Respondent realising that it had not processed a grievance lodged by Mrs Ndlela, it withdrew the appointment by instructing the Principal to destroy the letter of appointment.

I am not satisfied that the Respondent acted in good faith by instructing the Principal to destroy the letter of appointment. The Applicant cannot be blamed for the Respondent’s inefficiency by not processing Ndlela’s grievance timeously. Despite receiving the grievance on 10th December 2004 it did nothing until the appointment of the Applicant in May 2005. It cannot be said that the appointment was made in error as it did in fact make the appointment on proper information before it.

Although the Respondent argues that it can and does withdraw appointments if it is established that the appointment was effected on incorrect data and procedural incorrectness, there is nothing on the evidence before me that supports the Respondent’s argument, in this regard.

The appointment has been made and there is no logical and rational basis for its withdrawal. Ndlela’s grievance may still be processed and she has the right to approach the ELRC if she is not satisfied that her grievance has been attended to. Until the facts are established which may or may not support Ndlela’s grievance, it is unfair and unjust for the Applicant to continue to suffer prejudice by being prevented by the Respondent in not taking up her post to which she was appointed in May 2005.
AWARD

I make the following award:

1) the dispute lodged with the ELRC by the Applicant is upheld;

2) the appointment of the Applicant in May 2005 as Level 1 educator in terms of post number 2807 is valid and enforceable;

3) the Respondent is ordered to give effect to the appointment by allowing the Applicant to take up her post within thirty (30) days from date hereof;

4) there is no order as to costs.

P GOVINDASAMY
ARBITRATOR
29/09/2005