CTPA OBO S JEFTHA and SADTU OBO a MARAIS Vs WESTERN CAPE EDUCATION DEPARTMENT

CTPA obo JEFTHA AND SADTU obo MARAIS vs DEPARTMENT OF EDUCATION WESTERN CAPE

FORUM:ELRC

ARBITRATOR:TARIQ JAMODIEN

CASE NO:02/2000 0371 WC & 10/2000 0627 WC

DATE:16 NOVEMBER 2001

Recommendation by SGB

-Applicant, a female educator, contending that SGB failing to consider the need to redress the imbalances of the past when recommending a male for deputy principal when management of school overwhelmingly male.

-Issue raised as procedural flaw in not heeding section 7.1 of Employment of Educators Act and not discrimination dispute.

-Held that cannot expect 'redress' to be applied in absence of rational and objective employment equity plan which was not in existence .No unfair conduct

Shortlisting

-Applicant complaining that 18 persons shortlisted and interviewed meaning that they had to compete against 16 others as opposed to only 3 had the prescription that a maximum of 5 persons be shortlisted, been complied with. Held that the prescription of a maximum of 5 refers to persons not on the redeployment list. Since two posts were advertised, no more than 10 persons on the redeployment list ought to have been shotlisted. 18 candidates is thus irregular. Not unfair, however, to the applicants, since, should these prescriptions have been strictly followed, they would not have been short-listed at all.

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ARBITRATION AWARD

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DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing took place on the 9 October 2001 at the Worcester Teacher’s Centre. The WCED was represented by Mr Kenny Petersen and the Unions, CTPA and SADTU, who decided to join their disputes, were represented by Mr Derek Heradien and Mr Cupid Jacobs, respectively. I am indebted to them for their assistance in this matter.

ISSUES TO BE DECIDED

As arbitrator, the issues for me to decide were set out as being whether, in my opinion and based upon the evidence presented in the arbitration, the WCED had acted unprocedurally during the process concerning the filling of a post at Esselen Park Primary School, Vacancy No. 3490 Vol. 4/99 with particular regard to:

1.Whether the Governing Body had given due regard to “equality, equity and the other democratic values and principles” with a view to redressing the imbalances of the past”.

2.Whether the Governing Body, in short listing 18 applicants, had followed an unfair procedure.

SURVEY AND ANALYSIS OF EVIDENCE

Issue 1 :Evidence and Argument

The unions called two witnesses, Ms Sylvia Jeftha and Ms Anne Marais.

Ms Sylvia Jeftha testified that she had 24 years service at Esselen Park Primary School and has known Ms Marais for the past 22 years. She said the Ms Marais has excellent leadership qualities and would do well in this senior post.

Ms Jeftha testified that the gender composition of the top management structure of the school being was as follows: Principal - male; Deputy Principal - male; 2nd Deputy Principal - male; HOD’s - 2 male and 2 female.

She said that the senior primary was composed of 10 males and 8 females of whom 5 males and 1 female were in the top structure.

Ms Jeftha further testified that she had acted as deputy Principal for 2 years within which time she had gained the respect and support of teachers and parents.

She alluded to certain discussions with the principal before the process, concerning the future deployment of the subsequent nominee, Mr Booysen, in light of his post having fallen prey to the rationalisation process. The discussions apparently intimated that she would be appointed in the Deputy Principal post and Mr Booysen would fill her HOD post.

She said that staff representatives had not sought input from staff on an equity plan.

Ms Jeftha said that in previous interview processes she had seen the points allocation of those interviews where the best person was not nominated, but where the Governing Body had fought for the nomination of the person whom they deemed to be the best, irrespective of points in the interview.

Under cross-examination, Ms Jeftha said that she saw the interviewing process as a part of the nomination process, but not necessarily as the defining aspect. She believed that the principal who knows the qualities and previous experience of the applicants should make an overriding input.

She also alluded to bring dismayed by the nomination of Mr Booysen as she was aware of his level of competence. She said that if an outsider were to be nominated then she probably would not have lodged a dispute, as she would not have been in a position to judge that applicant.

She agreed that the fact that more women teach in the junior primary phase and more men teaching in the senior primary phase can be attributed to the previous education system and was thus the norm in most schools.

Ms Anne Marais testified that she has 22 years teaching experience at Esselyn Park Primary School and is qualified to teach in both the junior and senior primary phases.

She gave a glowing account of Ms Jeftha’s qualities and experience as an educator.

Ms Marais concurred with the gender composition of the staff as outlined by Ms Jeftha and also said that she was not aware of any formal attempts to address equity at the school. Ms Marais said she was a firm and vocal proponent of equity and encouraged her fellow female colleagues to apply for senior posts. She said that one woman was appointed as HOD in 1994 and then Ms Jeftha in 1998.

Ms Marais said that she got the sense that the interview process was pre-determined insofar as the nomination of Mr Booysen was concerned and that the fact that he was a Governing Body member had advantaged him.

Under cross-examination, Ms Marais conceded that she was not aware of how the other applicants fared during the interview process. She also agreed that the same governing body was not responsible for previous nominations.

Ms Marais also agreed that the gender of the applicant should not necessarily trump the ability of the candidate, when making a nomination.

The WCED were of the impression that the Unions had not adduced sufficient prima facie evidence and closed its case.

Issue 1 : Determination

Section 7 (1) of the Employment of Educators Act, 1998 reads as follows:

7 (1)In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195 (1) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and which include the following factors, namely -

(a)the ability of the candidate; and

(b)the need to redress the imbalances of the past in order to achieve broad representation.

The essence of the Unions case is that the Governing body have failed to comply with Section 7 (1) as quoted above, particularly with reference to establishing gender equity at the school. I understood their claim to rest on the presumption that because a male was nominated in the person of a Mr Booysen, and further, the fact that the disputants, Ms Jeftha and Ms Marais, were, by all accounts, highly competent female applicants but nevertheless overlooked for the post, that the Governing Body had indeed failed to give due regard to “equality, equity and other democratic values”.

This is evident that the composition of the management structure of the school is dominated by males, and that females hold 2 of the 7 top positions. It is also a fact that the school did not have an equity plan in place to address the gender imbalances, which was agreed, is largely due to historical reasons and is common in most other schools. However, the fact that a gender imbalance exists, does not automatically confer upon women an expectation to receive preference for a post, particularly in the absence of any plan or process which should guide the “need to redress the imbalances of the past”. The need to address issues of equity should be applied in terms of a coherent and defensible plan rather than any arbitrary or irrational decision purely to advance certain categories of people on the basis of their previous disadvantage.

Ms Jeftha and Ms Marais have not raised a claim of unfair discrimination, but rather that the Governing Body had committed a procedural error in not considering gender equity. To my mind, not a shred of evidence has been led to give credence to this claim.

Ms Jeftha and Ms Marais alluded to various issues, inter alia:

*the nominee, Mr Booysen was not the best person for the job;

*the fact that Mr Booysen was a Governing Body member had possibly advantaged him;

*that in previous nomination processes, where the “best” candidate did not receive the most points, the Governing Body would seek a way to further that persons interests - the intimation is that the Governing Body should have done the same in this case;

*that the principal and other members of the Governing Body who are aware of the capabilities of certain candidates, should further the interests of such candidates;

*that the interview process should not be the overriding factor that clinches a nomination.

These issues, I believe are speculative and do not at all shed any light on the Unions’ Claim that gender equity was not taken into account. In fact, the Unions did not bring any evidence to show that the Governing Body had failed to consider equity and thereby have committed a fatal procedural error. It should be noted that because a male was nominated does not thereby imply that females were prejudiced. In other words, because a particular outcome causes dissatisfaction to some, does not allow one to presuppose that such an outcome is necessarily unfair. The process to reach the outcome should be proven to be unfair.

There is not a single feature of the evidence that substantiates the Unions’ claims of unfairness on the part of the Governing Body for failing to consider gender equity.

I have to concur with the WCED and find that the Unions have failed to adduce sufficient prima facie evidence, which needed rebuttal and have not discharged the onus that rested upon them.

Issue 2 :Evidence and Argument

The essence of the Union’s argument was that the Governing body had erred in short listing 18 applicants of the 28 applications received. Certain clauses in Resolution 5/98 were quoted which I shall refer to below. They further alluded that their members were disadvantaged because they had to compete against 16 other candidates instead of 3. It is the Unions claim that gross procedural error has occurred with renders the process unfair.

The WCED’s argument was that the disputants were not at all prejudiced by the fact that 18 candidates were short listed. Both Ms Marais and Ms Jeftha were indeed interviewed and enjoyed a similar status as the other candidates. They further argued that if one were to interpret the statutes technically, then, in fact, the disputants should not have been interviewed at all as the 5 applicants deemed in excess, who had applied, would have been the only candidates to be short listed.

Issue 2 :Determination

Resolution No. 5 of 1998, Clause 3.6 reads as follows:

3.6The Interview Committee may conduct short listing subject to the following guidelines:

3.6.1The criteria used must be fair, non-discriminatory and in keeping with the

Constitution of the country.

3.6.2The curricular needs of the school.

3.6.3The obligations of the employer towards serving educators.

3.6.4The list of short listed candidates for interview purposes should not exceed five per post.

A cursory reading of Clause 3.6.4 above, clearly denotes that the intention is not for the list of short listed candidates to be more than 5 per post.

It may be argued that Clause 3.6 as a whole, is purely a guideline and thus it is left to the discretion of the Interview Committee whether to shortlist, and if they shortlist, whether to follow the guideline. However, I find the wording of Clause 3.6 to be misleading, in that actually, the Interview Committee must shortlist as part of the process. It is my view that Clause 3.6 is thus peremptory and seeks from the Interview committee to fulfil its mandate, “subject to” the guidelines, which are listed in the clause. Hence, it would seem irregular and contrary to the guideline if an Interview Committee were to shortlist more than 5 candidates as occurred in this instance.

However, Clause 1.3.4 of Resolution 5 of 1998 reads as follows:

1.3.4All applicants, who are serving educators, displaced as a result of operational requirements and who are suitable candidates for a vacant post in an education institution or office must be short listed.

This clause is unequivocal in stating that displaced teachers must be short listed. It may however run contrary to Clause 3.6.4 above, if those number of displaced teachers would exceed 5.

In this particular case, 5 displaced teachers had applied and therefore were automatically short listed as per Clause 1.3.4 above. However, the question arises as to whether the intention of Clause 3.6.4 meant that, if the number of displaced teachers had already fulfilled the quota of 5, whether all other applicants, would by default, miss the boat. This clearly cannot be the intention and would lead to an absurd situation which is dictated purely by whether an applicant is on a list or not and would disregard other critical criteria in filling the post. What would occur, if by some chance, much more than 5 displaced teachers apply? They would all have to be short listed and would then render Clause 3.6.4 meaningless.

It is my interpretation that when Clause 3.6.4 states that “the list of short listed candidates should not exceed 5 per post”, that in actual fact reference is being made to 5 candidates who are not on a redeployment list. And it would thus also mean that a maximum of 5 non-displaced applicants could be short listed along with all other displaced candidates.

If one were to follow the above interpretation then it would mean that in this case, not more than 10 candidates should have been short listed - the 5 displaced teachers and 5 other candidates. The fact, then, that 18 candidates were short listed, would be irregular.

However, a more critical question is to determine whether in fact, Ms Jeftha and Ms Marais were in any way materially prejudiced by the 18 short listed candidates. I can find no evidence of this being the case.

Their averment that having to compete against more candidates disadvantaged them does not, to my mind, hold much water. For it does not automatically mean that had fewer candidates been short listed, that they would have then been successful.

It is not disputed that Ms Jeftha and Ms Marais were interviewed and were subjected to the same process as the other short listed candidates. This implies that no distinction was drawn between them and the others and thus in no way was there right to fairness tampered with.

Thus, although I find that the short listing of 18 candidates was irregular, I cannot find that the disputants Ms Jeftha and Ms Marais were prejudiced thereby and thus treated unfairly.

AWARD

I accordingly cannot find that Ms Jeftha and Ms Marais were subjected to any unfair labour practice and hereby dismiss their applications.

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TARIQ JAMODIEN

ARBITRATOR

DATED: 16 NOVEMBER 2001