Education Labour Relations Council

PIETERSEN vs DEPARTMENT OF EDUCATION WESTERN CAPE

FORUM:ELRC

ARBITRATOR:ARTHI SINGH-BHOOPCHAND

CASE NO:PSES 185-04/05 WC

DATE:08 SEPTEMBER 2004

Applicant had been employed at the school on a series of fixed term contracts. She applied for a permanent post but was unsuccessful. She alleged procedural irregularities during the interview and nomination process, in particular the fact that the person nominated had resigned a few years earlier which she believed prevented him from being nominated in terms of s 2.3 of the Employment of Educators Act. The Arbitrator held that the Applicant had failed to prove that the nominee had retired (which would prevent re-employment) as opposed to resigned (which wouldn't). However there was no evidence of the nomination being motivated by the SGB members which is a crucial part of the process. Ratification also took place before the nominee signed which the Arbitrator found was a substantial flaw. Ratification was not a mere formality. SGB's conduct was unfair but this does not necessarily lead to automatic setting aside of the process. However, in this case, no appointment had been made and the Applicant had requested that process be redone as opposed to financial compensation. Arbitrator ordered process to be repeated from shortlisting and the Dept to assist SGB to ensure compliance.

______

ARBITRATION AWARD

______

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing was held on the 08 September 2004 at the offices of the Department of Education in Cape Town. Mr D W Meyer, a representative of the South African Democratic Teachers Union (SADTU) appeared on behalf of the Applicant and Mr R Ahmed appeared on behalf of the Department of Education (WCED).

BACKGROUND AND MATTERS NOT IN DISPUTE

Applicant was in a contract position at the Cloetesville High School from the 01 September 2002 until 30 June 2004. Applicant’s contract was continuously renewed during this period until the post was advertised for a permanent position and a Mr Steyn was nominated by the school Governing Body for the position. Applicant also applied for the permanent position and was short-listed and interviewed but was not nominated for the position. Applicant is currently unemployed.

ISSUES IN DISPUTE

I was asked to decide whether the conduct of the Cloetesville High School Governing Body in the filling of this vacancy amounts to an unfair labour practice as defined by the Labour Relations Act 6 of 1965. The two main issues that I have been asked to consider are the procedural aspects of the interviewing and nomination process and the nomination of the particular candidate, Mr Steyn over Mrs Pietersen in the light of the fact that Mr Steyn has resigned in 2002. The particular issue that I was asked to consider in this regard was whether Mr Steyn could be re-appointed in the light of section 2.3 of the Employment of Educators Act 76 of 1998 and whether preference should have been given to Mrs Pietersen in terms of section 2.3(b) of the Employment of Educators Act.

SURVEY OF THE FACTS AND EVIDENCE

4.1Mrs Pietersen testified that she was informed by Mr Rines, the Headmaster of Cloetesville High, that Mr Steyn and another teacher had resigned to go overseas. The posts were advertised in the local newspaper and upon application Mrs Pietersen was appointed in a contract position. She was of the view that she was appointed in Mr Steyn’s position because she took over his classes. However she was not aware of the level of post that Mr Steyn held. She testified that she was a dedicated and a qualified teacher with majors in economics and that her professional abilities had never been questioned. She also testified that she had returned to work just two weeks after having given birth because of her commitment and concern for her Grade 12 learners and that because of her good record at the school she reasonably expected to be appointed. She considered herself a new entrant to the profession and felt that she should be given preference above Mr Steyn who in her view had retired and could therefore not be re-appointed.

4.2Mrs Pietersen also testified that she had applied for the economics post, and that two sets of interviews were held on the day that she was called before the Governing Body - one for the economics post and one for the English post. She felt that she had been prejudiced because her interview was placed amongst the interviews for the English post. In her view this could have created confusion in minds of the panel as the requirements for the two posts are different.

4.3No witnesses were called by the Applicant. Her representative argued procedural irregularities based on the minutes of the interviews.

4.4WCED presented the evidence of Fritz Brandt. He testified that as part of the transformation process opportunity was given to people who wanted to leave and that this category of person cannot re-apply for a permanent position. The other category, which he referred to as VSP or voluntary severance package, was one where the person could re-apply. He stated that if a person resigned there was no clause in the Employment of Educators Act which states that such a person could not re-apply.

ANALYSIS OF EVIDENCE AND ARGUMENT

5.1WCED argued that Section 2.3(b) of the Educators Employment Act relates only to persons who have retired and not to person who have resigned and that there is no reason why a person who had resigned could not re-apply. I must uphold this argument since there is no clause in the Educators Employment Act which prohibits the re-appointment of persons who have resigned.

5.2Mrs Pietersen herself testified that to her knowledge, Mr Steyn had resigned to go overseas. Argument from the WCED suggested that Mr Steyn had resigned and not retired and was thus entitled to re-apply. Mrs Pietersen’s testimony that her understanding and interpretation of Section 2.3 of the Educators Employment Act was that Mr Steyn’s departure should fall under this category which applies specifically to persons who have retired. In terms of this section, preference must be given to new entrants to the profession over persons who have had the opportunity of an extensive career in the profession. Clearly different rules apply to persons who have retired and to persons who have resigned. The onus should rest on Applicant to prove that Mr Steyn had in fact retired. However, in this instance, this information is within the peculiar knowledge of the WCED. Although the WCED argued and presented evidence about the different effects of resignation and retirement it did not categorically confirm or present any evidence that Mr Steyn had in fact resigned and not retired. Applicant also did not present any evidence in this regard.

5.3Applicant argued that in view of her sound record as an educator, she had a reasonable expectation that she would be appointed, and that in terms of Section 186(b) of the Labour Relations Act 66 of 1995 she should be appointed. WCED argued that a reasonable expectation is insufficient grounds to claim unfairness. I would uphold this argument. The provisions of the unfair labour practice definition only apply where the employee can show some entitlement to what she is claiming. Applicant has not done so in this case.

5.4It was argued by Applicant’s representative that the minutes were not properly kept but no evidence was led to substantiate this. The WCED submitted that the minutes handed in were correct. I examined the minutes and noted that at the meeting on the 29 March 2004 it was decided that the full Governing Body would serve on the Interviewing Committee and that a combination of consensus and point system would be used in choosing appropriate candidates. The minutes record that nine members sat on the Interview Committee. Applicant submitted that this recordal in the minutes is incorrect but did not lead any evidence to substantiate this. I cannot therefore rule that this was a deviation from agreed procedures.

5.5On the issue of consensus Applicant submitted that no motivation is provided in the minutes on how consensus was reached. It was submitted that according to Section 3.5 of the Educators Employment Act the employer must ensure that accurate records are kept of proceedings dealing with the interviews, decisions and motivations relating to the preference list submitting by school Governing bodies. I confirmed this submission by examining the minutes myself and found them to be lacking in this regard. I must therefore uphold this argument of Applicant. The WCED has submitted that the minutes are complete and correct, yet a crucial aspect of the decision making process appears to be missing. Applicant would be correct in claiming unfair treatment in this regard.

5.6The Governing Body of the Cloetesville High School is a creature of stature. They derive their powers from the relevant statutes and collective agreements. The Personnel Administration Measures (PAM) clause 3 thereof and 3.1 to 3.4 deals with the filling of vacancies. A large part of the factual and legal disputes during this arbitration centred on alleged procedural irregularities during the interviews and nomination stage.

5.7Applicant’s representative argued further that the ratification process was flawed because the procedure was ratified before the nominee attested his signature. The WCED conceded that this was incorrect procedure but argued that this deviation from procedure was not of a substantial nature to declare the process null and void. I view this deviation in a serious light particularly in view of the fact that there is no recordal on how consensus was reached for the nomination of the particular candidate. Ratification of the process cannot be regarded as a mere formality but rather as a confirmation by the Governing Body of the nomination of a particular candidate.

5.8Applicant testified that she felt that she had been prejudiced because her interview was placed amongst the interviews of the candidates of the English post and not amongst those for the Economics post which she had applied for. WCED submitted that this happened because it was expedient to slot Mrs Pietersen in with the English post candidates. However no witnesses of the Interview Committee were called to substantiate or confirm this. Applicant’s representative argued that in terms of the Educators Employment Act all Applicants must receive similar treatment. Applicant was unable to confirm during her testimony whether the questions that were put to her were the same as that put to the other candidates for the economics post. No witnesses from the Interview Committee were called in this regard so I am unable to verify whether the candidates in fact received similar treatment. I examined the minutes in this regard and notes that points were allocated for Applicant for the Economics post. It would appear that the Interview Committee was aware that Mrs Pietersen was a candidate for the Economics post. The question then is whether the more fact that her interview was placed amongst the English candidates in itself amounts to unfairness. The onus is on Applicant to prove unfairness and she has failed to discharge this onus.

5.9On the premises set out above with regard to non recordal of a crucial aspect of the decision making process and an apparent deviation from agreed procedures, and the incorrect ratification procedure, I find that the conduct of the Governing Body during the filling of this vacancy amounts to unfair labour practice as defined in section 186(2)(a) of Act 66 of 1995.

5.10Having found that the Governing Body committed an unfair labour practice, I must still decide whether their conduct is sufficiently gross so as to warrant setting aside their decision and order the repeat of the process. The repeat of the process does not automatically follow; it depends on the nature of the prejudice to the candidates and the severity of the procedural lapses.

5.11Where an aggrieved Applicant has requested compensation instead of procedural relief, it would be unnecessary for an arbitrator to order a repeat of the process.

5.12Mrs Pietersen has requested me to order repeat of the process. She did not claim compensation. I must also consider whether the rights of any third party would be infringed. The WCED has confirmed that no appointment was made for this particular post.

5.13WCED has a statutory duty to satisfy themselves that agreed upon procedures were followed. The Governing Body agreed to use a combination of the consensus system and the point system but failed to substantiate how the final decision was arrived at. WCED would not be able to make a final decision and accept the Governing Body’s recommendation as PAM Chapter B(3.4) requires WCED to satisfy themselves that agreed upon procedures were followed.

AWARD

There are sufficient grounds to order the repeat of the process and I accordingly make an award in the following terms:

6.1The Governing Body of Cloetesville High School must repeat the filling of the Economics post as advertised in the appropriate vacancy list for the post from short-listing.

6.2WCED must provide assistance to the Governing Body prior to and during the process to ensure that the relevant provisions of the Employment of Educators Act 76 of 1998, the Labour Relations Act 66 of 1995 and the South African Schools Act of 1996 are met.

6.3The repeated process must be initiated within 2 (two) months of this award, by or before the end of November 2004.

ARTHI SINGH-BHOOPCHAND

ARBITRATOR

DATE: 29 SEPTEMBER 2004

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER / PSES PSES 185-04/05 WC
APPLICANT / R D PIETERSEN
RESPONDENT / DEPARTMENT OF EDUCATION
NATURE / APPOINTMENT
ARBITRATOR / ARTHI SINGH-BHOOPCHAND
DATE OF ARBITRATION / 08 SEPTEMBER 2004
VENUE / CAPE TOWN

REPRESENTATION:

APPLICANT / MR DW MEYER (SADTU)
RESPONDENT / MR R AHMED

AWARD:

There are sufficient grounds to order the repeat of the process and I accordingly make an award in the following terms:

1.The Governing Body of Cloetesville High School must repeat the filling of the Economics post as advertised in the appropriate vacancy list for the post from short-listing.

2.WCED must provide assistance to the Governing Body prior to and during the process to ensure that the relevant provisions of the Employment of Educators Act 76 of 1998, the Labour Relations Act 66 of 1995 and the South African Schools Act of 1996 are met.

3.The repeated process must be initiated within 2 (two) months of this award, by or before the end of November 2004.

DATE OF AWARD / 29 SEPTEMBER 2004