1
XABA vs DEPARTMENT OF EDUCATION FREE STATE
FORUM:ELRC
ARBITRATOR:ADV O MOSHEBI
CASE NO:PSES 1057 FS
DATE :15 MARCH 2002
Applicant had applied for a post which required a secondary school diploma with Science and Biology. Despite not having the above, the SGB recommended the applicant. The Arbitrator held the Dept was correct in not appointing the applicant because he did not have the minimum requirements. In terms of the Employment of Educators Act, the HOD can accept or decline the nomination on certain grounds. Application dismissed.
______
ARBITRATION AWARD
______
1.DETAILS OF THE HEARING AND REPRESENTATIONS:
Ms P N Xaba was represented by Mr Duma of SADTU.
Mr Tukani was representing the Employer (i.e. Department of Education – Free State).
Employer’s witnesses: Mr Mtakati (SMD)
Manyoni (Deputy Chairperson of SGB)
2.ISSUES TO BE DETERMINED:
Whether the appointment (or post) was procedurally done or not done.
3.THE APPLICANT’S STATEMENT UNDER OATH:
The Applicant testified that she was temporarily employed at the Sindekile Intermediate School.
The Applicant testified that their post was advertised and she also applied for that post.
The Applicant testified that his post was advertised, demanding the educator who has Secondary Teachers Diploma, and who has studied or major with Biology and Physical Science.
The Applicant testified that he applied for that vacancy post, interviews procedures were conducted.
The Applicant testified that the School Principal, Mr Mofokeng promised the Applicant that the Applicant will be employed by the Department of Education on full-time basis, because the Applicant was already teaching in the Naledi Ya Botjhabela Secondary School on the temporary basis. The Applicant testified that Mr Mofokeng (Naledi ya Botjhabela Secondary School Principal) also wrote a letter (ANNEXURE “A”) to District Manager recommending the Applicant to be offered that position.
Furthermore, the Applicant testified that even the school Governing Body of the Naledi ya Botjhabela Secondary School recommended him to be employed for that position that need an educator who has Secondary Teachers Diploma and who has Biology and Physical Science in their qualifications.
The Applicant testified that even though he does not have Secondary Teachers Diploma as a pre-requisite he maintain that he will be capable to teach Grade 10 – 12.
4.THE RESPONDENT’S STATEMENT UNDER OATH:
The Respondent testified that the procedure was correctly followed when termination the services of the Applicant. The Respondent testified that the Applicant was aware that he (Applicant) was temporarily employed at Naledi ya Botjhabela Secondary School.
The Respondent testified that the Applicant had to renew his employment contract on a regular basis – in 1997 he was temporarily employed from October to December, and 1998 from June to December, and lastly the Applicant was employed from January to December 1999, therefore, the Applicant worked for the Department of Education for one (1) year eight (8) months on a temporarily basis.
The Respondent testified that the Applicant only obtained his Primary Teachers Diploma (PTD) in 1998 January, 01, from the Department of Education Employment Records.
The Respondent testified that the Applicant qualifications only allows him (Applicant) to teach at Primary Schools only, not at Secondary Schools.
The Respondent testified that for the Applicant to teach at Secondary School such as Naledi ya Botjhabela Secondary School, the Applicant should have Secondary Teachers Diploma.
The Respondent witness testified that his predecessor was the one who employed the Applicant, therefore, the witness testified that he got the Applicant at Naledi ya Botjhabela Secondary School when the witness (Mr Mofokeng) took the principal post of the school.
The Respondent witness testified that since the Applicant and another person were not qualified candidate for the positions they were holding because of not having proper qualifications, their posts were equally advertised by the Department of Education in Free State Province, not only at their schools.
The Respondent testified that some Educators (including the applicant) from outside Naledi ya Botjhabela Secondary School applied and the filling in of post procedures was followed as required by the Department of Education policies.
The Respondent testified that SGB (School Governing Body) made recommendations for the Applicant to be employed, their reasons was because the Applicant did serve Naledi ya Botjhabela Secondary School faithfully and with commitment, and the Applicant performance was excellent, even though there was more qualified candidates than the Applicant.
The Respondent testified that the SGB overlook the vacancy qualification requirements because the post needed the following:
An Educator who can teach Grade 10 – 12 at Secondary School.
An Educator who had majored or who have specialised in Biology and Physical Science subject at their Education Training College.
As explained earlier, the Respondent testified that the Applicant does not qualify for that post because the Applicant:
Does not have Secondary Teachers Diploma as required.
The Applicant has not teach any Grade 10 – 12 (no experience of those grades).
The Applicant only have Biology, not Physical Science at his Primary Teachers Diploma.
The Respondent testified that after the Naledi ya Botjhabela Secondary School made those recommendations to the Head of Education Department, recommending the Applicant, that he (Applicant) should be employed to the above mentioned post – The Human Resources Directorate of Free State Department of Education wrote a fax dated 2000/01/20 (ANNEXURE “B”) demanding a clarification, questioning the recommendations made by SGB, because they wanted to be clarified why the SGB wanted to employ a person who does not have proper and required secondary teachers diploma.
The Respondent witness testified from his letter (dated 2000/01/25) – ANNEXURE “A”) that he only made recommendations not instructing the Department of Education.
The Respondent witness testified that from the same letter (ANNEXURE “A”) recommended the second choice who has subjects that was Biology and Physical Science (ANNEXURE “C” & “D”).
The Respondent testified that it was the Head of Education Department who appoint educators not SGB or not a school principal. The SGB function is to recommend and their recommendation can be accepted or declined by the Head of Education.
5.ANALYSIS OF EVIDENCE AND ARGUMENT:
The Applicant was aware that he was temporarily employed and he (Applicant) knew that he cannot teach secondary school while he does not have proper secondary qualifications.
The Applicant do agree that he has primary Teachers Diploma not Secondary Teachers Diploma.
The Employer (Department of Education) has acted both lawful and fair, all employees have the right to be treat fairly by their Employers. This right is now entrenched in the South African Constitution Act 108 of 1996, Section 23.
Under the Common Law and the 1995 Labour Relations Act, states that Employers (including Department of Education: Free State) had a free hand in deciding who to appoint, subject only to statutory qualifications for particular jobs, furthermore, the Applicant could not rely on the claim of legitimate expectation of appointment, as the doctrine of legitimate expectation conferred only procedural rights and the Applicant had been treated fairly throughout the selection process.
Swanepoel v/s Western Region District Council and another (1998) 9 BLLR 987 (SE). The Applicant application was dismissed with costs by Labour Court.
According to the Employment of Educators Act 76 of 1998, PAM Chapter 13, paragraph 3 (3.4) (b). The Department of Education (Employer) did inform all unsuccessful candidates in writing, within eight weeks of an appointment being made. In this instance the Applicant was also informed and reasons were given that he (Applicant) does not have the required Secondary Teachers Diploma qualification in order for him (Applicant) to teach at Secondary School.
It is clear from Employment of Educators Act 76 of 1998, Chapter 2: Section 2(1) states that no person shall be appointed as an Educator either in a permanent or temporary unless he (Applicant) is in possession of an approved qualification.
Finally powers of Employers (i.e. Department of Education: Free State) states that the appointment of any person in the service of a provincial Department of Education shall be made by the Head of Department (Employment of Educators Act 76 of 1998, Chapter 3, Section 6(i)(b)).
SGB can only make recommendations and the Head of Department have a right to decline or to accept the recommendation (EEC 76 of 1998, Section 6(3)(a)(b)).
Therefore, I dismiss the Applicant demand of being re-appointed as an educator at Naledi ya Botjhabela Secondary School.
ADV OUPA MOSHEBI
ARBITRATOR