8

DOLO vs DEPARTMENT OF EDUCATION GAUTENG

FORUM : ELRC

ARBITRATOR : M DOLLIE

CASE NO : IMSSA GAAR 4137

DATE : 10 OCTOBER 2000

Interview

- Applicant was asked question relating to past attendance of meetings but not posed to other applicants. Not unfair per se. Applicants must be treated similarly, not exactly the same.

- obligation of SGB fulfilled by inviting unions. Their failure to arrive does not vitiate proceedings

Employer's Discretion

- Even though Applicant better qualified and more experienced, completely within SGB's discretion to decide whom to recommend based on performance in interview.

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ARBITRATION AWARD

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HEARING AND REPRESENTATION

The hearing was concluded at the Department of Education Offices at 111 Commissioner Street Johannesburg on the 3rd and 4th of August and on the 26th September 2000. The applicant was represented by Mr Venter an attorney in private practice. The respondent was represented by Mr Thipe of the Gauteng Department of Education.

ISSUE AND POWERS

The issue to be decided on was whether the applicant was treated fairly during the recruitment process of a post that she had applied for. If it is found that the process was indeed unfair to the applicant, the applicant seeks an order setting aside the appointment of the current incumbent to the post. The respondent argues that if the process of appointment was fair and that in appointing the current incumbent the respondent followed all the correct procedures, it seeks to uphold the appointment.

My power is to hear the evidence presented and the arguments advanced for either party and make a decision with regard to the appointment process of the current incumbent in relation to the unfairness of the conduct as claimed by the applicant.

I am not empowered to visit the appointment process of the current incumbent to the post per se but only as it relates to the applicant in this case. Further, should I indeed find that the applicant was treated unfairly, my power will extend to the point that I may order that the recruitment process be redone. If however, I find that the process of appointment was fair in all material respects in relation to the way in which the applicant was treated, I may order that the status quo will remain and the current incumbent will not be affected thereby.

BACKGROUND TO THE CASE

The applicant applied for a post of Deputy Principal at the school she was assigned to. Her application was received, shortlisted and she was interviewed. The applicant argues that certain irregularities presented itself during the recruitment process and therefore she was not appointed to the post of Deputy Principal. Further the process of appointment as prescribed by circular 5 of 1999 was not followed and the substantive decision to appoint the current incumbent to the post above, the applicant was substantively flawed.

The substantive irregularities included:

· The respondent not applying the Employment Equity Act.

· The allegation that applicant was prejudiced by the manner in which questions were put to her and the way in which her responses were received by members of the interview panel.

· The allegation that all applicants for the post did not receive similar treatment during the interview.

· The respondent not applying its mind to the matter from circular 5 of 1999.

The following procedural errors, it is argued, were made:

· The unions were not a party to the recruitment process and were not invited either.

· The interviewing committees did not submit its recommendations to the School Governing Body.

· The SGB did not submit is recommendations to the Department.

· There were errors in the appointment of the selection committee members and the chairperson of the selection committee.

The respondent argues that the post was advertised the applicant applied, was shortlisted as a candidate and interviewed. The panel for shortlisting and recruitment was properly constituted and all parties were invited to the process. The interviews were conducted, recommendations were made and a candidate was appointed.

Further that the requirements for the filling of a deputy principal post was fulfilled, the interview panel was properly constituted, the procedures of circular 5 of 1999 were followed and the legal obligations of the department were fulfilled.

SURVEY OF EVIDENCE PRESENTED

EVIDENCE FOR THE APPLICANT

The applicant, Ms S C Dolo testified, that she has been working since 1969, that she acted as a Deputy Principal from 1985 to 1996 and as a principal from 1996 to 1997. She applied for the post of Deputy Principal in February of 1999 and till the shortlisting process did not have any problems.

The first error that occurred was that the district officer and union representatives were not part of the interview panel and she was thus prejudiced by their absence.

Secondly, the principal, during the questioning process would nod his head when her answers were provided, thereby intimidating the applicant which happened numerous times during the interview.

Thirdly, she was asked irrelevant questions about meeting parents, even though the principal knew that certain problems had been experienced in respect of this topic in the past. She felt humiliated because she taught the very parents whose children she is now teaching.

In her opinion the applicant claims that she was a better candidate than the incumbent of the post, that she had expected to be recommended and that she had more experience than the successful incumbent.

With regard to circular 5 of 1999 the applicant alleges that she was only made aware of the circular through the interventions of her representative and was thus not aware of the conditions prescribed therein.

Under cross examination the allegation was that she was asked personal questions about conflict management, whether she would be prepared to attend parents meetings and which pet name she would like to be called by.

According to the applicant the principal knew of a problem the applicant had with regard to attending parents meetings and thus the question was of a personal nature. It was not of a personal nature per se.

It was also confirmed with the applicant that interviews for the post were held on the 13th March 1999. The applicant had consulted with her attorney after she was informed of the outcome of the interviews in an undated letter. However, she was verbally told that she was not the successful candidate on the 15th March 1999. On the 6th April 1999 the applicant claimed that she had become aware of the irregularities, and not before that.

The applicant also claimed that she was informed by Ms Morake and Mr Mthimkulu that the incumbent was given better treatment than her. Mr Mthimkulu, it was established, was not part of the interview panel.

The applicant also said that she was not aware of circular 5 of 1999 prior to the 12th April 1999. Circular 5 contained amongst others, a dispute resolution mechanism to challenge any appointments. It was also established that the applicant had signed for the vacancy list to which circular 5 of 1999 was attached, and therefore it was concluded that she should have had knowledge of its existence.

On the opinion that the applicant holds that she was better qualified than the incumbent, it was not shown that the incumbent did not fulfil the minimum requirements of the position.

On the non-attendance of the unions, it was established that the unions were invited to attend the recruitment process. Their non-attendance does not invalidate the process, to which the applicant agreed. Furthermore their role would be as observers, they are non-active participants when they do decide to attend.

It was also established that the attendance of the departmental representative is subject to the request of the SGB. In this case there was nothing compelling the SGB to request a representative of the Department.

Under re-examination the applicant was tested on the wording of provision 3.2.1(a) of circular 5 of 1999. The wording “shall comprise of …” indicated to her that the process cannot go on without the presence of the persons mentioned therein, meaning the union representative and the departmental representative.

The fact that the applicant heard on the 15th March 1999 that she was not the successful candidate was according to her knowledge based on rumours and she could not institute a dispute process based on such rumours. It is the evidence of the applicant that she was officially informed on the 1st April 1999 and then took action on the 6th April 1999.

Ms Morake was the second witness for the applicant. She was a member of the SGB since 1995 and a part of the interview panel. The witness stated that the two candidates were not treated the same, meaning the applicant and the incumbent.

Further, the applicant was asked questions of a personal nature that was not asked of the other candidates.

The witness also pointed out two irregularities. Firstly, that the interview and recommendation process was completed on one day and secondly that the SGB was not the one to recommend, the interview panel recommended which was an irregular step, as the SGB did not choose an interview committee.

The witness stated that in her personal opinion the applicant was the better candidate however, she could not motivate that under cross examination.

The question about the witness’ role was addressed under cross examination. She stated that she was an ordinary member of the SGB. The respondent disagreed, saying that she had been appointed as the secretary as the previous secretary had left.

The witness confirmed that at a meeting on the 3rd March 2000, it was decided that the entire SGB would be part of the recruitment process.

According to the witness a member of the SGB, Mr Mthimkulu, was excluded from the interview process. The witness stated that Mr Modia, another member of the panel had stated that there cannot be two educators on the panel.

The question on the attendance of the unions and/or the department representative, was clarified by the witness that Mr Mahlatse and Mr Modia would take the responsibility of informing them about the meeting. However, they had failed to arrive for the shortlisting meeting and the interview process.

About the interview process the witness stated that the two female candidates, namely the applicant and the incumbent in the post were asked different sets of questions from all other applicants.

Further, the process was not recorded.

The witness stated that only the principal had asked the questions that were objected to and she had elected to observe rather than take an active part in the process.

The witness stated that the decision to appoint was not that of the entire SGB as only five out of the eight members were present.

With regard to the recommendation of the SGB the witness claimed that her signature did not appear thereon and that the signature next to her name was not hers at all. It was a forgery that made it look like she had signed the forms.

Evidence was also presented in affidavit form from the witness with specimens of her signature. That was materially different to the one that appeared on the recommendation to the department.

The third witness for the applicant was Mr Mthimkulu who represented the teacher component on the SGB. Mr Mthimkulu stated that he was chased away from the shortlisting process by the chairperson and deputy chairperson of the SGB and he did not attend the interview process. On inquiring after this he stated that he was told a decision was taken to exclude him.

Under cross-examination the witness said that Ms Moloisane, another member of the SGB was the secretary of the SGB and that she had taken minutes of the meetings however, they were not presented. After she had left no-one had taken the minutes and this concern was raised.

The witness was also questioned on the issuing of circulars and stated that he wanted copies of the circulars governing the recruitment process. He said that since the new principal had arrived he never circulated any information. He recalled that the only time a circular was distributed was on the redeployment issue and then only selected information was distributed. The witness confirmed that he had, had knowledge of circular 5 of 1999 prior to the preparatory meeting of this recruitment process.

The witness confirmed that the entire SGB would be part of the shortlisting process however, was chased away without a valid reason being given. This was not reported to the staff or taken up with any other forum, by the witness.

At the preparatory meeting, prior to the shortlisting process, the witness stated that he had knowledge of circular 5 of 1999, however did not bring it to the attention of the meeting as he did not see a need to.

EVIDENCE FOR THE RESPONDENT

Mr Ndaba, the district representative was the first witness for the respondent who said that he was called to the school once to investigate a problem. However, he knew of a general trend at the school of educators who had refused to sign circulars.

Under cross-examination the witness was asked about the complaints received from the applicant and Mr Mthimkulu. He stated that he was never called by Mr Mthimkulu.

The second witness, Mr Mashiloane, the district labour relations officer, confirmed the procedure with regard to lodging grievances pursuant to a recruitment process. The witness confirmed that the applicant did not lodge a grievance at all within the stipulated time period. If one was lodged, it would have been possible to suspend the appointment of the incumbent on the position for investigation. As it stood, the Department had followed all the prescribed procedures for appointment.