REDDY vs DEPARTMENT OF EDUCATION KWAZULU-NATAL

FORUM:ELRC

ARBITRATOR:M R CHETTY

CASE NO:PSES 149 KZN

DATE OF AWARD:12 MARCH 2001

The applicant had been nominated by the SGB for the post of Deputy Principal which post she had accepted , due to resume office in Jan 2000. There was then a litany of objections to the nominations questioning the validity of the selection process, irregularities, outside influences and dispute lodged by 2nd placed candidate. A decision was made in April 2000 to dismiss dispute and appointment was confirmed. Dept conceded that applicant was entitled to back pay on appropriate scale from 1 May 2000. Applicant believed entitled to from Jan. The Arbitrator held that if Dept could have determined that objections were malicious, frivolous and baseless and failed to dismiss them immediately, it would be liable. However, serious allegations of procedural irregularities were raised and the Dept acted in a responsible and impartial manner by investigating the issues at the earliest opportunity. Arb ruled Dept liable for back pay from 1 May 2000 to be paid within 1 month.

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ARBITRATION AWARD

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INTRODUCTION

The Applicant, Mrs S D Reddy, is an educator as defined in the Educators Employment Act and is presently employed as the Deputy Principal of Brookdale Secondary, in Phoenix, North Durban region. Mr I Pillay of SADTU represented the applicant in these proceedings held at Durban College of Education on 5 March 2001. The Respondent was represented by Mr V I Ngidi, assisted by Ms N G Maphumulo.

The Union referred the dispute to arbitration citing that the “Incumbent (S D Reddy) to the post is being unfairly discriminated against. SGB deliberately breached confidentiality to exclude person nominated by interview committee. Department’s refusal to implement Dispute Resolution Committee decision Brookdale Secondary, Deputy Principal Post No: 1091, 1997 Promotions List.” When this matter was referred to conciliation on 19 February 2001 under the auspices of the Education Labour Relations Council an agreement was concluded between the parties recording that whereas a dispute had been declared by the Union on behalf of Mrs S D Reddy, the Department of Education granted to her the disputed post of Deputy Principal of Brookdale Secondary, Phoenix, North Durban. It was further agreed between the parties that the only issue, which would be referred to arbitration, was whether the granting of the post should be made retrospective to January 2000, which respect to the salary and re-grading of the Applicant. The parties agreed that the matter would be disposed of without the leading of evidence. The parties argued off the documentation presented to me.

THE FACTS

It is common cause that the applicant applied for the post of Deputy-Principal at Brookdale Secondary in terms of the various posts, which became available in the 1997 promotions process. Although the post originated in 1997, interviews were only held in November 1997 until the disputed appointment of the principal could be resolved. On 25 November 1999 the applicant was placed first on the list of short listed applicants as well as being the preferred nominee of the Staff Selection Committee of the Brookdale Secondary School Governing Body. She received a score of 35 as compared to her nearest rival Mr D Vandayar, with a score of 32. The Applicant was then formally offered the position of Deputy-Principal as per Form EC7 on 25 November 1999. The next day the applicant recorded her acceptance in writing. All thins being equal, it was common cause between the parties that the applicant would have assumed her new role as from January 2000. It was not disputed that the applicant for year’s prior hereto had in fact been acting as Deputy-Principal of the school. I should also point out that I accepting the nomination of the SGB, the applicant accepted that she “acknowledged that this nomination is made without prejudice as the final approval rests with the Secretary of Education in terms of the amendment of Section 4(1), (2) and (3) of the Educator’s Employment Act No 138 of 1994 as reflected in schedule 2 of the South African Schools Act No 84 of 1996.”

What followed the acceptance of the nomination can best be described as a litany of objections to the nomination. First, even before the nomination could be formally accepted, the Secretary of the SGB, Mr R Tekalal, submitted a letter dated 10 November 1999 contending that the process and the nomination of the applicant was a “farce” and tarnished the name of the school, and should accordingly be set aside. In support of his vie, Tekalal refers to a meeting of the SGB on 28 October 1999, which questioned the validity of the selection process. Tekalal was not a short listed candidate for the post. Second was the letter of objection from Mrs L Naidoo dated November 1999. Naidoo submitter her letter of objection in her capacity as the Chairperson of the Staff Selection Committee, citing irregularities such as the missing Curriculum Vitae, absence of minutes from the interviews and the absence of Union observers at the process. What I find most curious about Naidoo’s letter is that in the same month, on 25 November 1999 she signed two documents, the EC4 and EC6, reflecting that the applicant was the highest scorer and that she was the preferred candidate. An APEK observer signed both documents, while another Union representative apparently only signed one document, the EC6.

Third, on 27 November 1999 a letter of objection was received from concerned Members of the SGB, including Messrs Becho, S Govender, Samigan, Tekalal, L Naidoo and R Gopal. In their letter, the group suggests that persons outside the school where informed who the successful candidate would be long before the process was completed. It appeared that there was discord between the Staff Selection Committee and the SGB regarding the interviews and scoring. There was also a discrepancy regarding the minutes of the interviews and the chairperson suggested that the process be declared null and void. Fourth, on 1 December 1999 the Chairperson of the Selection Committee Mrs L Naidoo queried why an Ms R Rohit was allowed to sit in on the process as an observer as her husband was one of the applicants for the post. Fifth, a letter from Mr R Samigan on behalf of the concerned members of the SGB was received on 13 December 1999. This letter again refers to a host of allegations, including that the applicant persuaded the chairperson if the Selection Committee to issue a statement confirming that the process was free and fair.

Lastly, Mr Vandayar who scored second behind the applicant following the interviews declared a dispute alleging that the process was a farce and the outcome of the selection had been predetermined. Finally on receipt of all the objections, the department put in place the necessary prerequisites for an investigation. As a result of the school holidays, the investigation was conducted early in 2000 after which a Mrs A Naicker on behalf of the Superintendent of Education advised in writing on 19 April 2000 that the dispute lodged by Mr Vandayar be dismissed. At a meeting of the Dispute Resolution committee on 25 May 2000 it was determined that the dispute by Vandayar was dismissed and that the motion of Mrs A Naicker be upheld. The DRC further dismissed the complainant by the SGB on the grounds that the SGB itself could not declare a dispute. The parties advised me that the DRC was a sub-committee of the ELRC and that during the course of 2000 a moratorium was issued terminating the DRC’s capacity to resolve disputes. The Department in its argument conceded that the Applicant ought to have been appointed at the earliest in May 2000 and further conceded that her salary and re-grading should be made retrospective to May 2000. As such, the only remaining issue of dispute between the parties was whether the applicant was entitled to back pay on the salary scale of a Deputy Principal for the period January to April 2000. It is common cause that a host of objections clouded the appointment of the applicant as deputy principal. The Department contends that it was unable to act on the recommendation of the Selection Committee until all other disputes were resolved.

In order to determine whether the applicant is entitled to the back pay for the period of January-April 2000, one must determine whether the Department, ex facie (on the face of) the documents, could have determined that the objections were malicious, frivolous and without any foundation whatsoever. If the Department could have done so, but failed to dismissed the objections without further delay, then the Department would be liable for any prejudice suffered by the applicant as a result of the delay in assuming her post.

On the basis of the facts and documents presented to me, it appears that the flow of objections to the applicant’s promotion began even before her acceptance of the nomination. Although all the objections were dismissed, I am unaware of the reasons therefore. It is apparent that serious allegations of procedural irregularity were raised in all the objections. I should record that neither party to these proceedings placed before me the written recommendation by the School Governing Body in respect of the appointment of the Applicant, as contemplated in section 20 of the Schools Act. I accept however that this must have been done at some stage. After considering all the facts before me, I therefore conclude that it was not possible for the Department to dismiss as frivolous the objections that had been lodged. To do so would have been to act in a manner contrary to the right to just administrative action. The Department acted in a responsible and impartial manner and investigated the issue at the earliest opportunity. The investigation results were placed before the DRC, which subsequently dismissed the objections. In the circumstances, the Department acted in a reasonable manner and its approach cannot be faulted. The delays, which occurred, were not due to the act or omissions of the Department. To the extent that the applicant has suffered prejudice in not receiving full back pay to January 2000, the Applicant has a right in civil law against any or all of the objectors. The Department cannot be held liable for the loss suffered.

In the premises, I make the following Order:

1.The Respondent is ordered to pay to the applicant her salary as Deputy Principal with retrospective effect to May 2000, together with all benefits accruing to the position.

2. The amounts referred to in (1) are to be paid within one month of the date hereof.

DATED AT Durban this the 12th day of March 2001.

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M R CHETTY

ARBITRATOR