SAOU obo FOWLER vs DEPARTMENT OF EDUCATION FREE STATE PROVINCE

FORUM:ELRC

ARBITRATOR: HANS THABO NGOBENI

CASE NO: PSES 236 FS

DATE OF AWARD: 3 AUGUST 2001

The applicant had retired due to ill-health. However he was re-

appointed to a level 1 post a yr later in 1996 ito the relevant provisions in PAM. He subsequently applied for a HOD position,

was interviewed, recommended by the SGB and accepted the nomination on the 1 Oct 1997.Over a year later, the recommendation was withdrawn and the post readvertised. Following legal advice the Dept finally granted approval for promotion on the 10 Oct 2000, which date the Dept contended the applicant became a permanent employee again. The Arb held there were no justifiable grounds to delay the promotion of the applicant which must be effected retrospectively to 1 Jan 1998 and the subsequent difference in salary and costs of arb.

ARBITRATION AWARD

INTRODUCTION

The arbitration was held on the 23/07/01 at the Katleho Building in Bloemfontein. The Applicant was represented in this arbitration by hi union, the SAOU through their legal representative Mr Paul Colditz. The department was represented by Mr J P Joubert assisted by Mr F Finger.

This arbitration is to determine as to whether there was justification in delaying the promotion of the applicant to the Head of Department post at the J B M Hertzog Secondary School. It is also to consider the awarding of costs.

THE APPLICANT’S ARGUMENT

In his argument the applicant has confirmed that he retired prematurely on 30 April 1995 on the grounds of ill health. However, in 1996 the applicant was re-appointed to the post level 1. The applicant indicated that this re-appointment is in terms of the Personnel Administration Measures (PAM) as promulgated in government gazette no. 18432 of 1997. In the mentioned document in Chapter B paragraph 3 there is a definition of re-appointment. It is said that;

" ...by re-appointment it is meant any form of re-employment in a full-time or part-time capacity of an educator who has retired or has been retired on pension prematurely in terms of any of the approved measures...".

The applicant argues that at the time of re-appointment he had satisfied the measures as required since the head of department approved his re- appointment. Accordingly therefore, when in 1997 the post of head of department was advertised as per vacancy list 1/1997, the applicant applied for promotion to the post. On 1 October 1997 the applicant was recommended by the governing body. On the same day the applicant was made to sign form P015 as a confirmation of his acceptance of the nomination for recommendation for the post. This process went through the channels and all the necessary documents were signed by all relevant persons in the form of the principal, the chairperson of the panel and the district manager. It is the understanding of the applicant that the next step in the process was for the head of department to confirm the recommendation as a promotion.

On 17 November 1998 a letter was written to the principal to the effect that the recommendation had been withdrawn. In the letter mention is made of an acknowledgement of the provisions of the PAM in so far as it refers to re- appointment of educators who have retired prematurely but it (the letter) also makes reference to another provision of other candidates who comply with the requirements for appointment shall be given preference over persons who have already had an opportunity of extensive career in education.

The school governing body informed the employer that it had decided to re-advertise the post. In the interaction between the applicant and the department there was mention that the department has taken the matter for legal advice out of which additional medical reports were required. Subsequent to these interactions approval for promotion was granted on 10 October 2000.

It is the contention of the applicant that his promotion could only be made on recommendation by the governing body of the school after the interviews. It is further intimated that the employer could only decline the recommendation by the governing body if:

(a)the candidate did not comply with the requirements as determined by the Minister.

(b)the candidate was not registered or did not qualify for registration as an educator with the South African Council for Educators; or

(c)sufficient proof existed that the recommendation of the governing body was based on undue influence.

It is the contention of the applicant that at the time that he applied for promotion he was already re-appointed as a permanent employee of the employer. The applicant contends that the school management developer has no legal basis to "withdraw" the recommendation of the governing body.

At the same time it is being said by the applicant that the governing body has no legal basis to request that the post be re-advertised once it had made a recommendation of a candidate. The applicant contends that based on the fact he accepted the nomination for recommendation, he was entitled to the promotion once the employer was satisfied that the conditions as stipulated in Section 4(3) of the Employment of Educators Act.

THE DEPARTMENT'S ARGUMENT

In its submission the department accepted that indeed the applicant had retired on pension in 1995 on the grounds of ill health. It has also been confirmed by the department that the applicant was re-appointed. However, it has been contended by the department that the applicant was only appointed to the permanent position on 10 October 2000.

The department also argues that whereas the requirements were met by the applicant, sub-clause (9.2) of the vacancy list 1/1997 stipulates that;

"appointments are subject to confirmation by the department. A nominated candidate must therefore refrain from taking any steps to assume duty until he/she has been notified that the appointment has been approved".

Against this sub-clause the department has argued that it had the prerogative to deal with this matter until the sub-clause has been effected.

The department has intimated that in the process of dealing with the matter, they were advised by the governing body of the school that the post should be re- advertised. This advice was communicated to the School Management Developer on 25 August 1999. This advice formed part of the basis for the delay in the approval of the promotion. At the same time the matter was taken for legal advise. Based on the legal advice the approval was granted.

This advise from the governing body of the school it was intimated by the department that it is understood in the context of the "PAM" document which refers to the new entrants to the profession against those that have had considerable exposure in the profession. Giving consideration to this aspect of re-appointment created another basis for the delay in the approval of he promotion.

The department has also intimated that the applicant was not re-appointed in the permanent capacity by the time he was interviewed for the post in dispute. The implication of this is that in terms of policy there is a requirement for medical reports given the circumstances under which the applicant retired on pension. With this understanding it is the contention of the department that appointment and promotion by definition are the same.

ANALYSIS OF THE ARGUMENTS

In the discussion of the arguments it is important to give due attention to the meaning of re-appointment when an educator has retired to pension on the grounds of ill health. Chapter B paras 1-2 of the "PAM" in 2.1(e) defines appointments in education as "the reappointment, after a break in service, of an educator by an education department".

Clause 2.3 of the same paragraph goes on to give the definition of what is meant by reappointment. It is said that "By reappointment is meant any form of re-employment in a full time or part-time capacity of an educator who has retired or has been retired on pension prematurely in terms of any of the approved measures." . Such reappointment has to satisfy particular principles and that is not in dispute, in the context of these principles and the definition of appointment as per Chapter B of "PAM" it is clear to me that at the time when the applicant was re-appointed after having been retired on pension the department was convinced that the principles as required were satisfied/met. It is also clear to me that the re-appointment of the applicant was not prejudicial to the new entrants to the profession since clause 2.3(f) states that;

"the application for re-appointment of persons who have retired on pension prematurely on grounds of ill health and whose state of health has improved to such an extent that the prescribed health requirements are met shall be considered bearing in mind the principles in paragraphs (a) and (b)".

The paragraph (b) that is being referred to relates to new entrants to the profession. Clearly the department had satisfied itself that the new entrants to the profession are not prejudiced by the re-appointment of the applicant. It must be borne in mind that this re-appointment was not a once off re-appointment. Successive contracts expired and were renewed. In this arbitration the department did not present any argument to the contrary. It is therefore rejected, the argument that the delay was caused by an attempt to deal with the new entrants to the profession.

The issue of medical reports merits attention. The fact that the department had already re-appointed the applicant means that they were satisfied with the medical reports that they received or should have received. No argument was presented that supports the need for additional medical requirements with specific reference to this post. The applicant was already in the system and having satisfied the medical requirements. The argument of the department around medical reports is dismissed.

Let us give attention to the advice that the department had received in relation to the re-advertising of the post. It is being argued by the department that such advice was received from the governing body of the school. Whereas this is true, it is important that a closer look be given to the time frames. The letter to the effect that the post be re-advertised was only written on 25/08/1999. It must be borne in mind that as early as 17/11/1998 there was already a recommendation from the School Management Developer to withdraw the recommendation of the applicant by the governing body. Such a letter to withdraw the recommendation of the applicant was written on the 10/06/1998.

It is clear to me that the letter from the governing body came as a result of frustration. The applicant was recommended on 01/10/97. The last signature was appended by the district manager on 28/10/97. Chapter B (3.4)(b) of the "PAM" document states that;

"the employer will inform all unsuccessful candidates, in writing, within eight weeks of an appointment being made".

It was therefore expected of the department to have communicated with the applicant within eight weeks since the argument of the department presupposes that there was no successful candidate. It is rejected that it took the department over six months to respond to the applicant and clarify the state of affairs.

The School Management Developer (SMD) that is being referred to by the department and his recommendation merit attention. The Form P014 in its section on persons that have done the shortlist has two SMD’s. The logical deduction is that once they have done the shortlist then they have confidence that the short-listed candidates shall compete fairly and without prejudice to one another and the department. You cannot shortlist for purposes of making up the numbers. I do not want to believe that it was the case, I believe that the shortlist was done objectively and with the interest of education as required by the "PAM" document. The question that remains unanswered is how does the SMD become part of the short listing committee and when a short listed candidate competes fairly and "defeat" others, the same SMD begins to question the recommendation. The broader question is what is this SMD having up his sleeves? If it is the interest of education at heart he had an opportunity during short-listing to see those interest through.

The department has not presented any argument to the effect that the principal and the district manager signed the Form P014 under duress. In that regard the SMD got concerned with the process that was already out of his competency needless to say that he has no legal standing to recommend the withdrawal of the recommended candidate. On this aspect, I will agree with the applicant and dismiss the argument of the department that the delay was as a result of the advice from the governing body. In fact the advice did not come from the governing body but from the SMD. The department saw it fit to deal with the advice from one of its officials rather than the applicant.

This brings to the fore the role of the Head of Department (HOD). Section 6(3)(b) of the Employment of Educators Act is clear on the circumstances under which the HOD can decline a recommendation. The HOD became concerned with what he is not supposed to be concerned with and that whether new entrants were given an opportunity or not. This is on the bad advice from the SMD. At this time the HOD had a recommended candidate in front of him. His role was to consider as to whether the requirements of section 6 (3)(b) have been met and once he has satisfied himself that they have been then effect the promotion. At no stage is he required to look at the merits of the recommendation. From the arguments of the department there is no indication that the requirements of section 6(3)(b) were not met. Neither is there an argument that even the section 7(1) requirements were not met.

The appointment of educators including the applicant is in the hands of the HOD. It is clear that this gives the HOD discretionary powers. These powers are not executed in a vacuum. They are also not executed arbitrarily. Section 6(3)(b) becomes significant in this regard. This section gives guidance as to the manner of executing the powers to appoint.

The applicant was already in the system when he applied for this post. It is inconceivable how the department wants to define appointment and promotion as the same. In any employment you cannot be continuously appointed when even your appointment has to take form of a promotion and accordingly therefore be termed a promotion.

If the department had followed its policies as stipulated then there was no need for legal advice on the matter.

DETERMINATION

(a)there are no justifiable grounds to delay the promotion of the applicant. The promotion whereas effected in October 2000 has to be effected retrospectively to 01 January 1998.

(b)the compensation that accrues out of this retrospective date must be calculated as the difference between the post level one and post level two for the same period up to the date when the applicant took up the post.

(c)the department must pay the legal costs of the applicant for this process only. Such costs shall be defined as professional fees only.

HANS THABO NGOBENI.

ARBITRATOR

03 AUGUST 2001.