MULLER vs DEPARTMENT OF EDUCATION WESTERN CAPE

FORUM : ELRC

ARBITRATOR : WENDY PRINS

CASE NO : PSES 524 WC
DATE : 3 SEPTEMBER 2001
Recommendation by SGB

- The SGB misdirected itself, the Applicant claimed, in recommending someone who did not meet a specified criterion.

- Applicant mistaken in taking this criteria to be" having taught grade 12 before" as opposed to "being qualified" to do so.

Interview

- Applicant applied for 2 identical posts at school but only interviewed for one. No prejudice in avoiding duplication.

______

ARBITRATION AWARD

______

DETAILS OF HEARING AND REPRESENTATION

The matter was arbitrated on 20 August 2001 at the offices of the Education Labour Relations Council in Goodwood. The grievant, Ms Muller, was represented by Mr Melikhaya Vanqa of the South African Democratic Teachers Union whilst Mr K Peterson and Ms J Bergsted represented the WCED.

THE DISPUTE

Ms Muller, a teacher at Rosendaal Secondary School applied for two Deputy Principal positions at the school during 1988. She was unsuccessful and declared a dispute, alleging an unfair labour practice.

It was common cause that two positions were advertised in vacancy list 4 of 1998, posts 0737 and 0738. It was also not disputed that the positions were identical as two Deputy Principal positions were advertised. Two candidates were nominated for the posts and as result of alleged procedural irregularities the process was repeated on 7 Marc 2001 from short listing. Ten candidates were short listed. Five candidates were interviewed for each post on 12 March. Ms Chrizelda Layman was nominated as the successful candidate for post no 0737.

Ms Muller challenged the nominations made by the Governing Body on a number of grounds which are briefly listed below in no particular order.

1. Failure to adhere to the criteria

Ms Muller alleged that the Governing Body failed to adhere to the set criteria, i.e. the successful candidate must teach grade twelve pupils, have administration skills and be bilingual. Muller alleged that the Governing Body failed to apply this criteria set out in the relevant advertisement. Muller said the nominated candidate, Ms Layman, did not fit the criteria.

Muller argued further that the Governing Body acted unfairly as it did not take into consideration the set criteria when it nominated Ms Layman. She said Layman’s personal relationship with the Chairperson of the Governing Body was the decisive consideration for this nomination.

2. Failure to adhere to a fair procedure and non-compliance with Resolution 5 of 1998. M Muller argued further that the Governing Body did not adhere to a fair procedure as she interviewed simultaneously for both posts. She said she was prejudiced thereby and this process did not comply with the provisions of Resolution 5 of 1998.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

The parties tendered oral and documentary evidence. Ms Muller said she meets the criteria more than Ms Layman. She has the potential to hold the position and performed in an Acting Principal post during 1999 at the same school. She performed all the administrative and managerial functions and displayed her leadership qualities. She received the necessary training from the Western Cape Education Department during workshops. She acted in this position for a period of nine months. The Governing Body was biased, as it declared its intention to appoint a person from outside and inside although no names were mentioned, prior to the interview process.

Ms Muller testified under oath and said Ms. Layman did not teach grade twelve and has never taught grade twelve pupils prior to her appointment. She did also not teach grade twelve pupils subsequent to her appointment. Muller said it is therefore evident that Governing Body failed to adhere to the set criteria, i.e. that a candidate must teach grade twelve and be able to perform the administrative duties. Ms Muller did say that she was not favoured with the minutes of the meeting of the Governing Body when it nominated the candidates assessed during the interview process.

The relevant minutes were handed up as evidence. It reflects that a candidate must be able to teach grade twelve and not as Muller contended, must have taught grade twelve before. Muller could not challenge this evidence. She also did not dispute the evidence by the Principal of the school, Mr Willem Fortuin. He said the candidate nominated for post 0737, did have all the specific requirements.

She holds a degree in subjects such as Geography and can teach grade twelve pupils. She also performed administrative duties during her union activities (in SADTU) outside the school milieu. It was reflected in her curriculum vitae. She performed administrative duties in a school context during positions held at a Primary School.

Muller conceded during cross – examination by Mr Petersen that she did not know the expertise of Ms Layman. She also did not see her curriculum vitae. Muller said although she had no knowledge about the expertise of Ms. Layman, she does know that Ms. Layman never performed as a senior teacher prior to her appointment. She said she interpreted the advertisement for the post to read or to mean that the person must have the experience in order to perform and hold the position. She said the advertisement meant that the person must be able to perform the functions. In her opinion a person had to have the skills already or done it before. She also admitted that she does not know what the drafters of the advertisement had in mind when they advertised the position in this manner. She interpreted the advertisement to read that a person must be able to perform the functions. This person can only perform the said function before.

I am satisfied that Muller thought the fact that she acted in a similar position before led her to belief that she had to be nominated for this position. Mr Petersen refuted her argument during cross – examination when he confronted Muller with the fact that she did not have similar expertise when she applied during 1998, as the interviews for the filing of this vacancy only took place during 2001. She acted during 1999 and admitted that this information could not have been mentioned in her curriculum vitae when she applied during 1998.

I assessed the body of evidence as set out above. I am satisfied that the Governing Body did adhere to the criteria when it nominated Ms Layman. Ms Muller conceded that she did not know Ms Layman’s expertise. She could thus not prove that Ms Layman is unable to teach grade twelve pupils. As for the administration skills, Ms Muller refused to answer during cross – examination why she thought she did qualify during 1998 when she had no hands – on experience in school administration. It proved the credibility of documentary and oral evidence tendered by the WCED that Ms Layman met the criteria set out in the advertisement. Previous experience in a similar post was not a requirement. It was also evident that Muller was aware of this fact when she applied during 1998.

Ms Muller also argued that the Governing Body generally acts improper in the execution of its functions as evidenced by the fact that it allegedly altered the marks of the daughter of Chairperson. The pupil she said failed but the marks were altered in order to ensure that the pupil pass the examination. I excluded this evidence as inadmissible as it was tendered to prove that the Governing Body generally acts improper. It cannot be tendered in order to prove that it did so when it nominated Ms Layman. Mr Vanqa withdrew also withdrew this argument.

As for the alleged irregularities during the interview process, it was common cause that the interviews were held simultaneously and six candidates attended the interviews. It was also common cause that all the candidates had the opportunity to reply to questions. Ms Muller did not dispute the fact that all candidates had to answer the same questions. Muller did dispute Mr Fortuin’s evidence that bilingualism and administration skills were tested. She confirmed however that the five questions set out in the documentary evidence were asked.

Ms Muller also said the Governing Body did not test the administrative skills of the candidates during the interview process. She said the only question asked was whether the candidates did organize a school function. She alleged that it did not pose any question related to a candidate’s ability to perform the specific administration associated with the functions of the post. She expected questions incidental to the execution of the duties associated with that of a Deputy Principal. She said the panel did not ask any questions relating to the ability to teach grade twelve pupils hence the process was irregular and must be repeated.

She was also prejudiced by the fact that the interviews for both the posts were done simultaneously.

Muller insisted that the Governing Body did not test bilingualism and the questions asked regarding the school function was not relevant to administration skills. She expected questions related to the administrative duties performed by a Deputy Principal, such as statistics and the prescribed forms of the Department of Education. She regarded those questions as relevant as it would test the ability of a candidate to function in this position. I find that previous experience in a similar position was not a requirement, hence the failure to pose the specific questions could not render the process unfair.

She said a further irregularity during the process was the simultaneous interviews. She applies for two posts and should have been tested separately. She said she was prejudice but did not elaborate on the nature of the prejudice suffered. She admitted receipt a letter prior to the interview process in which she was informed that she would be interviewed for both posts. Fortuin also confirmed that candidates were orally informed of the interviews. He said no candidate objected prior or during the interviews.

Muller did not dispute the evidence by Fortuin. He said the unions and Circuit Manager agreed to this process, as the two were identical. The candidates, including Muller, did not object. I am satisfied that Muller and all the candidates tacitly agreed to this arrangement. I also examined the reasons advanced by the Governing Body. Ms Muller admitted that the posts were identical and I cannot find that the process was irregular, for this reason only. The process followed was rationally connected to the purpose, to interview candidates for identical posts. The two posts were identical and had the same criteria. Muller did not dispute the evidence placed before me, i.e. that each candidate were pose five questions during a session of thirty minutes. She admitted that she received the opportunity in addition to the five questions to raise any question or to add any information she regarded as important, to the panel. Fortuin also said she was tested in both languages and bilingualism was therefore tested. Ms Muller did not dispute Fortuin’s evidence that she in particular made use of the opportunity to sell herself to the Governing Body. She also did not raise any complains during the interview process.

I could not find any factual basis for Mr Vanqa’s argument that the interview process did not comply with the procedures set out in Resolution 5 of 1998. The specific resolution, par 3.3 to 3.11 contains no provision that outlaws simultaneous interviews. Ms Muller could also not show any prejudice nor could she prove that the Governing Body acted unfairly during the interview and nominations process.

In the premises, I find that Ms Muller has failed to establish an unfair labour practice.

Ms Muller raised the fact that she also disputes the nomination for post no 0738 when Mr Petersen questioned the fact that she only disputes the nomination for one post during his closing arguments. I informed her that I am unable to make any finding regarding the filing of this vacancy without evidence. She also outlined the basis of the dispute at the hearing and did not mention at any stage that she disputed the filling of this vacancy. She said it was set out in the referral Form E1. Clause 3.3 of the form does not specify any post it reads “criteria not met by nominee” in the singular. I am therefore satisfied that Ms Muller did not dispute the filling of this vacancy.

Wendy Prins

3 September 2001