1
SADTU obo MEYER vs DEPARTMENT OF EDUCATION WESTERN CAPE
FORUM :ELRC
ARBITRATOR:J W McCAHEY
CASE NO lPSES 408-03/04 WC
DATE:19 NOVEMBER 2003
The applicant had been nominated by the Interviewing Committee (IC) but rejected by the SGB. The position was readvertised and the applicant was unsuccessful. He alleged unfair discrimination and that 2nd selection process was a sham because decision had already been made. The Arbitrator found that although the SGB is entitled to change the decision of the IC, he found that the 2nd interview was flawed. He ordered the process to be redone from the interview stage. A new SGB had already been appointed so there could be no further prejudice.
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ARBITRATION AWARD
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1.
DETAILS OF HEARING AND REPRESENTATION
The arbitration hearing took place in the offices of the Bargaining Council in Cape Town on the 19 November 2003. The Western Cape Department of Education (‘the Department’) was represented by Ms C Julies. The Union SADTU acting obo Mr W Meyer (‘Meyer’) was represented by Mr N Isaacs.
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BACKGROUND
2.1Meyer applied for the position of Deputy Head of Arcadia High School. He was interviewed for the position and was scored by the Interviewing Committee (‘IC’) as the most suitable candidate. The Governing Body (‘GB’) did not accept this recommendation and the position was re-advertised. Meyer again applied but was unsuccessful. He believes this to be unfair as :
2.1.1The GB had no right not to accept the recommendation of the IC.
2.1.2The reason the GB rejected his nomination was that they wanted an internal candidate. This was unfair discrimination.
2.1.3The second selection process was a sham, his application was not taken seriously as a decision had already been made.
2.2He wants me as the Arbitrator to instruct the GB to appoint him as Deputy Principal.
3.
ISSUE TO BE DECIDED
I must decide if the Employer’s conduct in relation to the above was unfair as is envisaged in Section 186(2)(a) of the Labour Relations Act.
4.
DETAILS OF EVIDENCE AND ARGUMENT LED
4.1The Applicant’s case:
4.1.1Meyer testified that he applied for the post of Deputy Head of Arcadia High School. He was a Department Head of West Ridge High School. He was interviewed by the IC and gained the highest score. Mr White an internal candidate gained the second highest score.
4.1.2The IC recommended to the GB that he be selected. It was a unanimous decision. However the GB including members of the IC who had been persuaded to change their minds felt that an internal candidate should be appointed. Mr Mocke (‘Mocke’) the Principal then decided to recommend to the Department that the post be re-advertised.
4.1.3This was done and he re-applied. He was not properly informed of the interview. At the interview three of the panel were talking while he was giving his answers to questions. They had already scored him even though he was still being interviewed. Mr White (‘White’) an internal candidate was selected. White’s interview was 50 minutes his was only twenty minutes.
4.1.4He felt that in terms of Section 3.9 of the rules the GB did not have the right to change the IC recommendation. This clause reads as follows :
“At the conclusion of the interviews the IC shall rank the candidates in order of preference, together with a brief motivation and submit this to the school GB for their recommendation to the relevant employing department.”
4.1.5Clause 3.10 reads as follows :
“The GB must submit their recommendations to the provincial education department in their order of preference”.
4.1.6He interprets this as the GB having no power to change the recommendation of the IC.
4.1.7The criteria of an internal candidate were not stipulated and were unfair in terms of Chapter 10 of the Constitution, which requires fairness.
4.1.8He wanted me to rule that he should be given the job.
4.1.9Under cross-examination he testified that:
4.1.9.1He was never informed that he would get the job.
4.1.9.2He believed that he who got the most marks got the post.
4.1.9.3He could see nothing in 3.9 which says that the GB cannot change the recommendation of the IC.
4.2The Respondent’s case:
4.2.1Mocke testified that he was the Principal of the school. He felt the first process was fair and that Meyer should have got the job. The reason that he did not push for this with the GB, was that it would have led to a severe reaction from parents, pupils and staff (‘Die skool sou brand’). They wanted an internal candidate. In the circumstances he informed the Department that he felt the job should be re-advertised, they agreed and this was done.
4.2.2The second process was not a fair process. One of the GB members (named) [sic] wrote to the Department stating that she was embarrassed, as members of the IC were talking and had rated Meyer before his interview had finished. He felt the second process to be a sham. Meyer should have been appointed and the second process should not have taken place, this despite the fact that he recommended it to take place.
4.2.3He felt this would be unfair on Mr White but as the Department was at fault they should just write him a letter explaining the problem.
4.2.4White testified that he was the successful candidate. He felt the process of his selection had been fair and he had been told by the GB that he was nominated for the post. If Meyer now got the job he would declare a dispute, as it would be unfair. He was also a member of SADTU and would expect them to represent him.
5.
ANALYSIS OF EVIDENCE AND ARGUMENT
I will deal with this in terms of the allegations of unfairness alleged in the opening statement of the Union :
5.1The GB had no right to change the recommendation of the IC.
5.1.1The IC is selected from members of the GB and is mandated to “rank the candidates in order of preference, together with a brief motivation and submit this to the GB for their recommendation to the department” [my emphasis].
5.1.2I find this to be unambiguous. It is the GB that must discuss the findings of the IC and based on these findings decide who they are going to recommend to the Department. If there was any doubt, paragraph 3.10 stated above again clarifies the fact that it is the responsibility of the GB not the IC to make the recommendation to the Department.
5.1.3I was not given any evidence that scores alone should determine the final selection and in the absence of this would expect the GB to apply their judgement and if good reason exists to reject the findings of the IC.
5.2The reason the GB did not accept the recommendation was that they wanted an internal candidate. This is unfair discrimination.
5.2.1The Employment Equity Act and case law suggests that any differentiation not based on factors inherently required by the job is unfair discrimination. The Employment Equity Act lists these (some 14 of them). Clearly stipulating local knowledge is not one of them. Whilst it is arguable, I do not see any problem in preference being given to a local (based at the school) candidate, as I guess it could be an inherent requirement that the candidate has knowledge of the community the school serves. I would, however, expect that this is then included in the criteria as advertised.
5.3The second process was a sham, the decision had already been made and Meyer’s application was not taken seriously.
5.3.1This seems to be the view of the Department’s witness and no other company witness (other than the candidate who benefited from it), testified that it was in fact a fair process. On this basis I have to find that the process was compromised by the decision taken by the GB that the successful candidate must be an internal Applicant.
5.3.2The fact of the matter is that the GB legitimately rejected Meyer as a candidate. For an Arbitrator to overrule this decision, by coming to a conclusion as to who the best candidate is, would be unfair in the extreme. I do not have the knowledge, experience or I believe the authority, to usurp the role of the GB. Apart from this, I would be guilty of creating what, in my opinion, could be argued is an unfair labour practice in White’s case.
5.3.3At the same time I have already found that the second process is flawed and that Meyer was prejudiced as a result of this. With full knowledge of the practical problems, the inconvenience and the time constraints, I see no alternative but to rule that the process be repeated from the interview stage.
5.3.4Given that a new GB has since been appointed the opportunity exists for this repeated process to deliver justice to both candidates.
6.
AWARD
I rule that the selection for this appointment be repeated from and including the interview of short-listed candidates.
J W McGAHEY
PANELLIST
DATE : 19 NOVEMBER 2003
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER / PSES 408 WCAPPLICANT / MEYER
RESPONDENT / DEPARTMENT OF EDUCATION WC
NATURE / APPOINTMENT
ARBITRATOR / J W McCAHEY
DATE OF ARBITRATION / 19 NOVEMBER 2003
VENUE / WESTERN CAPE
REPRESENTATION:
APPLICANT / MR N ISAACSRESPONDENT / MS C JULIES
AWARD:
I rule that the selection for this appointment be repeated from and including the interview of short-listed candidates.
DATE OF AWARD / NOT KNOWN