V I WARD Vs WESTERN CAPE EDUCATION DEPARTMENT

WARD vs DEPARTMENT OF EDUCATION WESTERN CAPE

FORUM:ELRC

ARBITRATOR:W R KERFOOT

CASE NO:39

DATE:27 MAY 1998

Recommendations by SGB:- departmental rep at interview submitting report against recommendation of SGB. His objections to preferred candidate an expression of professional opinion which, although even the correct one, would not invalidate a genuine unbiased selection by parents, at the school, less sophisticated though they may be .Arbitrator condemned the criticism of the school committee as of a nit-picking nature. SGB recommendation stands.

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ARBITRATION AWARD

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1.THE HEARING

This matter was heard on 12 and 14 May 1998 in accordance with the terms of reference agreed between the Education Labour Relations Council, the Western Cape Education Department ("the Department"), the South African Democratic Teachers Union ("the Union") and the Cape Professional Teachers Association.

The Grievant was represented by Messrs Rustin and Adams of the Union and the Department by Mr Wandrag with Mr Van Der Rheede and Ms Teflin.

I apologize to the parties for the delay in delivering this Award, but I have been ill and as a result under great pressure of word.

This is an unusual dispute in that the Union, on behalf of the Grievant, contends that the interviewing process for the appointment of a Principal at Silverstream Primary School Manenberg complies substantially with the requirements of Resolution 13 and Circular 80, whilst the Department contends that the process was substantially flawed.

The parties were unable to resolve the dispute so a non-settlement certificate was completed and the matter resumed as an arbitration.

2.BACKGROUND TO THE DISPUTE

An attempt to appoint a Principal to the vacant post at Silverstream Primary in 1996 was unseccessful. A dispute was declared by one of the candidates, a Mr Adams, who was also a candidate for the post in the present dispute, and it was decided that a facilitator would be appointed to assist the school committee with its procedure.

A Mr Johann Geduld, formerly a Circuit Manager for the Department, was appointed to facilitate the process. Interviewing of candidates took place on 19 March 1997 after which the school committee nominated the Grievant, but in the light of a 15 page report submitted by Mr Geduld, the Department recommended that the post be re-advertised.

This has given rise to the dispute in that Ms Ward wishes her nomination to be implemented.

It is common cause that there were meetings of the school committee on 27 February, 6 March, 13 March and 19 March 1997.

The Department contends that there was a meeting held behind the facilitator's back on or about 17 March 1997.

It is against this background that evidence was led.

3.EVIDENCE

The Union led its evidence first. Its witnesses were Ms Cheryl Boer, a SADTU observer at the meeting of 13 March, and Mr Muneeb Meintjies, the chair of the School Committee who gave evidence on 12 May and Ms Sheila Gilbert who gave evidence on the evening of 14 May. Ms Boer's evidence was clearly led to deal with criticism of her expressed in Mr Geduld's report. She stated that she attended the meeting of 13 March as a SADTU observer, that in the light of previous experience at Kalksteenfontein Primary School, she proposed a list of questions for the candidates that had been useful at Kalksteenfontein but that Mrs Cootie of the Committee had said the committee would rather devise its own questions. She testified that that was her only contribution to the meeting and that she left early. Mr Meintjies supported what Ms Boer had to say as did Ms Gilbert.

In his evidence Mr Meintjies stated that Mr Geduld arrived late on 19 March and that in desperation the committee started devising questions for the candidates in his absence. He said that Mr Geduld complained about their having drawn up questions and they accordingly worked them out together thereafter to Mr Geduld's approval. He further testified that Mrs Samuels had asked questions of the candidates in English and that Mr Geduld had expressed no objection to her doing so.

The cross-examination of Mr Meintjies was directed successfully at establishing a lack of sophistication on his part. For example Mr Meintjies didn't sign minutes of meetings and, although he was not pressed for an answer, he said it would be "a bietjie moeilik" to describe the circumstances in which full marks would be given on the five mark scale.

In cross-exeamination he said there had not been any real discussion about how to grade candidates but he felt it was self-evident that the candidate receiving the highest marks would be nominated.

He further testified that Mr Geduld was most dissatisfied once he had learnt that Mrs Ward had received the most marks and he said that according to his reckoning Mr Adams should have got the highest allocation.

He stated that Mr Geduld did not query the process.

He testified that Mr Geduld stated he was going to submit a report over the matter.

Mr Meintjies testified that that same evening he made the nomination of Mrs Ward.

He then testified about the circumstances in which Mr Geduld was unable to get documents relating to the interviews from him for the purposes of his report. According to Mr Meintjies he did not provide the information because Mr Geduld would not tell him who from the Department required them.

Mr Meintjies denied having a meeting behind Mr Geduld's back (as did Mrs Gilbert) and he denied having a typed list of questions ready for 19 March.

Mrs Gilbert's evidence, given out of sequence after Mr Geduld had testified, does not take the matter much further other than that her evidence about Mr Meintjies failure to provide documents for Mr Geduld tends to confirm Mr Geduld's version of that aspect of the evidence, and that she frankly stated that relations between Mr Geduld and the committee were not good and that Mr Geduld had stated that they were not well educated enough for the process. As set out above, she tended to confirm Mr Meintjies and Ms Boer's version of the events of 13 March at which "shortlisting" was done by having all four interested candidates invited to the interview.

Mr Geduld testified at length.

He indicated that he was taken aback by a last minute and high-handed not to attend the meeting on 27 February after his appointment as facilitator. He only learnt when consulted by Mr Adams on an issue about the meeting of 6 March. He gave evidence about poorly kept minutes.

He was concerned by Mrs Boer's participation in the meeting of 13 March when she was only there as an observer. He confirmed that the questions were to be determined on 19 March and that the five point scale was agreed.

In his evidence in chief he did not state that he was late for the meeting of 19 March though he readily conceded it in cross-examination.

He stated that there was one question that had not been agreed that was put to a condidate on 19 march and that Mrs Samuels use of English to Mr Adams was a problem but he could not remember if English was spoken to other candidates. He decided to score the candidates himself to see whether there was "co-ordination" between his marks and those of the committee.

He mentioned discrepancies such as where Mrs Ward got full marks from one committee member for an answer to which Mr Adams only got three for what Mr Geduld felt was a better answer. He also testified in chief about his efforts to ge documents from mr Meintjies.

In cross-examination he criticised the performance of the chair but could not really give detaile of his inadequacy. He conceded that Mr Meintjies might have been an exponent of collective leadership. He said that Mr Adams had been acting principal with success but that he could not find that Mrs Ward had ever acted although the committee seemed to think so. He conceded in cross-examination that the criticisms he had expressed of the process prior to 13 March didn't make any difference or have any effect on the ultimate process.

He stated that when he arrived for the meeting on 19 March a typed list of questions was produced which the chairman told him had been prepared on 17 March.

He quickly scuppered the prepared list and worked through acceptable questions with the committee.

He stated that the chairman's questions were not fluent and were ambiguous and that he felt the chairman was out of his depth.

He felt that Mr Adams in particular had a problem with Mrs Samuels talking English. He stressed that Mrs Ward had been questioned for only 15 minutes.

He stated that at the head office dispute meeting the committee had disparaged Mr Adams without giving details but conceded that it could have been justification of their choice of candidate.

Neither side addressed me on the calibre or credibility of the witnesses.

My assessment on the questions asked of them in chief and in cross-examination is that they were all fairly credible. For the purposes of the Award, I have to deal more closely with the most important witness, Mr Geduld.

Mr Geduld was obviously a very well educated man, fluent and precise in both English and Afrikaans. He is clearly a perfectionist and admitted to being one. It was clear that he expected only the highest standards of everybody. His standards were such that he emphasised inadequacies in the procedure that had become irrelevant - often because of his intervention - to the proceedings on 19 March and the nomination of Ms Ward.

He may have been uncertain of his memory on some issues - and it was notable that he took advantage of opportunity to read his report while giving evidence - but he was an honest witness who may have set too exacting standards for the tase of the school committee which clearly resented his role in trying to ensure that the process ran correctly.

4.ARGUMENT

Mr Rustin submitted that all the inadequacies perceived by Mr Geduld had been put right by him before 19 March. He felt that Mr Geduld displayed a disregard for the community and the committee and that he sought professional standards from people who could not conceivably provide them. He submitted that the point system was objective, that Mr Geduld's suspicions about a hidden agenda were unfounded and that had Mr Geduld really felt the way he did, he should have raised objections before and corrected the process before submitting his report.

Mr Wandrag submitted that re-advertising was in the interests of all the parties, that Resolution 13 and in particular paragraph 5 had not been complied with, that the previous governing body was clearly not equipped to deal with selection and nomination and that all efforts to facilitate the process were rejected. He further emphasised Section 4.4 and 4.5 of Resolution 13 as not having been complied with. He quoted the De Vries judgment and rightly submitted that the Department is not bound by a school committee's nomination.

6.DISCUSSION

It is correct, as submitted by Mr Rustin, that apart from Mr Geduld's concerns about speech, clarity and time all his objections had been corrected by him prior to 19 March. It does not necessarily mean that they should not be taken into account in evaluating whether or not here was a fair procedure.

I will be discussing this issue in more detail later.

In the meantime, to deal with the purely technical aspects of the Department's criticism of the process, paragraph 4.4 of Resolution 13 through to paragraph 5 read as follows:

"4.4The interviewing committee must then rank the candidates in order of their preference, and give a brief motivation for their choice. During this process the relevant employee organisations of the ELCR can send observers to sit in.

4.5The employing department must then satisfy itself that procedures as agreed upon were followed, and that there were no disputes from any of the parties involved before making the final decision."

5.RECORD OF INTERVIEWERS

The employer must ensure that accurate records are kept of proceedings dealing with the interviewing of candidates shortlisted as well as decisions relating to the nomination of the suitable candidate.

Circular 113 of 1984 was also given to me and provides under paragraph 5 the duties of the principal and provides that the minutes should be kept in a "stewige boek met ingebinde blaaie". In the light of Mr Geduld's report, the Department was clearly justified in being concerned that procedures as agreed upon were not followd. It may have been premature that the Department itself to decide to readvertise before receiving any disputes from other candidates.

As far as paragraph 4.4 is concerned, clearly there was a ranking done allegedly only on marks without motivation other than that. Clearly there was a discussion during which Mr Geduld stated that the choise chould have been Mr Adams. It is interesting to note that in Mrs Gilbert's minutes she mentions a discussion although neither she nor Mr Meintjies nor Mr Geduld testified to that effect.

Apart from that, and although they were kept in a rather tatty school exercise book, accurate minutes of at least 19 March appear to have been available and at the outset the chairman stated he had the score sheets etc which he however later surprisingly returned to the members of the committee. I am accordingly not persuaded that the chairman's failure to abide by paragraph 5 invalidates the process.

I am acutely conscious of the defects in the process from 27 February through to 19 March. On 19 March clearly the mark allocated to Mrs Ward on the social worker question was not merited and Mr Adams mark according to Mr Geduld, was too low despite being clearly the better answer. Similarly there is cause for criticism over one unauthorised question the nature of which was not disclosed but that does not seem serious. One wonders too why certain candidates including Mrs Ward were only interviewed for 15 minutes or less while Mr Adams had 40 minutes. However as far as process goes this would seem to be fair to Mr Adams. When questioned on this Mr Meintjies was adamant that Mrs Ward's answers had been pertinent and to the point.

I am concerned by mr Geduld's speculation of bias in favour of Mrs Ward. It was not however put to any of the witnesses for the Union that Mrs Ward had not acted as Principal. I am also concerned that his preference for Mr Adams as a candidate is an expression of his professional opinion which might strictly speaking be the correct one, but would not invalidate a genuine unbiased but different selection by parents of children at the school less sophisticated though they may be.

Despite my misgivings about the criticisms levelled by Mr Geduld on the evaluation and his intimation that they may have been excessive criticism of Mr Adams by members of the school committee, on another occasion, I cannot discount the excessive weight he gave to unbiased or irrelevant errors or inadequacies on the part of the school committee or union observers. For example the "interference" by Mrs Boer is of no significance, they flaw on 13 March was cured. The failure of the committee to notify Mr Geduld timeously on 27 February or for 6 march is similarly irrelevant other than to show a certain resentment and non co-operation on the part of the committee and this behaviour was resolved. Even the alleged meeting behind Mr Geduld's back led to no harm being done as he then approved the draft questions and he himself did nothing about stopping the process at that stage which he presumably would have done had he regarded it as important.

Similarly, the linguistic ineptitude of the chairman and even Mrs Samuels broken English were endured by all the candidates, although Mr Geduld felt that perhaps Mr Adams suffered most at Mrs Samuels hands. No suggestion was made that Mrs Samuels deliberately used English to confuse Mr Adams. A good deal of the criticism of the school committee is accordingly of a rather nit-pleking nature.

It is, however, unfortunate that the committee reacted to the facilitation in a rather petty and unco-operative manner over the period 27 February to 13 March and, on the part of thechairman, after 19 March.

However, as far as the mandatory and significant provisions of Resolution 13 and Circular 80 are concerned, shortlisting - such as it was, in view of the numbers involved - was properly considered and applied in the presence of the Union, the point allocation sclae was discussed and agreed upon and implemented, the questions were ultimately substantially abided by and the candidates were graded on the basis of the marks they gained at the interview.

6.AWARD

In view of what I have stated above, and despite the Department's perfectly proper initial reaction in the light of Mr Geduld's report, though perhaps its enquiry in response to his report should have been more extensive, I would advise the Department not to re-advertise the post as the procedures as agreed were substantially followed and no disputes have been lodged. I make this recommendation in the knowledge that for the Department to act upon the nomination may lead to further disputes.

W R KERFOOT

27 May 1998