IN THE ELRC ARBITRATION
NAPTOSA obo Mr. CJ PHILLIPS “the Applicant”
DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”
ARBITRATION AWARD – INTERPRETATION OF COLLECTIVE AGREEMENT
Case Number: PSES 543 – 10/11 GP
Date of arbitration: 10 & 25 August 2011
Closing arguments submitted in writing on: 06 September 2011
Date of award: 20 September 2011
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
1 DETAILS OF HEARING AND REPRESENTATION
The hearing of the arbitration took place on 10 & 25 August 2011 at the offices of the Gauteng Department of Education in Johannesburg. The last of the written closing arguments were received from the parties on 06 September 2011, and will form part of the record. The Applicant is NAPTOSA obo Mr. CJ Phillips represented by Mr. R Cope, a union official. The Respondent is the Gauteng Department of Education, represented by Mr. Z Nawa.
2 TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The parties agreed on the following:
§ It is not a dispute regarding an alleged unfair labour practice relating to promotion, as the Respondent has not yet taken a final decision not to appoint the Applicant to the post of principal of Delrado Primary School. The Respondent has directed that the process be redone from the short listing stage.
§ The issue in dispute is whether the Respondent acted in accordance with the provisions of Collective Agreement no. 2 of 2005 (Gauteng Chamber) in dealing with and deciding to uphold the grievance lodged by SADTU (Bundle A, page 27). It is an interpretation and application of a collective agreement dispute only.
§ Annexure B of Collective agreement no. 1 of 2006 governs the procedure of the arbitration hearing; and
§ To empower the arbitrator to award an appropriate remedy.
The Applicant submitted documents contained in Bundle A, page 1 to 41. The Respondent submitted documents contained in Bundle B, page 1 to 10.
3 OPENING STATEMENTS
APPLICANT submitted the following opening statement:
· The Applicant referred to the contents of page 2 to 4 of Bundle A.
· THE Applicant is the Acting Principal of Delrado Primary School.
· He is a candidate for the vacant post of principal of Delrado Primary School.
· The dispute is about a grievance lodged by SADTU which was upheld by the Respondent. It concerned the process which led to the recommendation of the Applicant as principal.
· The Applicant is contesting the decision of the Respondent to uphold that grievance and asserts in doing so has not acted in line with Collective Agreement 2 of 2005.
· It is a SADTU strategy to target vacant posts for filling by SADTU members, and when it does not occur, they lodge a grievance in order to force the process to be redone with the aim of getting a SADTU member recommended. The grievance in casu is a case in point.
· The 1st element of the grievance relates to an allegation that the governing body was not legitimately composed and that the Applicant hand picked its members. Applicant will show that the governing body was legitimately composed, but even if there was a flaw, section 11(1) and 11(2) of the regulations relating to governing bodies determine that no act of a governing body shall be invalid merely because the governing body is not properly constituted.
· There is no evidence to support the above but the Respondent upheld the grievance nevertheless and ruled the appointment of the panel was invalid.
· The 2nd element of the grievance related to the use of six questions out of six questions compiled by the Department official assigned to assist the school in the interview process. This grievance was also upheld without substance.
· The relief sought is an order to the Respondent to rescind its upholding of the SADTU grievance and an order to implement the recommendation submitted to it by the school’s governing body for the appointment of the Applicant as its first choice for the post.
RESPONDENT submitted the following opening statement:
· The Respondent followed the procedures outlined in Collective Agreement 2 of 2005.
· It dealt correctly with the grievance.
4 SUMMARY OF EVIDENCE
The proceedings have been recorded digitally, and a short summary of the Applicant’s and Respondents’ witnesses’ evidence follows below.
CYRIL PHILLIPS testified that he the acting principal of Delrado Primary School. Bundle A, page 16 reflects a list of persons elected to the SGB in 2009. After the election three members of the parent component, Bogopane, Humphreys and Malatji, did not attend SGB meetings. They did not submit apologies. The secretary always sent out notices which they did not respond to. Pages 20 to 24 reflect minutes of SGB meetings which the witness all attended. Ms. Van Staden, the secretary of the SGB, compiled the minutes. Mr. Engelbrecht, the chairperson of the SGB, signed it. When they did not respond to written communication they were visited at home to be encouraged to attend meetings. They still did not attend. Concerted efforts were made to get them to attend as they formed the majority, and the process of recommendation for filling vacancies had to be dealt with. Solomons and Adams will testify that they went to their homes again. They were absent for at least 3 consecutive meetings without apologies. The Regulations Relating to Governing Bodies of Public Schools, Clause 14 (d) states incidental vacancies shall occur whenever a member is absent from three consecutive meetings without reasonable explanation. It is applicable because they did not attend 3 consecutive meetings and gave no reasonable explanation. The SGB was dysfunctional as it was problematic to set up a panel with full representation of the parent component. They addressed it with the responsible IDSO, Mr. Msimanga and they extended the time frame in consultation with Mr. Singo. Engelbrecht and Van Staden are the elected parents who attended meetings. The SGB then decided to co-opt parent members for a period of 90 days on to the SGB under the guidance of Mr. Msimanga. It was done and after 90 days a by-election was held in 2011. The secretary and chairperson were requested to submit names for members to be co-opted. The ballot had three names on it, based on availability and involvement in the school. Ugat and Govind were co-opted. Ms. Van Staden and Mr. Bhebhe, an educator, oversaw the process. The witness was not involved in it. Although a ballot is not necessary for co-option, they did it for transparency purposes and to inform the community. It was then possible for the SGB to select a panel for the filling of the posts. It consisted of three parents, Engelbrecht, Van Staden and Ugat, a teacher representative and the witness. Mr. Msimanga was present throughout the process and he acted as resource person. There were two HOD posts as reflected on page 18 of bundle A. Page 19 reflects Annexure D, Additional Requirements for the principal post. It came out a month after the advertisements for the HOD posts. The witness participated in the whole process of filling the HOD posts, under guidance of Mr. Msimanga. He was not involved in selecting the panel for the appointment of the principal post, because he was an applicant. It is reflected on page 24 of bundle A, paragraph 3 of the minutes. He left before the SGB selected the panel. Bundle A, page 11 reflects the SADTU grievance lodged on 17 December 2010 regarding the HOD posts. The basis of the grievance was that an illegitimate selection panel was used, and that they suspected that the acting principal appointed the panel. They refer to the provisions of Collective Agreement 2/2005 that requires a full sitting of the SGB. Page 12 reflects the grievance lodged by SADTU in respect of the principal post, with the same basis, and added to it the fact that 6 questions were prepared by the IDSO, which could lead to fraud. It seems as the district office disregarded the grievance in respect of the HOD posts as the recommended candidates were appointed. The panel was not illegitimate as all the processes were followed correctly and the SADTU grievance had no basis. The witness has no reason to doubt the character and integrity of the IDSO who prepared the 6 questions. Page 2 of Bundle B reflects minutes written by Pat Adams who is not a member of the SGB. It was not a SGB meeting on 29 November 2010. It appears to have the purpose of informing the SGB members on the selection of the panel. The SGB meeting was on 27 November 2010. During cross – examination he testified that he took over as acting principal on 01 August 2010 when the previous principal, Mr. Singh, left. He does not know when the SGB information sheet reflected on page 17 of bundle A was compiled. The minutes on page 20 was signed by the secretary, Van Staden and the chairperson, Engelbrecht, dated 28 August 2010. The witness was present at that meeting and can confirm the minutes. Paragraph 2 refers to an issue where members considered themselves as being co-opted. Volunteers were sought to arrange a dance function, a meeting was held for those persons and then they seemed to think they were co-opted on to the SGB, for instance Mr. Morat. When the witness took over on 01 August 2010 the members of the SGB were not those reflected on page 17, it was those on page 16, with him replacing Singh. The names handwritten in on page 17 were not part of the SGB. Pat Adams is a volunteer for the past 3 years. She is a qualified counselor and helped with the finances. She would help with SGB matters where necessary. She did not sit in any of the official SGB meetings. She was efficient and a natural choice as scribe for the interview panel. She did not score candidates. She did not play a role in the SGB, she was only requested to call on the members not attending meetings as she lived in the area and was mobile. They did not send her to get reasonable explanation from the absent members. They never received apologies. They sent notices in writing on the same basis to all members. Van Staden also went out to them. The secretary, Van Staden will have proof of the notices sent to them to invite then to meetings. It is not correct that no notices were given to them. It is not true that they were deliberately left out of the SGB meetings. The witness does not know how they were notified that they are no longer SGB members. He disputes that he told them verbally they have been removed. The minutes note the crucial points, not every point. The witness agreed that they were not informed, but they did not deliberately not inform them. Bogopane moved away, there were vacancies, and Msimanga said they have the right to co-opt so as not to delay the process further. Humphreys was no longer in the province and Malatji’s child left. So they had logistical problems to get them to respond to their notices. He denies that they deliberately failed to invite them so that they can co-opt. They don’t put school stamps on SGB minutes, and only the secretary and chairperson sign. He did not influence the process of co-option. He does not agree that Mr. Msimanga told him not to co-opt. It is not true that Ugat was co-opted because he was close to him. During re-examination he testified that the onus lies with the absent member to provide reasons for the absence.
MAGDELENE VAN STADEN testified that she is a parent and SGB member of Delrado Primary School. Page 16 of bundle A is a correct reflection of selected members. At first all attended meetings and later 3 did not and did not provide reasons. As secretary of the SGB she had to send notices to all SGB members. Notices were given to the children of SGB members who were parents. It was handwritten notices. Ms. Bogopane, Ms. Humphreys and Mr. Malatji did not attend. She was present at all the meetings reflected on pages 20 to 24 of bundle A. She wrote the minutes and typed it with the help of Pat Adams. Her signature appears at the bottom with the chairperson’s. The minutes are 100% correct. The handwritten names on page 17 are parents that were co-opted to assist with fundraising in May, they were not co-opted onto the SGB. Mr. Morat thought he was a SGB member and signed cheques illegally. It was discussed in the meetings. They sent out notices and sms messages to the members, still did not attend. They were absent for more than 3 meetings, but the last 3 consecutively. Not one submitted an apology in writing or per sms. She and Engelbrecht submitted the names for the ballot. Three names were on the ballot. She handed it to the children, and when it came back, she and Bhebhe counted it. She reported to the SGB who had the most votes, before the meeting of 09 October. At that meeting it was then discussed and decided to co-opt the two who had the most votes. Phillips had no hand in influencing the co-option and only helped with drawing up the ballot. She does not agree that the panel was illegitimate as alleged by SADTU. It appears as if the grievance had no influence on the HOD posts as the appointments were made. Msimanga was asked to draft the questions. The questions were handed to the panel and 2 union representatives of Naptosa and SADTU. They said nothing about the questions. The SADTU observer did say the panel was illegal and walked out. During cross – examination she testified that the co-option was done on 09 October. She did not see it as necessary to include the results of the ballot. She expects the children to give the notice of a meeting to the parent, she can not go to each house to give the notices herself. She also sent sms messages. She can not be sure they received the notices from the children. She does not have proof of the sms messages that were sent. One parent moved to Cape Town, one moved to town and the other somewhere else. They did not have the new addresses and did not send notices to the new addresses.
PATRICIA ADAMS testified that she is involved with Delrado Primary School as a volunteer, and not a parent. She serves on the SGB since March 2011. The SGB asked her to go and speak to parents who did not attend SGB meetings and make them aware of the importance to attend. She went to their houses. She was not involved with the ballot. She was the scribe for the panel for filling the HOD and principal posts. The HOD recommendations were accepted by the Department, they obviously ignored the grievance. They asked the IDSO to draw up the questions. More questions would not prevent fraud. Phillips did not try to influence the process to his advantage. During cross – examination she testified that Phillips was asked to excuse himself where the principal post was involved. He was part of the panel for the HOD posts. She was asked to visit parents who did not attend. She did not see the notices. She only got hold of Humphreys, who said she is moving to Cape Town. Bogopane’s mother said she stays in Johannesburg. She did not go to Malatji as she was scared to go into the area where he lived. She made no effort to contact Bogopane in Johannesburg. Her mother said she will give her the message.
CHRIS JACOBS testified that he was the Naptosa observer at the principal post interviews. He and the SADTU observer were present when the panel discussed the questions. The IDSO came with a number of questions which the panel accepted. The SADTU observer said the panel is illegitimate and left. There is no indication that any candidate was leaked the questions. SADTU always lodge grievances to push their candidates of preference. The process was open and transparent. There was no indication of Phillips being favoured. During cross – examination he testified that he was familiar with his role as observer. All the applicants were asked the same questions and had equal opportunity. The IDSO brought the questions. He was requested to ask the questions. He can not say if it was outside the process provided for in clause 3.5 of Collective Agreement 2/2005. He accepts the setting of the questions happened outside the process and was brought to the panel by the IDSO.
JOSEPH SINGO testified that he is an IDSO responsible for governance in the district. He deals with SGB elections since 1996. He explains the process of co-option. If a member of the SGB absents himself for 3 consecutive meetings he becomes a non-member. He should be given notice and find out whether he is no longer available. During cross – examination he testified that it is not necessary to call a parents meeting to do co-option. A ballot can be used to identify candidates for co-option. In response to questions asked by the arbitrator to clarify issues he testified that the process to identify candidates for co-option id usually informal and not done in a formal SGB meeting. Only the actual action of co-option is done in a formal SGB meeting.
MOGAMMAT MORAT testified that he was co-opted onto the SGB by Mr. Singh. When he left Mr. Phillips told him his services is no longer required. It was done at a workshop, not in a meeting. No reason was given. When he was co-opted he was a signatory and treasurer. In November 2010 Engelbrecht saw him at a shopping mall and asked if he could be available to sit on an interview panel. He contacted the witness several times on his cell phone. During cross – examination he testified that he became a signatory when he was chairperson of the SGB long ago. He is aware it is illegal to be a signatory if he does not have a child in the school. In response to questions asked by the arbitrator to clarify issues he testified that he was co-opted in 2009.
FREDERIKA BOGOPANE testified that she have a child in Delrado Primary School and served on the SGB as deputy chairperson. She was invited to meetings by sms when Mr. Singh was the principal. Since he left she has never been invited, except one time in August 2010 when Phillips sent her a sms. She was still on maternity leave and she sent an apology. She received no other invitations. She then received a sms from Phillips telling her she can no longer serve on the SGB. He went to her mother. During cross – examination she testified that she still has three children at school. They stay with her mother. They always stayed with her mother and she only visits in town where the farther of her children stays. She had a baby in July 2010. She can not forfeit meetings if she is not informed of the meetings. Phillips told her in August already she is no longer needed.
SUMMARY OF ARGUMENT
APPLICANT submitted the following closing arguments:
The Applicant’s case is based on an alleged incorrect interpretation and application of Collective Agreement 2 of 2005 in the Gauteng Chamber. The clauses in the Collective Agreement which are relevant are 3.2 and 3.9.
§ 3.2 The selection committee must comprise. . . (c) members of the SGB excluding educator members who are applicants
§ 3.9 All interviewees must be treated fairly and consistently.
The Applicant submits that the Respondent erred in upholding a two part grievance brought by SADTU against the School Governing Body. The destabilising role of SADTU in the south of Johannesburg was referred to by the Applicant in its introductory remarks and in evidence. The Applicant argues that it is significant the assertion that SADTU tries to subvert school governing bodies which do not recommend its members for appointment by means of flimsy grievances was not refuted by the Respondent. The Applicant argues that this was the origin of the SADTU grievance against the Delrado Primary SGB.
The first grievance was an allegation of an illegitimate selection panel, which was upheld by the District Director. The Applicant argues that the decision of the employer amounts to an incorrect interpretation and application of the Collective Agreement. Although evidence was presented to the District Grievance Committee that a bona fide co-option process had been followed, the employer found the panel members were not legally co-opted. It is the Applicant’s case that the wrongfulness of that decision was exposed during the arbitration.
None of the employer’s witnesses were able to discredit the process followed by the Delrado SGB in co-opting two new members. Nothing the employer raised in cross-examination discredited the same process. The two new members were lawfully co-opted and then included on the selection panel, first of all for the HOD posts, and secondly for the Principal’s post. It is of great significance that recommendations for appointment of HOD’s submitted by the Delrado panel were accepted by the GDE notwithstanding a SADTU grievance, but the recommendation for the appointment of the principal, from essentially the same panel, was declined on the grounds of an identical grievance. The Department’s appointment of the SGB’s recommendations for HOD’s confirms its recognition of the legality of the process. In respect of the allegation that Mr. Philips had abused his position to hand pick the co-opted members, there was no evidence presented at arbitration to support this. The Applicant prays that the commissioner will find the first part of the SADTU grievance to have no merit.
The second part of the SADTU grievance was that the IDSO prepared six questions and possible answers for the panel. It was argued that they believe that more questions should have been prepared so that the panel could make a choice. This could lead to fraud as the preferred candidate could be given prepared questions.
In his findings upholding the grievance, The District Director introduces an element not part of the grievance, i.e. that the union representatives were not present when questions were discussed. This was contradicted by several witnesses for the Applicant and not challenged by the employer.
For the rest, the District Director’s finding was that “there were only six questions that the IDSO drafted and all six questions were used for the interview.”That this should somehow constitute unfairness is beyond comprehension. Not surprisingly in the arbitration the employer did not try to substantiate this point. No evidence was presented by the employer and nothing in his cross examination challenged the evidence of the Applicant’s witnesses. The relevant clause of the Collective Agreement which the District Director invokes is 3.9: All interviewees must be treated fairly and consistently. The District Director has erred grievously by interpreting this clause to mean that using six out of a possible six questions is unfair. As with the first grievance, the Applicant prays that the commissioner will find the second part of the SADTU grievance to have no merit.
Accordingly the Applicant seeks an order compelling the employer to rescind its decision to uphold the grievances brought by SADTU in respect of the filling of the principal’s post at Delrado Primary School. And further prays for a directive to the employer to make an appointment of a principal based on the recommendation submitted to it by the SGB of the school without delay.
RESPONDENT submitted the following closing arguments:
The District Grievance Committee found that Delrado Primary School selection Committee was not legitimate in that it comprised of a parents component that was not properly co-opted or drafted into the SGB. The first witness for the Applicant, Mr. Phillips in his evidence in chief indicated that the parents who were members of the SGB did not attend meetings which resulted in them being discarded as members of the SGB. He cited that notices and sms messages were sent to the said parents. He could not specify how many sms messages were sent to each member. There was no evidence to support that fact. Ms. Bogopane, the Respondent’s witness, in her evidence in chief and under cross-examination indicated that she only received one sms from Mr. Phillips inviting her to the meeting. The other sms that she received was to inform her that she was no longer the SGB member. The Respondent submits that this evidence was not rebutted by the Applicant. There were contradictions in that Ms. van Staden under cross-examination indicated she would give all members of the SGB notices while Mr. Phillips under cross-examination indicated that he never saw the notices as the person responsible was Ms. Van Staden. Mr. Phillips further alluded to the fact that he was not given any notice to attend the meeting. Ms. van Staden under cross-examination indicated that she was not sure if the member did receive the said notices, as there was no method to ascertain receipt /or proof to that effect.
From the evidence present both in evidence in chief and under cross-examination it is clear that the Applicant could not prove that the three said members of the SGB did receive notices and /or sms messages as alleged. In this instance it proves that the said members did not attend the meetings because they did not receive the notices. Ms. Bogopane in her evidence in chief indicated that at one stage she received the notice on a Friday and the meeting was scheduled for the next day which was on Saturday. Mr. Singo the Respondent’s witness, indicated in his evidence in chief that the procedure is that for members to forfeit the positions in the SGB as the result of non-attendance of meetings it should be three consecutive meetings, but members should have been invited. Furthermore the SGB is supposed to inform the affected members in writing that they should indicate the reason for their failure to attend and indicate if they are still prepared to serve in the body. The correspondence should further indicate that their failure to respond positively will result in them being terminated as members of the SGB. There was no evidence led to indicate that the required procedure was followed in terminating membership of the said members.
Mr. Phillips under cross examination indicated that he personally did not inform the said members that their membership was terminated. He could not tell who informed the members about their SGB termination. The fact that the members were informed by Mr. Phillips was confirmed by Ms. Bogopane in her evidence in chief and under cross-examination. The two above instances confirm the modus operandi of Mr. Phillips in terminating SGB membership.
It is common cause that the questions were drafted by the IDSO Mr. Msimanga. The above action is in violation of clause 3.5 of the Collective Agreement no. 2 of 2005 in that the provision requires that the questions as part of the criteria should be done in the presence of the union observers. It is clear that the questions were not discussed and not formulated in the presence of the union observers. It is the Respondent’s view that the Applicant has failed to prove its case, and his claim should be dismissed.
5 ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the relevant provisions of the South African Schools Act, no. 84 of 1996 (SASA), the Employment of Educators Act, no. 76 of 1998 (EEA), the provisions of Collective Agreement no. 2 of 2005 (Recruitment and Placement procedures for educators) and the Regulations Relating to Governing Bodies of Public Schools (the Regulations). I have considered the arguments of the parties as well as the documentary evidence submitted.
It is important to keep in mind that the parties agreed that I should determine whether the Respondent acted in accordance with the provisions of Collective Agreement no. 2 of 2005 (Gauteng Chamber) in dealing with and deciding to uphold the grievance lodged by SADTU (Bundle A, page 27). It is an interpretation and application of a collective agreement dispute only. I am thus mindful of the fact that this not a dispute about the Respondent committing an unfair labour practice relating to promotion by not appointing the Applicant to the post of principal of Delrado Primary School, as the Respondent has not yet taken a final decision not to appoint the Applicant to the post of principal of Delrado Primary School. The Respondent has directed that the process be redone from the short listing stage.
It is not in dispute that:
· the Applicant was recommended as the preferred candidate for appointment by the SGB to the HOD;
· the HOD upheld the grievance lodges by SADTU, and did not approve the recommendation that was in fact received in respect of the post the Applicant applied for;
· the HOD decided to re-do the process from the short listing stage;
· currently no appointment had been made yet.
In considering the Respondent’s actions in respect of the 1st element of the grievance lodged by SADTU, the whole process of the actions of the SGB leading up to the eventual selection of the interview panel need to be considered. Although the co-option process itself can not be faulted once the SGB decided that the three members vacated their positions in terms of clause 14(d) of the Regulations, I am not convinced that the SGB was justified in making the decision that the three members terminated their membership, and to co-opt new members. It is common cause that the three members did not attend three consecutive meetings, but to invoke the provisions of clause 14 of the Regulations there must be an absence of “reasonable explanations”. It would be a logical conclusion that there should be proof of proper notification of the meeting that was not attended, and proof of proper service of the notification that would establish that it was indeed received by the member. Only thereafter, and in the absence of a reasonable explanation, can the provisions of clause 14 rightfully be relied upon, to assume deliberate absence, in my opinion. If a member did not receive a notification of a meeting, he or she can surely not be blamed for not attending, or not submitting a reasonable explanation, and consequently should not lose his or her membership in those circumstances as a result of the operation of clause 14(d). If this is not the case, the situation might present itself where certain members are intentionally excluded from meetings by not been given or receiving proper notice of the meetings, and then by invoking the provisions of clause 14(d), stripped of their membership of the SGB. In that manner the membership of an SGB could be improperly manipulated to favour a certain preference.
In casu I can not find that the three members, who formed the majority of the parent component of the SGB, did receive proper notification of the meetings they did not attend. Van Staden testified that notices were given to the children at school to give to the parents. Considering the fact that it is primary school children, there can be no guarantee that it was in fact given to the parent member, and that notice was indeed received by the members. The witness testified that she expected the children to deliver the notices, but conceded that she can not be sure it was in fact done. The member who testified, Ms. Bogopane, said that she did not receive all the notifications, nor did she receive the sms messages. Van Staden could also not provide proof of the fact that sms messages were in fact sent in each occasion. It is improbable that Bogopane would be disinterested in attending any meetings of the SGB, considering the fact that she was the deputy chairperson and has three children in the school. Her evidence was not discredited in any way. The personal contact by Adams also was not satisfactory, as Malatji was not visited as she feared to enter the area where he resided. She could also not make personal contact with Humphreys or Bogopane. This is in stark contrast to the evidence of the Applicant which created the impression that each member was visited personally and encouraged to attend meetings, and that they elected not to attend. He could also not explain how they were notified of the termination of their membership, and whether they were notified at all. Although the SGB found itself in a dilemma, I am not satisfied that it acted properly in attempting to secure the presence of SGB members at the meetings.
This resulted in the specific constitution of the selection and interview panel, based on the termination of membership and the co-option that was not justified. In such a situation, whether intentional or not, it would justify the Respondent’s decision to uphold the 1st element of the grievance lodged by SADTU. I find that the Respondent correctly interpreted and applied the provisions of Collective Agreement no. 2 of 2005 (Gauteng Chamber) in dealing with and deciding to uphold the 1st part of the grievance lodged by SADTU.
The inconsistency by the Department in accepting the HOD recommendations by the same panel does not negate the unjustified actions of the SGB that I have to consider in respect of the facts before me.
The Respondent relied upon clause 3.9 of the Collective Agreement to justify its decision to uphold the 2nd element the SADTU grievance. I do not agree that the fact that the IDSO prepared six questions and possible answers for the panel, caused all the interviewees not be treated fairly and consistently. There is no evidence that shows that using the six questions could lead to fraud, as claimed by SADTU. The District Director also introduced an element not part of the grievance, i.e. that the union representatives were not present when questions were discussed. This assertion was not supported by the evidence.
I accordingly find that the Respondent erred in its interpretation and application of clause 3.9 of Collective Agreement 2 of 2005 as basis for upholding the 2nd element of the SADTU grievance.
However, the latter finding would not entitle the Applicant to the relief sought, as it was found that the decision of the Respondent to have the process redone from the short listing stage, was justified in respect of the 1st element alone.
My award, accordingly, is as follows:
1. I find that the Applicant is not entitled to relief. The Applicant’s claim is dismissed.
2. No order is made in respect of costs.
Arbitrator 20 September 2011