MPHELA v DEPARTMENT OF EDUCATION, LIMPOPO ARBITRATION AWARD

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1 MPHELA v DEPARTMENT OF EDUCATION, LIMPOPO FORUM : ELRC ARBITRATOR : CARRIM A. CASE NO : PSES /07 LP DATE : 11 OCTOBER 2006 The applicant had applied for an HOD post and believed that he met all the listed requirements but was not shortlisted despite having acted as HOD. The Department alleged that they had to introduce phase 3 at the shortlisting stage because there were still too many candidates and hence they increased the experience level which excluded the applicant. As regards acting as HOD, there is no obligation to automatically shortlist someone merely because they have acted in a position. The Arbitrator found that it was not unreasonable to increase the experience level at phase 3. Application dismissed. ARBITRATION AWARD DETAILS OF THE HEARING AND REPRESENTATION The arbitration hearing was held on 25/07/2006, 31/08/2006 and 19/09/2006 at Voorwaarts Building, at corner Hospital and Hans Van Rensburg Streets, Polokwane, Limpopo Province. The applicant party, Mr S.M. Mphela, was present and was represented by Mr B.J. Moname of Lebea & Associates, a firm of attorneys in Polokwane. The respondent party, the Department of Education, Limpopo Province, was represented by Ms Mahawane from their labour relations department. Mrs N.R. Tjale was present and was represented by Mr M.A. Makgaa of SADTU. ISSUES IN DISPUTE 1. Whether the exclusion of the applicant in the shortlisting was fair or not (whether the applicant met the requirements as per circular of 07/10/2005 or not). 2. The arbitrator must grant appropriate relief, if necessary. BACKGROUND Contact : Melanie Naicker melanien@cbatraining.co.za Tel :

2 The dispute was referred to conciliation and a certificate stating that the dispute remains unresolved was issued. The dispute was referred to arbitration. COMMON CAUSE ISSUES 1. Mrs Tjale was appointed and recommended by SGB in the post of HOD (post in dispute). SURVEY OF EVIDENCE AND ARGUMENT All parties gave opening statements. The respondent handed in bundle A, A1 to A9 and the applicant handed in bundle B, B1 to B8. APPLICANT S EVIDENCE MR MACKSON MPHELA He testified that he applied for an HOD position. The requirements were numeracy, life skills and literacy at the foundation phase. He met all the requirements. His junior diploma is for the foundation phase and he was acting in a post in the foundation phase. He testified that he has been acting as HOD in the school since 2005 until he was terminated as acting HOD in August When he was acting as HOD he received an allowance from the department. He testified that in terms of paragraph 3 of annexure A1, HODs must comply with all the requirements and he met them. He felt aggrieved by not been shortlisted. He wrote a letter to the department on 27/03/2006 to raise this issue. It was before the interviews took place. He said that he was not advised of the phases on annexure A2 and the advertisement never stated a requirement of 15 years experience. He felt that he was unfairly treated. His grievance was not reviewed and an applicant who was shortlisted never met the requirements. During cross-examination he testified that he read and understood annexure A1. According to his understanding, it means that a person acting as HOD must be given first preference. He testified that he met all the requirements. His qualification is Mathematics (Numeracy), Languages (Literacy) and with regard to life skills, he indicated that it was not offered at the Colleges and therefore no teacher did it. He has experience in teaching the three subjects. He supervised the foundation phase on Numeracy, Life skills and Literacy.

3 He testified that he applied because he can teach the subjects in question. He knows that in terms of the sifting procedure only 5 applicants can be interviewed. He said that it was unfair for the panel to decide on the 15 years experience because the minimum requirement was 5 years experience. He does not dispute their strategy. What he is against is the fact that they added 10 years for the experience requirement. He is aware that the panel acted in line with annexure A7 but they were unfair because one of the five persons shortlisted did not meet the requirements and this was discovered before the interviews and nothing was done to revisit the shortlisting. He believes that the department has proof to that effect. According to him the panel was also not complete. There was no cross-examination by SADTU. RESPONDENT S EVIDENCE FIRST WITNESS: MR M D PHOKANOKA He testified that the applicant teaches Technology in grades 5,6 and 7, Afrikaans in grade 7 and Science in grade 6. He does not teach Numeracy and Literacy and he never taught these subjects before. He does not know if the applicant applied for post 13. The subjects in question were taught by Ms Tjale and even before her, the subjects were not taught by the applicant. He said that the applicant s grievance was attended to. The panel reviewed the process and found that he was fairly treated. He did not have the experience required. He testified that the person appointed has the relevant experience required. He could not remember if any of the five shortlisted applicants did not meet the requirements. During cross-examination he testified that there was a review process but he could not remember the date. The outcome was that the sifting procedure was fair. He indicated that literacy does not include Afrikaans because in the foundation phase, the language is mostly Sepedi. He said that the applicant was not supervising the foundation phase on the subjects in question. He was coordinating. The teachers knew more than him. He was therefore not guiding the teachers. He said that the requirement was that the candidates must have experience in teaching the foundation phase, i.e. Grade R to 3. He does not know how the panel arrived at the requirement of 15 years experience. He indicated that the department would be wrong if it had appointed the applicant permanently in the HOD post.

4 There was no cross-examination by SADTU. During re-examination he testified that the applicant s certificates do not indicate the subjects in question. SECOND WITNESS: E.S. MACHAKA He testified that he was on the panel in question. There were more than 40 candidates and they went through phase one wherein they checked all the documents. They attended to phase two which is looking at the qualifications and the requirements and there was still more than five candidates. They then moved to phase three where they had to develop their own criteria as per annexure A7. They wanted the relevant candidates who had experience in that relevant field. Mr Mphela was out on phase three when they developed a criteria of making a requirement of 15 years experience. There were candidates who had more experience than him. He said that according to the documents they received, the five shortlisted candidates had the required qualifications and experience. During cross-examination he testified that the applicant met the requirements as per the advertisement. He testified that they decided to make a 15 years experience requirement because they were guided by clauses 7.1 and 7.2 of annexure A9. This was done because almost all the candidates were equally competent and experienced in the subjects taught in that phase. They took annexure A1 into account. He testified that the phase beyond phase three is extra qualifications relevant to the post. He testified that the experience of the person in acting HOD post was not considered because they did not specifically state acting HOD. There was no cross-examination by SADTU. During re-examination he testified that the advertisement required a teacher and not a supervisor. SADTU decided not to lead evidence. ANALYSIS OF EVIDENCE AND ARGUMENTS The issue in dispute is whether the exclusion of the applicant in the shortlisting was fair or not (whether the applicant met the requirements as per circular of 07/10/2005 or not). Circular of 07/10/2005 reads as follows: 3. Whereas currently acting principals, currently acting deputy principals and currently acting heads of department must also comply with prescribed requirements in order to be shortlisted,

5 School Governing Bodies/Interviewing Committees are hereby advised to ensure that the currently acting educators are not negatively disadvantaged (by unreasonably not shortlisting them) during the shortlisting process. 4. It has to be understood, however, that should a currently acting educator be shortlisted, it does not imply that she/he will be automatically recommended for appointment and/or be appointed. It is clear in paragraphs 3 and 4 above that the non shortlisting must not be unreasonable. Paragraph 4 is clear in that it provides that a currently acting educator does not necessarily have to be shortlisted. The question in this dispute is whether the non shortlisting of the applicant was unreasonable. Paragraphs 6 and 7 of the shortlisting procedure reads as follows: 6. In the unlikely event that during Phase 2 it is still not possible to identify the five (5) top-most candidates, the shortlisting process shall proceed to phase 3. At Phase 3, the Interview Committee shall develop further shortlisting criteria which is objective and fair provided further that a report on the shortlisting criteria developed is submitted together with other reports. (NB. In the event where an Interview Committee finds it necessary to develop further shortlisting criteria, the discretion lies with the Interview Committee to allocate relevant weight values to the criteria agreed upon). 7. Examples of further shortlisting criteria are the following: 7.1 Experience in teaching the subject(s)/learning area(s) as per the advertised vacancy. 7.2 Experience in teaching the relevant phase, e.g. junior primary, senior primary, junior secondary, senior secondary, primary, secondary, etc. 7.3 Specialisation/qualifications in the relevant subject(s). Mr Mphela testified that he does not dispute the strategy of the interviewing panel. Mr Machaka testified that as the panel they had to proceed to phase 3 as there was still more than 5 candidates. They had to develop their own criteria as per paragraph 6 above. The panel was guided by paragraphs 7.1 and 7.2 of the shortlisting procedure. Almost all candidates were equally competent and experienced. They needed candidates with experience in the relevant field. Mr Mphela was shortlisted out at phase 3 as he never qualified in terms of the further shortlisting criteria. Members of both unions, PEU and SADTU were present in the panel.

6 There was also no evidence to indicate that there was any candidate in the last five who did not have the relevant experience and qualifications.

7 I am therefore of the view that the non shortlisting of the applicant was not unreasonable. AWARD I find that the exclusion of the applicant in the shortlisting was fair. Arbitrator: A M Carrim 11/10/ Contact : Melanie Naicker melanien@cbatraining.co.za Tel :