The Facts
[3]
The appellant is employed by the Department of Education of the Province of Kwa Zulu-Natal as an
educator at Burnwood Secondary School. In 1997 a post for the position of principal of SM Jhavary School was advertised. The appellant
applied for appointment to the post. One Mr Persad, who was also employed as an educator, also applied.
[4]
Subsequently interviews were conducted by a committee called the Staff Selection Committee (Αthe committee≅). The process used by the committee in assessing candidates was to award them points. The appellant and Mr Persad achieved an equal
number of points. This raised the question of which one of the two the committee should put forward as the recommended candidate.
In terms of the collective agreement reached between the Department and various trade unions, including the South African Democratic
Teachers Union, (ΑSADTU≅) of which the appellant is a member, the committee was required to send its recommendation to the governing body of the school. In
turn the governing body would send its recommendation to the Head of the Department. After some discussions the committee decided
to recommend the appellant.
[5]
On the 5th June 1998 the governing body of the school deliberated on the committee=s recommendation. Some members of the governing body expressed the following concerns about the committee=s recommendation:-
(a)
that the appellant was a level 1 educator which
is an ordinary teacher as opposed to a head of a department or vice-principal; it was thought that, for this reason, the educators at the school might not accept the appellant as principal;
(b)
that a conflict of interest could arise for the appellant
as his wife was also employed at the school;
(c)
that, as the appellant was an executive member of SADTU
and a councillor of the African National Congress this could have a negative impact on the management of the school arising out of
possible frequent absence from school to attend various meetings connected with those positions;
(d)
that the appellant Αlacked managerial experience and expertise in school environment≅;
(e)
that Mr Persad was a better candidate than the appellant
because he was a Head of Department and, for that reason, was considered to have managerial experience; he was also at the time acting
in the post of principal of a secondary school; Mr Persad was also considered to have Αspecialised≅ qualifications.
[6]
Three members of the committee were also members of the governing body. In the light of the resistance
by some members of the governing body to accepting the committee=s recommendation of the appellant for the post, the three members of the governing body who were also members of the committee had
a caucus meeting among themselves. This meant that other members of the committee who were not part of the governing body did not
attend the caucus meeting. The three members of the committee then resolved to replace the appellant with Mr Persad as the committee=s recommended candidate.
[7]
Thereafter the governing body resolved to recommend Mr Persad to the Department for appointment
to the post. It then sent certain documents relating to the matter to the Department. The resolution of the governing body recommending
Mr Persad was intended to be among those documents. However, as it turned out, the resolution was not one of the documents sent.
The Department did not appoint Mr Persad because at that time it could only make an appointment on the recommendation of the governing
body which it had not received as yet. In due course Mr Persad in any event withdrew his acceptance of the nomination for appointment.
The post remained unfilled.
Referral of the dispute to conciliation and arbitration
[8]
The appellant felt aggrieved - not by anything done or not done by the Department - but by the governing
body=s decision not to accept the committee=s first recommendation which was that he be appointed to the post. The appellant took the attitude that the failure by the governing
body to accept the committee=s initial recommendation that he be appointed to the post constituted an unfair labour practice as defined in item 2(1)(a) of Schedule
7 of the Act which took the form of unfair discrimination. This was a reference to the definition of an unfair labour practice in
item 2(1)(a) of the Act (with regard to unfair discrimination) as it read at the time. Item 2(1)(a) read thus at the time:
Α2.
Residual unfair labour practice.
(1)
For the purposes of this item, an unfair labour practice means any unfair act or omission that arises between an employer and an employee
involving -
(a) the unfair discrimination, either directly or indirectly, against an employee on any arbitrary ground, including, but not limited
to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family responsibility≅
Item 2(2)(a) defined employee for the purposes of item 2(1)(a) to include an applicant for employment.
[9]
The appellant referred to the third respondent for conciliation a dispute which he subsequently
described in the answering affidavit in the Labour Court proceedings as arising from Αthe failure of the School Governing Body of the SM Jhavary Primary School to recommend [him] for appointment as the principal≅.
[10]
The second respondent was appointed to conduct the conciliation process to try and resolve the dispute.
When the conciliation process failed, an oral agreement was reached between the appellant and the Department to refer the dispute
to the third respondent for arbitration instead of it being referred to the Labour Court for adjudication which is what would ordinarily
have occurred. They also agreed that the second respondent would be the arbitrator.
[11]
The appellant and the first respondent agreed that the following were the second respondent=s terms of reference, namely,:
(a)
whether the process giving rise to the committee=s recommendation of the appellant as its first choice for appointment to the post of principal was procedurally and substantively
fair;
(b)
whether the objections that were raised by the governing body when it referred the matter back to the
committee were fair, reasonable and justifiable grounds for not accepting the committee=s recommendation of the appellant;
(c)
whether the appellant was unfairly discriminated against when the governing body did not accept the committee=s recommendation
of the appellant.
As can be seen from the terms of reference, the second respondent was not called upon to inquire into any conduct on the part of the
Department. In particular the complaint of unfair discrimination was directed against the governing body=s conduct in not accepting the committee=s initial recommendation of the appellant for appointment to the post.
[12]
The second respondent heard evidence and in due course delivered an arbitration award. He found that
the process conducted by the committee before it recommended the appellant was both substantively and procedurally fair. He found
further that the objections raised by the governing body against accepting the recommendation that the appellant should be appointed
were not fair, reasonable and justifiable. In this regard it is important to highlight the fact that he did not give any reasons
to support his conclusion that the concerns raised by the governing body were not fair, reasonable or justifiable. Also, he found
that the appellant Αwas unfairly discriminated against by the [governing body] in not recommending [him ] to the Department of Education for the post
of principal≅. The second respondent said that Αfor purposes of [his] award [he would] base [his] finding solely on the arbitrary discrimination against [the appellant] on the grounds
that he was an ANC councillor and an Executive member of SADTU≅. He said that, had this discrimination not taken place, the appellant would in all likelihood have been appointed by the Department.
The second respondent also gave no reasons why he thought it constituted unfair discrimination against the appellant for the governing
body to think that the positions he held as an ANC councillor and as an executive committee member of SADTU were likely to require
so much of his time for meetings that this might impact adversely on his functions as principal if he was appointed.
[13]
As to relief, the second respondent said that his powers were to determine the dispute Αon terms [he] deem[ed] reasonable including the ordering of reinstatement or compensation≅. In support of this statement he referred to item 4(1) of schedule 7 to the Act. Item 4(1) provides that the Labour Court has the
power to determine any dispute that has been referred to it in terms of item 3 Αon terms it deems reasonable, including, but not limited to, the ordering of reinstatement or compensation≅. He said that reinstatement did not come into play in the matter. He recorded that the Department made the point that the selection
process was still incomplete as the governing body still had to send another recommendation to the Department - presumably because
Mr Persad had withdrawn his acceptance of the nomination for the post - and until the governing body had made a recommendation, the
Department could not make an appointment.
[14]
The second respondent expressed the view that, although the behaviour of members of the governing body
had left much to be desired, a reasonable outcome of the dispute would not be ΑDepartmental intervention resulting in the appointment of [the appellant] to the post of principal of SM Jhavary Primary School≅. He gave no reason why that was supposed to happen. One would have thought that the remedy of appointment would have been the primary
remedy in order to address a complaint of non - appointment if that complaint was found to be justified. He indicated that in his
view an appropriate remedy was to order the payment of compensation. He then said that the question was whether he could order the
Department to pay compensation to the appellant Αin (sic) the strength of discrimination perpetrated by [the governing body]≅. He concluded that the Department was liable to pay compensation to the appellant Α
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