Reddy v KZN Department of Education and Culture and Others (DA13/02) [2003] ZALAC 7; (2003) 24 ILJ 1358 (LAC); [2003] 7 BLLR 661 (LAC) (23 May 2003)

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[2003] ZALAC 7
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Reddy v KZN Department of Education and Culture and Others (DA13/02) [2003] ZALAC 7; (2003) 24 ILJ 1358 (LAC); [2003] 7 BLLR 661 (LAC) (23 May 2003)

28
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
HELD IN JOHANNESBURG
HELD
IN JOHANNESBURG HELD IN JOHANNESBURG
Case
No: DA13/02
In the appeal between:
DEENADAYALAN REDDY
Appellant
and
KZN DEPARTMENT OF
EDUCATION
AND
CULTURE 1
ST
Respondent
BRIAN
CURRIN N.O. 2
ND
Respondent
EDUCATION LABOUR
RELATIONS
COUNCIL 3
RD
Respondent
GOVERNING BODY OF
THE
SM
JHAVARY SCHOOL 4
TH
Respondent
________________________________________________________________
JUDGEMENT
________________________________________________________________
ZONDO JP
Introduction
[1] This is an appeal from a judgement of Ngcamu
AJ sitting in the Labour Court in a dispute concerning the failure
of the governing
body of the SM Jhavary School to recommend the
appellant to the Department of Education, KwaZulu - Natal (

the
Department

),
which is the first respondent, for appointment as principal of that
school. The second respondent is Mr Brian Currin who was
cited in
these proceedings in his capacity as the arbitrator who arbitrated
the dispute that is the subject of these proceedings.
The third
respondent is the Education Labour Relations Council, a bargaining
council which is accredited in terms of the Labour
Relations Act,
1995 (

the
Act

).The
fourth respondent is the governing body of SM Jhavary School (

the
school

).
[2] The second
respondent issued an award to the effect that the failure by the
governing body to recommend the appellant for appointment
to the
post of principal of the school constituted unfair discrimination
against the appellant and that the Department was liable
for that
failure. The Department was ordered to pay the appellant
compensation in an amount of R100 000,00. The Department brought
an
application in the Labour Court to review and set aside that award.
The appellant opposed the application. The Labour Court
reviewed
the award and set it aside but made no order as to costs. It
subsequently granted the appellant leave to appeal to this
Court.
This then is the appeal against that judgement.
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 (

the
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, (

SADTU

)
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 5
th
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

lacked
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

specialised

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
:

2. 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

the
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

was
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

for
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

on
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

on
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

Departmental
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

in
(sic) the strength of discrimination perpetrated by [the governing
body]

.
He
concluded that the Department was liable to pay compensation to the
appellant

against
whom the [governing body] [had] committed an act of unfair
discrimination

.
[15] The
second respondent then considered the question of the amount of
compensation he could order. He decided to order the Department
to
pay an amount of R 100 000, 00 as compensation to the appellant. He
said that compensation needed, in terms of item 2 of schedule
7 to
the Act, to be fair and reasonable. He pointed out that the amount
of compensation

should
not be based on purely patrimonial or actual loss

and
that this was emphasised in the judgement of the Labour Court in the
case
Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC).
He
stated that

(o)ver
and above financial loss the Labour Court had, in Whitehead, taken
into account the actions of the employer and the nature
of the
unfair labour practice

.
[16] The second
respondent enumerated three factors which he took into account
in coming to the
amount of R 100 000, 00. These were that:
(a)
the
appellant had

lost
some income during the past 2 years as a result of not being
appointed to the post

and
the fact that he had been promoted to the position of Head of
Department in 2000; he did not say what effect these two factors
had
on the computation of compensation; in regard to this factor it is
worth noting that the second respondent did not say how
much the
income was that the appellant had lost nor did he say how much his
income went up by when he was appointed Head of Department
at the
beginning of 2000.
(b) the appellant had been in the employ of the Department for
25years and, from all accounts, had been a

loyal,
conscientious and dedicated educator

;
he
also said that the appellant had been treated

appallingly
by the [governing body] of SMJ Primary School

;
the
second respondent went on to say that the appellant had been

the
victim of an incompetent, dishonest and hypocritical [governing
body] which was tasked with the responsibility of managing a
public
school on behalf of the Department of Education

;
(c) that
the Department had failed

to
productively intervene, thereby bringing an end to an unnecessarily
long period of professional uncertainty for [the appellant]

;
he
went on to say:

as
I have already mentioned, the SA Schools Act empowers the department
to act against a [governing body] which is failing in its
duties.
This is particularly pertinent since the Department seems to be of
the view that the [governing body] had been unlawfully
constituted

.
The appeal
Section
33 of the Arbitration Act or Section 158(1)(g) of the Act?
[17] Notwithstanding the contention advanced by Mr Stewart, who
appeared for the appellant, to the effect that the arbitration
conducted by the second respondent was a private arbitration the
award of which could only be reviewed and set aside in terms of
the
narrow grounds
1
of
review set out in sec 33 of the Arbitration Act, 1965 (Act 42 of
1965), I have no hesitation in finding that this was not a private
arbitration. This arbitration was conducted under the auspices of
the third respondent. This is what the parties said in paragraphs
4
of the founding affidavit and 51.1 and 51.2 of the appellant

s
answering affidavit. Accordingly, the second respondent was
performingfunctions in terms of the Act when he conducted the
arbitration
and issued the award. This means that the arbitration
proceedings, or, the award issued pursuant thereto, can be reviewed
under
sec 158(1)(g) of the Act and is not confined to the narrow
grounds set out in
sec 33
of the
Arbitration Act. In
terms of
sec
158(1)(g)
the Labour Court is given power, despite
sec 145
,

to
review the performance or purported performance of any function
provided for in this Act or any act or omission of any person
or
body in terms of this Act on any grounds that are permissible in
law

.
The merits of
the appeal
[18] The
Department attacked the second respondent

s
finding that the Department was liable for an act of unfair
discrimination that the second respondent found had been committed
against the appellant by the governing body of the school. The
Department contended that this finding was grossly unreasonable
when
it is considered that the second respondent had found that it was
the governing body and not the Department which had committed
the
act of unfair discrimination, that the discrimination contemplated
under item 2(1)(a) can only be committed by an employer
to his own
employee and that the statutory provisions relied upon by the second
respondent to justify his conclusion were not applicable.
It is
necessary to consider and evaluate the reasons that the second
respondent gave for this finding.
[19] The first reason
that the second respondent advanced in support of his finding is
that a governing body is a statutory body
elected to govern a
school. This does not say why the Department is liable and is,
accordingly, no reason on which to base the
finding. A public school
is itself a juristic person. The fact that a governing body governs
a school does not and cannot on its
own render the Department liable
for the acts of the governing body.
[20]
Another
reason stated by the second respondent is that the purpose of a
governing body is to perform efficiently its functions
in terms of
the Schools Act on behalf of a public school. If this statement is
correct, not only does it not support the finding
that the
Department is liable for the actions of the governing body but
instead it disproves that finding because it says the
governing body
acts on behalf of the school which means that, in such a case, since
a public school is a juristic person in its
own right, the school,
and not theDepartment, is liable for the actions of the governing
body.
[21] The
next reason that the second respondent gives is that

one
of the functions of a governing body is to participate in the
process of appointing educators (section 20)

.
He
then says that a governing body

exercises
this managerial duty on behalf of the Department

.
He
does not refer to any statutory provision in support of this
statement. If anything, the statement contradicts his earlier
statement
that a governing body performs its functions

on
behalf of the school

.
He
also stated that sections 22 and 25 of the Schools Act

enable
the Department to take action against a governing body which is not
performing

.
That
may be so but that does not mean that the Department is liable for
the actions of the governing body.
[22] It
is clear from what I have said above in relation to each one of the
reasons given by the second respondent that I do not
think that they
provide any basis for the finding that he made. In my judgement
those reasons leave his finding inexplicable. I
now propose to
consider the submissions made by Mr Stewart in defence of the second
respondent

s
finding in order to determine whether there is anything in such
submissions that can demonstrate that the finding or award is
justifiable.
[23] In
his argument before us Mr Stewart maintained his contention that the
Department was liable for the conduct of the governing
body and
referred us to various sections of the South African Schools Act,
1996, (Act No. 84 of 1996) (

the
Schools Act

)
and of the Employment of Educators

Act, 1998, (Act No. 76 of 1998) (

the
Educators Act

)
.
Mr Stewart

s
submission seems to have been in response to par 13 of the founding
affidavit where it was contended on behalf of the Department
that
for conduct such as is contemplated in item 2(1)(a) must have been
perpetrated by the employer in order to ground a cause
of action. Mr
Stewart conceded that there is no express statutory provision that
renders the Department liable for the acts or
omissions of a
governing body. He submitted that the functions performed by a
governing body are related to the employment relationship
and relate
to education and, because of that, the Department is liable. Mr
Stewart referred to sections 1 (the definition of employer),
3(1)(b), 3(4) and 6(1)(b) of the Employment of Educators Act, 1998
(Act No. 76 of 1998) in support of his submission that the

Department was the appellant

s
employer. It is not necessary to quote these sections because it was
not in dispute between the parties that the appellant

s
employer was the Department.
[24] Relying
especially on the words

arises
between

in item 2(1)(a),Mr Stewart further submitted that the perpetrator of
the unfair labour practice upon which the appellant relied
did not
necessarily have to be the employer of the victim of such practice.
He submitted that it was enough if there was some employment
connection. In this regard he relied on the decision of the
Industrial Court in
Chamber
of Mines of South Africa v Council of Mining Unions (1990) 11 ILJ
52
(IC)
and on the decision of the Labour Court in
Leonard
Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd
& Others (1998) 19 ILJ 285 LC
at 300F - H for this contention.
[25] In
the Chambers of Mines

case the unfair labour practice claim was brought to the Industrial
Court in terms of sec 46(9) of the now repealed Labour Relations
Act, 1956
(

the
old Act

)
by an employers

organisation, the Chamber of Mines, against a body of trade unions
representing employees employed on various mines, namely, the
Council of Mining Unions. The definition of an unfair labour
practice which governed the position at the time under the old Act
contemplated that both an employee and an employer or their
representatives could commit an unfair labour practice. In that case
the Chamber of Mines

complaint was that the Council of Mining Unions was refusing to
agree to an amendment of the rules of a pension fund (which had
been
created by both parties for employees employed by members of the
Chamber of Mines) which precluded African, Indian and Coloured
employees on racial grounds from becoming members of the fund. The
Chamber of Mines contended that the refusal of the Council of
Mining
Unions to agree to such an amendment constituted an unfair labour
practice. See (1990)11 ILJ 52 (IC) at 60 B - 61A.
[26] At
69J-70A of its judgement in the Chamber of Mines

case the Industrial Court expressed the view that

it
is not a requirement that an unfair labour practice which is
directed at an employee or employees must be committed by their
employer but it can also be committed by a third party outside this
employment relationship provided that the labour practice has
the
effect envisaged by the unfair labour practice definition

.
This dictum appears to support Mr Stewart

s
submission. However, it was, firstly, obiter, and, secondly,
erroneous. It was obiter because the court did not have to decide
that issue since the then existing definition of an unfair labour
practice did contemplate that a representative of employees such
as
a trade union could commit an unfair labour practice - not against
employees - but against an employer of employees who employed,
among
others, such union

s
members. Also the Chamber of Mines

complaint in that case was in effect that the conduct of the Council
of Mining Unions constituted an unfair labour practice because
it
maintained or had the effect of maintaining terms and conditions of
employment that constituted racial discrimination and an
unfair
labour practice. The complaint was not that a third party had
committed an unfair labour practice against the employees.
It was
that the unfair labour practice had been committed by a
representative of some of the employers

employees against the employers.
[27] The
dictum is erroneous because neither an employee or a trade union nor
an employer or employers

organisation could bring an unfair labour practice claim to the
Industrial Court in the absence of an employment relationship

between itself as claimant and the other party or where the claim
was brought by a trade union or an employers

organisation, then between those represented by such organisations.
The Industrial Court would not have had jurisdiction to entertain
such a claim. The employer or the employers

organisation felt in its own right aggrieved by the Council of
Mining Unions

conduct in not agreeing to its request to amend the rules of the
pension fund. The African, Indian and Coloured employees could
also
have felt aggrieved by the conduct of Council of Mining Unions

in not agreeing to the amendment of the rules of the pension fund.
However, they could not bring an unfair labour practice claim
against the Council of Mining Unions for lack of any employment
relationship between themselves and the Council of Mining Unions.
[28] In
the Leonard Dingler case an unfair labour practice claim was brought
to the Labour Court by employees of Leonard Dingler
(Pty) Ltd and by
their union or a body representing them against Leonard Dingler
(Pty) Ltd and others in terms of item 3 of schedule
7 to the Act.
The other respondents were the Leonard Dingler (Pty)Ltd Pension Fund
and Leonard Dingler (Pty) Ltd Provident Fund.
At 300D - H of the
Leonard Dingler case the Labour Court dealt with a concession made
by counsel for the employer that the act
or omission that was, at
the time, contemplated by item 2(1)(a),which was alleged to
constitute an unfair labour practice, did
not need to have been
committed (or omitted?) by the employer of the employee concerned
but that it could be committed or omitted
be someone else. The
Labour Court emphasised the phrase in item 2(1)(a) that refers to

an
unfair act or omission that arises between an employer and an
employee

,
and concluded that the conduct referred to need not be that of the
employer. It went on to say:

If
a third party

s
act or omission, involving discrimination against an employee,
arises between an employer and an employee, the elements of an
unfair labour practice, as contemplated in item 2(1)(a) of schedule
7, are satisfied. This seems entirely appropriate in discrimination
cases, particularly where there is a close nexus between the
employer and a third party as in this case where the employer partly
or totally manages the retirement benefit funds

.
[29] It
is true that the above passage from the Leonard Dingler case
supports the contention advanced by Mr Stewart. I wish to make
two
points about it. First, like the passage in the Chamber of Mines

case, above, it was obiter. There, as the Court itself said in the
paragraph that comes immediately after the above passage, the
issue
before the court was whether the conduct of the employer in
interpreting and applying the rules of the benefit fund and

provident fund constituted unfair discrimination, and therefore, an
unfair labour practice. In other words it was the conduct of
the
employer - and not of a third party - that the employees and their
representatives complained of as constituting an unfair
labour
practice. Second, for the reasons given above in respect of the
Chamber of Mines

case, I am, in any event, of the opinion that the dictum is, with
respect, erroneous. No reason was given why the phrase

that
arises between an employer and an employee

in item 2(1) should not be construed to mean what it says, namely,
that the

unfair
act or omission

has to arise between parties which are employer and employee. That
phrase contemplates that the perpetrator and the victim of such
unfair act or omission must be an employer and an employee. The
phrase

against
an employee

in
item 2(1)(a) signifies that the victim of the unfair act or omission
must be an employee. It cannot be an employer . It would
have been
unnecessary to have the phrase

against
an employee

in
item 2(1) if the perpetrator of the unfair act or omission did not
have to be the employer of the victim of such unfair act or
omission.
[30] If
Mr Stewart

s
proposition and the dicta in the Chamber of Mines

and Leonard Dingler

s
cases, quoted earlier, were correct, the employees of an employer
would then be able to bring an unfair labour practice claim
against
another entity which does not employ them and, probably, employs
other persons. The Industrial Court would have lacked
jurisdiction
under the old Act to entertain such a claim and the various
statutory dispute resolution fora under the current Act,
including
the Labour Court and the CCMA, would lack jurisdiction to entertain
such a claim under the Act. This would be because
of the absence of
an employment relationship between the two parties and because, in
the case of item 2(1), the act or omission
alleged to be unfair
would not be one that, as item 2(1) requires,

arises
between an employer and employee

- and the unfair act would not be

against
an employee

in such a case.
[31] I
note that par (b) of item 2(1) refers to

the
unfair conduct of the employer.....

which is more specific and clearer than was item 2(1)(a) in terms of
specifying that the conduct concerned is that of the employer.
However, I do not think that this is one of those situations where
it can be said that the failure of the statute to be as express
in
item 2(1)(a) as it is in 2(1)(b) means that in item 2(1)(b) it
intended that there should be an employer-employee relationship
between the perpetrator of an unfair labour practice and the victim
but did not intend the same in item 2(1)(a). The history of
this
type of legislation over decades has been on the basis that an
unfair labour practice occurs between an employer and an employee
or
their representatives and that the dispute resolution fora do not
have jurisdiction if there is no employer - employee relationship.
If there was any intention to deviate from this long - established
position, the Act would have made that clear which it did not
do.
[32] Some of the
sections in the South African Schools Act, 1996 (Act No. 84 of 1996)
that Mr Stewart referred to are 15, 21, 20(10),
37(b), 60(1), 60(4).
Sec 15 provides that every public school is a juristic person with
legal capacity to perform its functions
in terms of the Schools Act.
The argument in this regard was that the exclusion of the liability
of the State in a case covered
by sec 20 meant that no such
exclusion exists in respect of cases such as this one. I do not
agree. In order for that argument
to hold, the exclusion of the
liability should have referred to the governing body and not a
public school. Sec 20(10) provides
that the state is not liable for
any act or omission by a public school relating to its contractual
responsibility as the employer
of staff employed as educators
additional to the establishment in terms of sec 20(4) and (5). Sec
21 relates to the power of the
Head of Department to allocate funds
to a governing body. This does not on its own make the Department
liable for the conduct of
a governing body.
[34] Sec 60 of the
Schools Act reads:

The
State is liable for any damage or loss caused as a result of any act
or omission in connection with any educational activity
conducted by
a public school and for which such public school would have been
liable but for the provisions of this section

.
This
provision cannot assist the appellant. The unfair discrimination
found by the second respondent in this case - which we must
assume
in the absence of a challenge - was perpetrated not by the
appellant

s
employer (the Department, or, strictly speaking, the head of
department) but by the school

s
governing body. Since neither the school, which is a juristic
person, nor its governing body was the appellant

s
employer, neither of them could commit the unfair labour practice
complained of vis a vis the appellant. Accordingly, neither
of them
could be held liable to the appellant but for the provisions of
s.60. That being so, there was no liability which by statutory
extension attached to the State.
[35] What
the various sections show is that the Schools Act makes provision
for different juristic persons and functionaries to
play different
roles in relation to school education. They do not show that the
Department is liable for the conduct of governing
bodies. The fact
that, for example, sec 19 contains provisions which enable the Head
of Department to establish programmes aimed
at enhancing the
capacity of governing bodies and the fact that under sec 22 the Head
of Department is given power to intervene
in the business of a
governing body and withdraw one or more of its functions if
reasonable grounds exist to do so does not mean
that the Department
is liable for the conduct of the governing bodies. In the
circumstances Mr Stewart

s
reliance on the statutory provisions that he relied upon cannot be
sustained.
[36] In
his award the second respondent also referred to the contention
advanced by the Department that it could not be held liable
for the
governing body

s
decision not to recommend the appellant for appointment because the
governing body was still expected to make a recommendation
after Mr
Persad had withdrawn his acceptance of the nomination for
appointment to the post. What the Department was seeking to
convey
with this contention was that it was premature for the appellant to
complain and seek to be appointed or compensated where
the governing
body could still well recommend him since Mr Persad was out of the
race for the post. This was not only a legitimate
contention but, in
my view, a correct one because the appellant still wanted to be
appointed and he was still going to be entitled
to stay in the race
for the post so that, if and when the governing body made a
recommendation, he would be available to be recommended.
The second
respondent did not deal with this contention in his award. This is
very strange because he did refer to the contention.
[37] Dealing
with this contention would have forced the second respondent to
think the matter before him through very carefully
because the
question would probably have arisen as to what would happen, if he
ordered that the appellant be paid compensation
but later the
governing body recommended him for appointment to the post and he
got appointed. The fact that the second respondent

s
finding that the Department was liable was made in circumstances
where the appellant could still be recommended by the governing
body
and be appointed demonstrates, in my view, how grossly unreasonable
the second respondent

s
decision is.
[38] Before
I conclude this judgement, I wish to refer to one matter of concern
about the second respondent

s
award. In his award the second respondent severely criticised the
governing body of the school for its decision not to recommend
the
appellant for appointment to the post. He accused it of having
treated the appellant appallingly and of being

incompetent,
dishonest and hypocritical

.
Describing any body in these terms is very serious. An arbitrator
should not describe anybody in these terms unless it is both
justified and necessary to do so. In those cases - hopefully rare -
where this is done, the person who does so should, at least,
give
reasons for such criticisms. The second respondent did not give a
single reason for describing the governing body in these
terms. I
find this quite unacceptable. There is nothing in the record to
suggest that, when members of the governing body took
the view that
Mr Persad was a better candidate than the appellant, they were doing
so for any reasons other than that they honestly
believed that Mr
Persad was a better candidate. As will be shown below, the picture
that emerges from the record is that the governing
body had
legitimate reasons to justify at least some of their concerns about
recommending the appellant for the post.
[39] Some of the concerns that had been raised by the governing body
about the appellant are that:
(1) the appellant was a level 1 educator
(an ordinary teacher) and had no managerial experience whereas Mr
Persad already occupied
a higher position, namely, that of a Head of
Department which gave Mr Persad managerial experience;
(2) Mr Persad was acting in a position of
principal already - and this in a secondary school whereas the
appellant had not acted
in a principal

s
position and this gave Mr Persad, on the face of it, managerial
experience which the appellant did not have;
(3) Mr Persad had some specialised qualifications which
the appellant did not have.
[40] The
second respondent did not anywhere in his award deal with any of
these concerns of the governing body about the appellant.
If anyone
of these concerns was legitimate and justifiable, the fact that
there were, or, may have been, other concerns that may
not have been
legitimate and justifiable does not detract from the legitimacy and
justifiability of some of the concerns. For
example, the governing
body

s
concern that the appellant had no managerial experience whereas Mr
Persad had managerial experience was a legitimate and valid
concern. I say all of this not to deal with the finding by the
second respondent that there was unfair discrimination because this
Court is not called upon to deal with that finding but I do so in
order to show how unfair and unjustified the second respondent
was
in describing the governing body as dishonest, incompetent and
hypocritical and as having treated the appellant appallingly.
Members of a governing in any school give their time and skills to
the governing body and the school without any remuneration (sec
27(2) of the SA Schools Act) and I have no doubt most, if not all,
do so out of a sense civic duty. Because of this, unjustified
criticism of this kind is even more unacceptable. The second
respondent

s
conduct in describing the governing body as having treated the
appellant appallingly and as having been incompetent, dishonest
and
hypocritical just because it had reservations about recommending the
appellant for the post and recommended Mr Persad, is
incomprehensible, wholly unjustifiable and grossly unfair to the
governing body.
[41] I have no hesitation in coming to the
conclusion that not only was the Department not liable for the
conduct of the governing
body in not recommending the appellant to
the Department but also that the second respondent

s
finding to the contrary was wholly without any basis and was grossly
unreasonable. Gross unreasonableness is one of the grounds
of review
permissible in law and, therefore, it applies in a review that is
brought under sec 158(1)(g) of the Act. In the light
of this the
Court a quo was justified in setting the second respondent

s
award aside.
[42] In the premises the appeal is dismissed with costs.
________________
Zondo JP
I agree.
_____________
Comrie AJA
I agree.
_____________
Jappie AJA
Appearance:
For the
appellant: Adv. A.M. Stewart
Instructed
by: Cheadle Thompson & Haysom
For the
respondent: Adv. V. Soni SC
Instructed by: The
State Attorney
Date of judgement: 23
May 2003
Date of
hearing: 11 March 2003
1
The
grounds of review provided for in sec 33 are that:
( 1) any member of an arbitration tribunal has
misconducted himself in relation to his duties as arbitrator; or
( 2) an arbitrator tribunal has committed any gross
irregularity in the conduct of the arbitration proceedings or has
exceeded its
powers; or
( 3) an award has been improperly obtained.