High school deputy principal stripped of promotion for failure to disclose misconduct

An Eastern Cape deputy high school principal, fined R3,000 in 2006 for arranging and attending a matric after-party, has been found to have been irregularly appointed and now must reapply for his job. 

The Education Labour Relations Council has ordered the Eastern Cape department of education to remove George Louw, deputy principal of Gelvandale High School in Gqeberha, from his position after his appointment was challenged by several other teachers who had applied for the post. 

The dispute is related to an alleged unfair labour practice involving a promotion, particularly in regard to the non-appointment of several of the job applicants.

Teachers Edward Thomas van Heerden, Sam Madatt and Sherine Booysen had all applied and were not shortlisted, while Standon Rowen Potgieter and Lindton Le Grange had been shortlisted and interviewed for the position, arbitrator Jonathan Gruss was told. Ultimately, Louw was the successful candidate and was appointed as deputy principal. 

The unsuccessful applicants lodged a dispute against the appointment, claiming that Louw had been convicted of misconduct in 2006 for arranging and attending a party that happened after the matric ball. He was sanctioned to a fine of R3,000. 

In his application for the position Louw had responded “No” to a question on the education employment profile form asking, “Have you ever been convicted of misconduct?” 

The applicants claimed that Louw was therefore guilty of misrepresentation, and so his promotion to the advertised position was unfair. They argued that his appointment should be set aside and the post be re-advertised. They also asked that the interviews be conducted by an independent panel. 

In giving evidence under oath, Louw told the ELRC that he was charged with misconduct in 2005. He said there had been a matric ball followed by an after-party . He said pupils and parents had asked him to attend the after-party to ensure that the children were safe and that discipline was maintained. 

Louw said he was called in by the principal after the party. The principal said he had received a report claiming that Louw had arranged and attended an after-party. He said that this was against school policy and Louw was asked to sign a verbal warning. 

Louw admitted he had organised and attended the party and apologised. After this, a representative from the education department’s district office arrived at the school and reported that a complaint letter had been faxed to the department alleging that there had been an inappropriate relationship between Louw and a pupil at the after-party.

The principal informed the department that he had dealt with the after-party matter . He indicated that he was unaware of any allegations relating to the reported inappropriate relationship. Louw was then charged with this and found not guilty. 

However, because he admitted to attending the party he was fined R3,000 for violating Gelvandale High School’s policy. 

Louw told the ELRC that he was not the only teacher who had attended the party — two other teachers had also been present and neither was charged. He believed he was the only one charged because he had signed a letter sent out to parents confirming the request that he would be attending the after-party. The letter was submitted to the department district office. 

Louw said he had indicated on his job application that he had never been convicted of misconduct because he had been found not guilty on the charge of inappropriate conduct with an unnamed pupil. He did not believe he was guilty of misconduct and had paid the R3,000 fine as an admission that he had violated school policy — not misconduct. 

When told he would not have been fined if he was not guilty of misconduct, Louw said this now made sense, but at the time he applied for the job he believed he was not convicted of the charge. When told that his failure to disclose the misconduct conviction had put him at an advantage, he said this had not been his intention. 

Gruss, in evaluating the evidence, noted that there were three basic requirements for a fair appointment or promotion: a fair procedure; no discrimination of any candidate and a final decision that must not have been grossly unreasonable. 

He said Louw’s rationale was that though he was charged with having an inappropriate relationship with a pupil at the after-party he was acquitted on that charge and was fined R3,000 for arranging and attending the event. 

It was only under cross examination that he conceded it made sense that he had been found guilty of arranging and attending the after-party. Gruss asked Louw if there had been alcohol consumption at the party and he had conceded that he had been inside with the parents, but believed matriculants had been drinking outside. 

Gruss said while much of the arbitration had related to the allegations of Louw’s alleged inappropriate relationship as well as his arranging and attending the after-party and the fine he paid, the involvement of alcohol in the incident had been downplayed. 

“I find it highly improbable concerning the serious nature of the allegations, the harsh sanction of a R3,000 fine that Mr Louw forgot that he was actually convicted of misconduct.” 

It was further argued that in terms of the Criminal Procedure Act, offenders can apply for expungement of their criminal record after 10 years from the date of the conviction. Louw should therefore not be “held captive by an insignificant offence that happened 20 years ago” and therefore the applicant’s requests for his removal should be dismissed. 

But Gruss said reference to the Criminal Procedure Act was misplaced as this was not a criminal matter, and that Louw’s previous conviction for a disciplinary transgression on its own did not serve as a disqualification. 

He said it was Louw’s failure to disclose his conviction that had given him an unfair advantage in that the interview panel was not able to evaluate his suitability for the position. When asked why his transgression had not appeared on his record, Louw’s representative said this was due to “administrative deficiencies”.

“What does concern me is that all the applicants were aware of Mr Louw’s previous disciplinary transgression, and I ask myself, why was the interview panel as well as the SGB not aware of the disciplinary transgression?” Gruss asked. 

He said he believed the applicants had been able to prove that unfair labour practice had occurred due to a procedural irregularity caused by the omission by Louw to disclose his disciplinary record. 

It was found that the department had failed to ensure that Louw’s disciplinary records had been properly updated, resulting in those involved in the shortlisting of applicants not being able to detect the inaccuracy in Louw’s application regarding his previous disciplinary record. 

“I therefore determine it to be appropriate under the circumstances to set aside the appointment of the incumbent, Mr Louw, and direct that the post of deputy principal be re-advertised and that the shortlisting and interviews be conducted by an independent panel,” Gruss ruled. 

He said the Eastern Cape education department should allow the school’s governing body to interview all the applicants and that Louw be entitled to apply when the post is re-advertised and that he be considered for the post, if he indicates that he was previously convicted of misconduct. 

The department was free to appoint an independent panel to handle the process, but it would still have to allow the SGB to ratify the outcome of the interviews and make its own recommendation. 

It was found that the five applicants had been denied an opportunity to compete fairly in their candidacy for the advertised position of deputy principal at Gelvandale High School. 

The department has been given 90 days to re-advertise the post and instructed to consider Louw’s candidacy should he apply.