Case Number: PSES 82-04/05 LP
Applicant: MAAKE (SADTU)
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Arbitrator: N ENOCH
IN THE LABOUR RELATIONS COUNCIL
IN THE MATTER BETWEEN
SADTU obo Maake (Employee Party) AND DOE-LP (Employer Party)
DETAILS OF THE HEARING AND REPRESENTATION
The hearing was held on 03rd and 6th August 2004, at the Department’s Headoffice, Polokwane, Voorwaarts building. Both parties attended the arbitration proceedings. The process assumed as outlined by the notice dated 14th July 2004.
THE ISSUE IN DISPUTE
The Applicant claims that the Department has breached her contract by changing her initial contract from the permanent status to temporal which has later on caused her to loose her job.
BACKGROUND TO THE ISSUE IN DISPUTE
The Applicant joined the Department of Education as a temporal Educator in 1992 at Mmalahla Primary School. The Applicant was appointed to substitute Ms MM Nkoana. Ms Nkoana was acting as the HOD at the same school and due to undisclosed issues Ms Nkoana reverted back to her previous position. In April 1997 Mr Hlaka resigned and the Applicant was then appointed to that position which was left vacant. On the 09th May 1997 the principal recommended that the Applicant be appointed permanently to the post left by Mr Hlaka.
The Department approved the recommendation that the Applicant be appointed to the post of Mr Hlaka. The approval was dully granted in 1999. On the 20th March 2002, the Department sent a letter to the Applicant informing her about the intention to withdraw the alleged irregular appointment. The Applicant did not respond the said letter. On the 26th April 2002, the Department sent the Applicant a reminder. On the 06th May 2002 the Applicant responded and referred the Department to address all the issues concerning her employment contract to the Union.
SURVEY OF EVIDENCE AND ARGUMENT
Respondent Party called witnesses to testify and the witnesses were sworn in. The first witness of the Respondent led evidence inline with the letter dated 09th May 1997 whereby she was recommended the permanent appointment of the Applicant to the post left vacant by Mr Hlaka. The witness was evasive to all the questions asked by the Respondent and he continued to mislead the proceedings even during cross-examination. To most questions directed to him, he was just saying “I do not know why it happened that way”
The second witness of the Respondent led evidence inline with the Restructuring process and gave the reasons as to why the Respondent terminated the Applicant’s contract. The witness testified that the Applicant was erroneously appointed to the permanent position after the cut off date of July 1996. He confirmed that the Applicant was a temporal Educator since 1992 at the same school and he further testified that it was not going to be possible that the Applicant could have been appointed permanently because she was initially appointed to the post of CS 1 on behalf of Ms Nkoana who was also temporarily appointed as HOD.
During the cross-examination he was asked who has the powers to appoint or terminate the Applicant’s contract. His response was that all the powers related to the contract termination or appointments are assigned to the SG of the Department. He was further asked as to why the written letter dated 26th April 2002. The witness said that it was one of his responsibilities to advise his superior or cautioned his subordinates if things are not inline with the Departmental policies.
The Applicant Party called two witnesses to testify in relation to the letter dated 30th August 2001. Both witnesses were sworn in. The first witness’s oral evidence added nothing to the facts related to the case in dispute. The Applicant’s witness was asked to sketch out the relationship of the case of Matshete and Manyelo in relation to the Applicant’s case, his response was that he heard all this by the principal but he was not sure about the connection of the two cases. During cross-examination he was asked if he had any knowledge about the creation of the post. His response was that he does not know. He continued with his evidence but not responding to the related matter.
The second witness, who was also party to the memorandum/letter dated 30th August 2001, testified that he was never interviewed for the position but he was appointed in 1995. He did not link the two cases between himself and the Applicant’s case. When asked about the knowledge of the issue in dispute related to the case of the Applicant he did not connect the two cases.
ANALYSIS OF EVIDENCE AND ARGUMENT
The contract of employment is a contract to which the ordinary principles of law of contract are applicable in respect of termination.
Since 1992 the Applicant was appointed on 12 months fixed term. The Applicant was appointed as a CS1 Educator substituting Ms Nkoana who was by the time acting as an HOD. The Applicant was aware of her contract obligations. Looking to the whole issue in dispute, the Applicant was made to believe that her position was that of a permanent Educator after receiving the letter of appointment made by the principal’s recommendation during May 1997. It is crystal clear that that principal acted malafide during that period. The principal was aware of the cut off the date 1996 July or he deliberately misled the Department and failed to observe the law that governs the Education profession .
Looking at the substantiveness of the case the Respondent has acted in accordance to the issue by revising an irregular contract because the Respondent did not have any powers which override the collective agreement. Both parties were aware of the Resolution and also the issue of all the vacant posts appointment process. The Applicant was not even a beneficiary of the Redeployment process and her appointment to the post of Mr Hlaka will have caused more harm to the implementation of the Restructuring process. Prior her erroneous appointment in 1999, the Applicant was always appointed on substitute post not a substantive post. The Applicant Party did not address me about the 1992 appointment to a substantive post. The Applicant served the Department more that five years on a substitute post and the cut off date found her on substitute position and the Applicant Party was automatically disqualified to be appointed on that capacity of a permanent Educator.
Looking at the procedure, the Applicant was not prejudices because prior any action taken, the Applicant was made aware about the whole process. The Applicant was also given the opportunity to submit her own submission which she initially failed to comply and she acknowledged the Respondent’s second reminder. It is my understanding that the Respondent has acted within the ambit of good administration whereby it has corrected the wrong that could not justify the process. The Resolution made it clear about temporal employees appointed on substantive post and also temporal employees appointed on substitute post.
After a thorough analysis of the argument made by the Applicant in its closing argument there are no similarity between Mr Matshete’s contract and that of the Applicant. During the time when Mr Matshete testified he failed to connect the relationship between his appointment status and the one of the Applicant. Both the Applicant’s witnesses added nothing regarding the case of the Applicant.
In the result, therefore, I can find no basis for concluding that the Respondent has acted in breach of any obligation imposed by collective agreement or law by failing to appoint the Applicant as a permanent Educator. The Respondent’s decision was well taken because if such an irregular act was accepted will then be against the collective agreement reached by all the stake holders within the Education Fraternity.
I accordingly made the following award
The Application is dismissed
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 82-04/05 LP
APPLICANT MAAKE (SADTU)
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONTRACT OF EMPLOYMENT
ARBITRATOR N ENOCH
DATE OF ARBITRATION 3 & 6 AUGUST 2004
The application is dismissed.
DATE OF AWARD