Case Number: PSES CAR 000021
Province: Western Cape
Applicant: J A GELDENHUYS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Arbitrator: J KRIGE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 000021 WC
In the arbitration between:
J A GELDENHUYS APPLICANT
WESTERN CAPE EDUCATION DEPT RESPONDENT
1 . DETAILS OF HEARING AND REPRESENTATION
The arbitration was held on 23 February 1999 at the offices of the Western Cape Education Department, Cape Town. The grievant was represented by Mr J K Rushtin of SADTU and Mr R Mathews assisted by Mr M S Fakler represented the Department.
2 .THE ISSUES
The issue in dispute relates to the failure of the WCED to appoint the grievant in a permanent capacity.
3 . SURVEY OF THE EVIDENCE AND ARGUMENT
3.1 The grievant had been employed in a temporary capacity for approximately 17 years. She had taught at various primary schools that were detailed on a list that was part of the exhibits.
3.2 It was not in dispute that the grievant had been in a substantive post at the Dellville Park, Primary School, George in June 1996 and had she remained there she would have been protected in terms of Resolution 3 of 1996 at that time and I may add, Resolution 6 of 1998 as well.
3.3 She stated however that in June 1997 she sought and obtained a release from her school to take up a post with the Sunderland Primary School in Facreton in the Cape as a substitute teacher. The incumbent of that post Ms Schreuder had applied for sick leave until the end of June 1997. From July to December 1997 the grievant was employed in a temporary capacity at the A Z Berman Primary School, Mitchell’s Plain. Thereafter she became pregnant and was unemployed for the first six months of 1998 whereafter she took up a temporary at the Matroosberg Primary and thereafter from October to December 1998 at the Nooigedacht Primary School. From January to March 1999 has been employed at the Belhar Primary School, in a vacant substantive post.
3.4 The grievant testified that she wanted to move from the Dellville Park Primary School in George to Cape Town because her husband was teaching in Cape Town. She went to see Mr D Pillay who was the Head of Redeployment at the request of Mr J C Fortuin the principal of Sunderland Primary. Mr Pillay said that a release could be given from one school to another because she was up for redeployment. She also saw Mr N Bailey at the Department’s office, who telephoned the area manager who confirmed that she could get a release from her school. As a result of a conversation with Mr Ohlsen the Head of the Dellville Park Primary School she was given a release (vrystelling) from that school “ten einde ‘n pos van plaasvervanging by Sunderland Primêr op te neem”. I note of course that the lease was signed by Mr Jacobs the “Waarnemende Prinsipaal”.
3.5 The grievant had declared herself voluntarily in excess on 10 October 1998. This was done because of the LIFO (“last in first out” principle) and teachers were going to be declared in excess and that the only way that she could be made permanent was to declare herself redeployable. She was not informed that she had to take up a permanent post at the time. She was informed that she stood a better chance to be made permanent if she as on the redeployment list. This was confirmed by Mr Theron the area manger, she said. As a result of these intimations she decided to declare herself redeployable. She stated further that she had no idea that it would be detrimental to her interests should she move to Sunderland Primary. She thought her status would be the same. She thought that she was a temporary teacher in a substantive post. She stated further that had she understood the true position, namely that she would lose her rights, she would not have moved. She would not have taken a step that would have been to her disadvantage.
3.6 It was put to her under cross-examination and she conceded this that, she knew she would be in a substitute post at Sunderland Primary. I may add that there is a difference between a substantive post and a substitute post. A temporary teacher in a substantive post would be protected whereas a temporary teacher in a substitute post would not be protected.
3.7 Mr Enver Hassen testified for the Department. He was the Deputy Chief Education Specialist and he served on a Special Committee with regard to redeployment and was part of the negotiation team in the IRLC. He was familiar with the various circulars. He testified that not all permanent educators were protected, only some. It depended on when they were appointed and if they were in substantive posts or not. Temporary educators in substantive posts who were appointed before 1 July 1996 were granted protected status and were treated as if permanent. This is in accordance with Resolution 3 of 1996. He testified that the use of the word “treated” meant that those educators who were appointed in non-substantive posts, and in temporary posts, had no protection and were appointed on a contractual basis. The use of the word “treated” meant that those who were protected in terms of Resolution 3 of 1996 would have the same status as permanent educators e.g. the Department could not terminate their contract. This was in turn confirmed by Resolution 6 of 1998.
3.8 He testified that the grievant waived her rights by moving away from her substantive post that she had occupied in 1996. When she left that substantive post for a temporary substitute post she lost her protection.
4 . EVALUATION
4.1 The grievant’s representative argued that the grievant was in a vacant substantive post in July 1996. Mechanisms existed to make her permanent. The principal at the time had neglected to do so and his has operated to her disadvantage. She had applied for a permanent post in 1995 but this was refused on the basis that the post was erroneously advertised.
4.2 It was further argued that the grievant had applied for a transfer and had been assured that this would not affect her status that is why she had to be released from Dellville Park Primary to Sunderland Primary. Nowhere was she informed that she would lose her protected status and that this has operated to her disadvantage. It was further argued that the reason why the grievant had declared herself voluntarily in excess was because she saw this as an avenue to becoming permanent. It was further argued that she had never left the post, and that she had been given permission to leave it and had been provided with a release. It was further argued that because she was now in a vacant substantive post in Belhar that she should now be granted protected status in terms of Resolution 6 of 1998. She could be appointed permanently at that school. The Department’s actions had operated to her disadvantage.
4.3 The relevant clause of Resolution 6 of 1998, paragraph 3.8 reads as follows :
“An educator appointed in a substantive post (an approved post on an approved staff establishment) prior to 1 July 1996 and who meet the requirements for appointment, must be appointed on a permanent basis”.
4.4 This is in contrast to paragraph 1.9 subsection (b) subsection (ii) of Resolution 3 of 1996 published in the Government Gazette of 31 May 1996 No 17226 (Regulation Gazette No 5711). It reads as follows :
“1.9 (b) (ii) For the purposes of redeployment, temporary educators employed (not as replacements) in substantive posts (an approved educators post on an approved staff establishment) will be treated in the same way as permanent educators. In respect of substitute educators the educator in whose place such substitute was made shall come into consideration for redeployment on the same basis as other educators and the contract on the substitute educator shall terminate on the date of the redeployment of the educator occupying the relevant post or the date on which the educator, occupying the post, takes the voluntary severance package. Notice in this regard shall be served on a relevant substitute educator at least on month prior to the termination of a contract. For the purposes of this agreement, where the services of substitute educators have been utilised in such a manner that they have been denied the opportunity of being appointed in a substantive post in a temporary or permanent capacity, such educators’ position will be considered individually on their merits for being treated in the same manner as permanent educators”. (My emphasis)
4.5 It was argued by the Department that an educator only fell under the provisions of Section 3.8 if the educator had remained permanently in that post after 1 July 1998 and who fulfilled the requirements thereof. Indeed it was the Department’s case that paragraph 3.8 would be applicable if she had remained in her post. She would then have been entitled to a permanent appointment.
4.6 It cannot be said her services as a substitute educator (the grievant) had been utilised in such a manner that she was denied an opportunity of being appointed permanently in a substantive post. She was disadvantaged because she left Dellville Park Primary to join her husband. No proper case has been made out that she remained in a substantive post. It was not explained how her services had been utilised such that she was denied an opportunity of being appointed permanently. It was up to her to apply to be made permanently. She had after all applied in 1995.
4.7 As I understand redeployment as is set out in clause 1.9 (c) of Resolution 3/96 if an educator is on sick leave, then his/her post is not vacant and a temporary who fills it is a substitute, not temporarily in a substantive post.
4.8 Clause 1.9 (b) (ii) of Resolution 3/96 cannot be applicable because if the grievant left because she thought she was improving her chances of being made permanent, and to be with her husband, then it cannot be said that she was disadvantaged by the Department.
4.9 It may also be noted that the grievant was not redeployed. The letters from the principals of Dellville Park and Sunderland make this clear. Although redeployable, she was released to take up a substitute not a substantive post. She had not been declared in excess as is required by Resolution 3 of 1996.
4.10 It should be noted furthermore that for Clause 1.9 (b) (ii) of Regulation 3 of 1996 to be applicable the grievant should have to show in what manner her “services were
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CAR 000021
APPLICANT J A GELDENHUYS
RESPONDENT DEPARTMENT OF EDUCATION
ARBITRATOR J KRIGE
DATE OF ARBITRATION 23 FEBRUARY 1999
VENUE CAPE TOWN
APPLICANT MR J K RUSHTIN
RESPONDENT MR R MATHEWS
DATE OF AWARD