Case Number: PSES GAAR 004057 NW
Province: North West
Applicant: MR C VAN DER MERWE
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Arbitrator: THABO NGOBENI
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 004057 NW
In the arbitration between:
C VAN DER MERWE APPLICANT
DEPARTMENT OF EDUCATION (NORTH WEST PROVINCE) RESPONDENT
1 . INTRODUCTION AND TERMS OF REFERENCE
1.1 The arbitration took place on 11 July 2000 at the Mafikeng Education District Offices. Mr. P Moiloa represented the employer and Mr. C van der Merwe presented his own case. The parties defined the issues that had to be arbitrated on as follows;
• Alleged unilateral stoppage of foreign allowance and housing allowance due to the Grievant by the Employer.
• Alleged failure by the Employer to give an undertaking to pay the relocating costs of the Grievant as per agreement in the previous dispensation.
1.2 Against this background, I am to decide whether the said allowances were stopped in a fair way and make a determination accordingly.
2 .THE EMPLOYER’S CONTENTIONS
2.1 The Grievant is employed as a teacher at the Mafikeng High School. It is the contention of the Employer that the Grievant was not until 1 January 1996 in the formal employ and payroll of the employer. The letter of transfer from the Department of Education in Cape Town has the following as the conditions that accompany the transfer, retention of rank, salary and where the Grievant is posted at the time the transfer took affect.
2.2 The employer also intimates that at the time when the Grievant was transferred to the North West Department of Education the said allowances had already been stopped. Prior to this eventuality, the department of Education in the Cape of Good Hope seconded the Grievant to the former Republic of Bophuthatswana. The Department of Education in the former Republic of Bophuthatswana was not paying anything towards the Grievant.
2.3 All his proceeds were paid for by the administration of the Province of the Cape of Good Hope. The employer argues that the reasons for the existence of the agreement referred to be no longer in place since the democratic elections in 1994. The employer also intimated that the dispute is wrongly placed by the Grievant since it is not the employer that stopped the said allowances.
3 .THE GRIEVANT’S CONTENTIONS
3.1 The Grievant contends that he was employed by the Province of the Cape of Good Hope and sent to the former Republic of Bophuthatswana as a sequel to an agreement between the said republic and the Republic of South Africa. In terms of the said agreement, it is the contention of the Grievant that he is entitled to a six months written notice prior to the termination of the allowances. It is further intimated by the grievant that the Province of the Cape of Good Hope paid for his salaries including the said benefits. Such were paid from 1983 - 1995 in August. There is no dispute to the fact that the Grievant was only transferred to the North West Department of Education at the beginning of 1996. The Grievant also intimated that in terms of the said agreement he was entitled to the foreign area allowance since the two republics were understood to be independent from each other.
3.2 He contends that the employer breached the agreement by failing to give him a six months written notice and guarantee payment for his relocation to the Cape. In this context the Grievant disputes the procedural fairness through which the stoppage of the allowances was done. Reference has been made by the Grievant to Decree No.1 of 1994 clause 8 to the effect that in terms of the said clause; his entitlements are part of the liabilities and obligations as carried by the former Bophuthatswana government.
4 .DISCUSSION OF THE CONTENTION
4.1 In discussing the contentions, it is important to make reference to the agreement that has been referred to. The agreement is clearly a government to government agreement. Article 1(a) of the agreement stipulates the following;
“The Department of Education of the Province of the Cape of Good Hope shall after the date on which Mafikeng is incorporated in Bophuthatswana have the right to establish, conduct and maintain in Mafikeng such primary and high schools within the meaning of the law applicable in the Republic of South Africa as may be considered necessary and desirable”.
4.2 It is therefore clear that the responsibility for such schools lay with the Province of the Cape of Good Hope.
4.3 It is therefore important to look at the staffing of the agreement. This is found in Article 2(a), which stipulates the following;
“the staff, whether professional, clerical or otherwise, and the equipment required in connection with or for the purpose of anything done by the Department in terms of article 1 shall be provided at the expense of the Administration of the Province of the Cape of Good Hope”.
4.4 The interpretation of this clause means that the Grievant was part of the staff of the Department of Education of the Cape of Good Hope. This is in spite of the assertion by the Grievant that this move to the former Bophuthatswana meant something to the contrary. There is nowhere in the agreement where mention is made that the Republic of Bophuthatswana will take responsibility for the welfare of the Grievant. It was and remained the responsibility of the Province of the Cape of Good Hope until the new dispensation.
4.5 The issue raised by the Grievant around the six months notice due to him merits attention. The agreement as said before is a government to government agreement. Reference to the six months is limited to the signatories of the agreement of which the Grievant is not one of them. Article 5 (a) of the agreement makes this point clearly;
(a) “this agreement shall come into operation on the date of incorporation of Mafikeng and may be terminated by either party giving six months’ written notice to the other party through the diplomatic channel”.
4.6 The Grievant has conceded that everything that is due to him as an employee was paid not by the government of Bophuthatswana. The logical conclusion is that the Grievant remained in the employ of the Province of the Cape of Good Hope although delivering his service in a “foreign country”. He was at no stage employed by the Government of Bophuthatswana and cannot have any claim in the context of the obligations and liabilities that are referred to in the Decree No.1 of 1994. The government of the Republic of Bophuthatswana had no obligation towards the Grievant in terms of the existing agreement.
4.7 The basis for the foreign area allowance was recognition of Bophuthatswana as an independent country. That fell away in 1994. It is therefore not possible to expect a six months’ notice from a government that is non-existent. It was communicated to the Grievant that the premise for the payment of such allowances has fallen away and thereby the allowances.
4.8 The housing allowance it was agreed by the parties that it was not stopped but changed. In terms of the agreement the Grievant was getting 100% housing allowance. At the moment he is entitled to the same percentage as other teachers. I find nothing untoward with that.
4.9 The matter of the relocation payment is part of the agreement that has been referred to and the employer for the same reason as the allowance does not have the responsibility to pay for the relocation costs of the Grievant.
5 . DETERMINATION
5.1 Accordingly my determination is that the issues that the Grievant has brought to this arbitration:
5.1.1. The employer did not stop the foreign area allowance, as the employer had no authority over the payment of the Grievant until 1 January 1996. At this time the allowance was already stopped. The Western Cape Education Department is the one that stopped the allowances.
5.1.2. There is nothing untoward with the reorganization of the housing allowance after the transfer of the Grievant to the North West Department of Education.
5.1.3. The employer has no obligation to pay the relocation costs of the Grievant.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR 004057 NW
APPLICANT MR C VAN DER MERWE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR THABO NGOBENI
DATE OF ARBITRATION 11 JULY 2000
APPLICANT IN PERSON
RESPONDENT MR P MOILOA
1 Accordingly my determination is that the issues that the Grievant has brought to this arbitration:
1.1. The employer did not stop the foreign area allowance, as the employer had no authority over the payment of the Grievant until 01/01/1996. At this time the allowance was already stopped. The Western Cape Education Department is the one that stopped the allowances.
1.2. There is nothing untoward with the reorganization of the housing allowance after the transfer of the Grievant to the North West Department of Education.
1.3. The employer has no obligation to pay the relocation costs of the Grievant.
DATE OF AWARD