Case Number: PSES
Province: Western Cape
Applicant: A W AFRIKA
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 5 May 1998
Arbitrator: L N VAN ZYL
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: PSES
In the matter between:
A W AFRICA APPLICANT
DEPARTMENT OF EDUCATION RESPONDENT
(WESTERN CAPE PROVINCE)
1. THE HEARING:
.1 The arbitration hearing was held in Cape Town on 4 May 1998 in accordance with a comprehensive med-arb terms of reference agreement between the Education Labour Relations Council, the Western Cape Education Department, the South African Democratic Teachers Union and the Cape Professional Teachers Association.
1.2 The grievant was represented by Mr Cornelisson of the Cape Professional Teachers Association and the Department by Ms Ward.
1.3 The issue in dispute related to the grievant’s contention that he had been induced into volunteering for retrenchment in 1996 by an inaccurate estimate of his severance package presented by the WCED. He contended that, had it not been for this alleged misrepresentation, he would have volunteered for retrenchment.
1.4 The parties discussed the dispute informally in an attempte to medite the matter in accordance with the terms of reference. When it became apparent that a settlement of the dispute would not be forthcoming , a nons-settlement certificate was duly completed and the matter resumed as an expedited arbitration in terms of the collective agreement.
2. FACTS OF THE DISPUTE:
2.1 Mr Africa was Principal of Princeton Secondary at Mithells Plain.
2.2 in 1996 Mr Africa made enquiries about the sum of money he
would receive should he volunteer for a severande package.
2.3 In order to make the aforesaid enquiry Mr Afrika was required to complete a document referred to as annexure “D” to Resolution 13 of 1996. This proforma document contains a provision to the effect that he indemnifies the WCED against any potential claim which may arise for inaccurate calculations . This provision reads as follows:
“I understand that the administration of these benefits is a function of the Department of Finance, that the WCED is able to give estimated amounts only and that it will not be held liable for any inaccurate calculations”.
2.4 Mr Afrika completed the aforesaid document on 25 May 1996.
2.5 On 5 June 1996 Mr Afrika sought to “buy back” years of service in order to enhance his severance package pay out. The evidence was that educators had realised that it made financial sense for them to buy back service in order to increase their severance packages and, as Mr Afrika puts it, this was “the fashion” at the time. It is significant that in this document of 5 June 1996 Mr Afrika attempted to buy back service for periods during which he was temporary employed and for a period during which he was not employed whilst completing his studies.
2.6 Mr Afrika contends that, in response to his enquiries relating to the amount of money he would receive as a severance package , he received a document from the WCED which purportedly set the pension component of his severance package at R300 464,89. He contends that he did not check this calculation. Mr Afrika was unable to produce this document at the arbitration contending that he had probably destroyed it shortly after receipt thereof. Mr Afrika furthermore contended that this amount motivated him to volunteer for the severance package. He testified that if he had not been presented with this sum of money as his severance package, he would not have volunteered for retrenchment.
2.7 Mr Afrika volunteered for retrenchment with effective date of the termination of his contact of employment being 30 September 1996.
2.8 On 24 January 1997 Mr Africa received a severance package of R256 459,21. This sum was reduced marginally to take account of a personal loan.
2.9 The difference in the two packages (R300 464,69 en R256 458,21) is attributable to the number of years of pensionable service credited to Mr Afrika in applying the standard formula for calculating severance packages. Mr Afrika had fourteen years of pensionable service. The calculation of the amount of R300 464,89 credited him with 16 years op pensionable service. Mr Africa contended that the crediting of 26 years of service is wrong and that by rights he is only entitled to R256 459,21,
2.10 On 7 February 1997 Mr Afrika approached an official from the WCED who worked with the calculation of severance packages in order to establish what the extent of his package would be if he had fourteen, sixteen and eighteen years of service. Mr Afrika produced documentation at the arbitration depicting the refused calculations. It is significant that the document reflecting the fourteen year calculation had a heading marked “sonder dienskoop”.
2.11 On the same day, being 7 February 1997, Mr Afrika wrote to the WCED recording his dissatisfaction at receiving some R45 000,00 less than he had expected to receive.
2.12 A dispute was then declared and various meetings took place in order to address Mr Afrika’s problem. Mr Afrika contends thta during the process officials of the WCED accepted that the Department was at fault. In this respect he contended that his matter had been handed to the State Attorney for a decision.
2.13 Mr Afrika furthermore gave evidence to the effect that he repeatedly called for documentation which the Department either refused to provide him or had somehow got lost. He contended that he was looking for the document which he said cited his severance package as R300 464,89. This failure on the part of the WCED, he contended, proved that the WCED had misinformed him about the extent of his package.
2.14 The WCED acknowledged not providing Mr Afrika with information which he sought. They contended that there was some confusion about what he was seeking although it is apparent that there was no adequate explanation for their failure to provide him with the information he sought.
2.15 At the arbitration the WCED produced a copy of the document which is contended was handed to Mr Afrika on or about the 16th of October 1996 citing his severance package at R256 459,21.
3.1 Mr Afrika has three major problems with his case. In the first instance he signed the indemnity referred to above when he applied for the information. Secondly he could not produce the document which he contends induced him into volunteering for retrenchment. The document which he did produce generated by the Department’s computer in April 1997 was one which could very easily have been obtained by making “what if” enquiries through the Department on buy back options. Thirdly, it is significant that Mr Afrika knew that he was only entitled to being credited with fourteen years of pensionable service and indicative hereof were his attempts at buying back service. If he had indeed received the document which he says showed that he was entitled to a severance package of some R300 000,00 then this document would also have shown that he was being credited with 16 years of pensionable service, which he would, in turn, have known to be incorrect. During the med-arbitration process he testified that he did not check the calculations.
3.2 This concession, i.e. that he did not check the calculation is problematical. Having signed the indemnity contained in annexure “D” there is, I believe, also an onus on him to check the calculation.
4.1 I am of the view that Mr Afrika has not succeeded in establishing un unfair labour practice. I accordingly recommend that he withdraw his dispute.
4.2 There are two further issues which require comment. The first related to the statements made by the officials who believed Mr Afrika’s case was good. Clearly any view expressed by an official of the WCED on the merits of this case would not in any way impact on the WCED’s legal obligations. The second issue os tje fact that the WCED did not disclose the information which Mr Afrika sought. Obviously this does not necessarily mean that the WCED fabricated its case, having said that, Mr Afrika does have my sympathy in this regard. He was entitled to the information and should have received it on request.
L N VAN ZYL
DATED: 5 MAY 1998
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES
APPLICANT A W AFRIKA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR L N VAN ZYL
DATE OF ARBITRATION 4 MAY 1998
APPLICANT MR CORNELLISON
RESPONDENT MS WARD
It is found that Mr Afrika has not succeeded in establishing un unfair labour practice. It is accordingly recommend that he withdraw his dispute
DATE OF AWARD 5 MAY 1998