Case Number: PSES 13 WC
Province: Western Cape
Applicant: MS D R BUSH
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 14 May 1998
Arbitrator: MARY SIMONS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 13 WC
In the arbitration between:
MS D R BUSCH (represented by Mr Rix, community worker) APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . THE HARING
1.1 The arbitration hearing was held in Cape Town on 6 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 Rix, husband of Mrs Busch and a community worker, and the department by Mr K Petersen.
1.3 The issue in dispute, lodged by the Grievant, is that she was subject to an unfair labour practice because of an administrative error. The department provided her with a state guarantee 10 months after her first application and not within the usual period of two to three weeks after application. This delay unfairly and prejudicially excluded her from the housing market for a period of 13 months.
2 . FACTS OF THE DISPUTE
2.1 Ms DR Busch applied to the department in October 1996 for a state guarantee in order to purchase a house for which she required a mortgage bond. Numerous attempts to obtain the guarantee from the department were unsuccessful and the matter of the state guarantee was only provided in August 1997. There is no dispute between the Grievant and the department as to her right to a state guarantee. The Grievant seeks compensation for the period of her exclusion from the housing market and recognition of the hardship of continue living in rented accommodation whilst her peers and colleagues were living in their own homes.
3 . FURTHER EVIDENCE
3.1 The department does not have a remedy for the Grievant’s claim and this is why the department and the Grievant have brought the matter to arbitration.
4 . DISCUSSION
4.1 The question of appropriate remedy was central to the discussion. The Grievant generously requested the equivalent of her housing subsidy for the thirteen month period from 1 March 1997 to 31 March 1998. This calculation is based on the period of time it took her purchase her house once having made an offer. It was accepted by the Grievant and department that the Grievant is not requesting any additional compensation for exclusion from the housing market or for the inconvenience of continued living in rented accommodation.
5 . AWARD
5.1 For the reasons stated above I find that the Grievant has proven an unfair labour practice arising from an administrative error on the part of the department. The Grievant’s claim is accordingly acknowledged. I also acknowledged that the department does not have a remedy and that the department’s regulations under normal circumstances are reasonable, namely, that the subsidies will only be paid if there is proof of monthly bond payments. The application of these regulation s would be prejudicial Ms DR Busch.
6 .MEDIATION-ARBITRATION AGREEMENT
6.1 According to my terms of reference the fact that the department chose arbitration as a procedure to follow is a result of the absence of a remedy available to the department under existing regulations in this particular case. Ms DR Busch cannot receive backdated subsidies which would be the usual remedy for the administrative error made by the department. She was unable to purchase a home until she was provided with a state guarantee.
6.2 I consider that the only appropriate remedy is a financial one. Ms DR Busch should be paid R877 per month (less her usual taxation rate) for a period of thirteen months covering the period 1 March 1997 (the latest estimated date by which she would have taken occupation of a house had she been provided with the state guarantee within three weeks of making the request) until 31 March 1998. She took occupation of her first home on 1 April 1998.
7 . REMEDY
7.1 According to my terms of reference, I may make an Award which I consider fair in the circumstances.
7.2 I determine that the amount and manner of repayment should be such that Ms DR Busch is not further prejudiced. The after tax amount to received by Ms DR Busch from the department is to be calculated on the basis of 13xR877 less her usual taxation rate in the 1997/98 taxation period. This is fair an reasonable compensation for the discrimination and prejudice experienced by Ms DR Busch through the frequent and persistent administrative errors committed by Mr R Job (Area Manager, Mitchell Plain) against Ms DR Busch in her attempt to obtain a state guarantee.
7.3 I determine that payment to Ms DR Busch by the department should occur within two weeks of to-day.
Dated at Cape Town On this 14 day of May 1998.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 13 WC
APPLICANT MS D R BUSH
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR MARY SIMONS
DATE OF ARBITRATION 6 MAY 1998
VENUE CAPE TOWN
APPLICANT MR RIX
RESPONDENT MR K PETERSEN
1 According to my terms of reference, I may make an Award which I consider fair in the circumstances.
2 I determine that the amount and manner of repayment should be such that Ms DR Busch is not further prejudiced. The after tax amount to received by Ms DR Busch from the department is to be calculated on the basis of 13xR877 less her usual taxation rate in the 1997/98 taxation period. This is fair an reasonable compensation for the discrimination and prejudice experienced by Ms DR Busch through the frequent and persistent administrative errors committed by Mr R Job (Area Manager, Mitchell Plain) against Ms DR Busch in her attempt to obtain a state guarantee.
3 I determine that payment to Ms DR Busch by the department should occur within two weeks of to-day.
DATE OF AWARD 14 MAY 1998