PSES CMR 001018 WC
PSES CMR 001018 WC
Award Date:
15 May 1998
Case Number: PSES CMR 001018 WC
Province: Eastern Cape
Applicant: MRS S JONAS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 15 May 1998
Arbitrator: BEN SCHOEMAN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CMR 001018 WC
In the arbitration between:
MRS S JONAS APPLICANT
and
WESTERN CAPE EDUCATIONAL DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . HEARING AND REPRESENTATION
1.1 The arbitration hearing was held in Cape Town on 14 May 1998, in accordance with a comprehensive med-arb terms of reference agreement between the Western Cape Education Department and Mrs Jonas.
1.2 The grievant presented her own case, and the WCED was represented by Mr R F Jansen.
2 . ISSUES
2.1 The issues in dispute, lodged by the grievant on 17 September 1997, concerned her non-appointment to a permanent post at Range Primary School.
2.2 The grounds for the alleged unfair labour practice, as set out in the letter of dispute written to the ELRC by the grievant’s attorney, were in essence that :
2.2.1 the conduct of the Principal created a legitimate expectation with the grievant that she would be appointed to the permanent post;
2.2.2 the conduct of the Principal prejudiced the grievant’s efforts to obtain a permanent post timeously;
2.2.3 the conduct of the Principal and officials of the WCED created insecure working conditions for the grievant;
2.2.4 the grievant suffered damages as a result of the above.
2.3 The parties had informal discussion, facilitated by the arbitrator, in an attempt to mediate the dispute in accordance with the terms of reference. When it became apparent that a settlement of the dispute would not be forthcoming, a non-settlement certificate was duly completed and the matter resumed as an expedited arbitration in accordance with the terms of reference.
3 . FACTS OF THE DISPUTE
3.1 The following facts emerged from the body of evidence as being either common cause or effectively proven during the proceedings:
3.1.1 The grievant, a teacher at The Range Primary School in Elsies River since January 1996, was appointed in a temporary capacity to a permanent post previously filled by Ms Ismael, who had been boarded for health reasons. Mrs Jonas’ name was placed on the Compulsory Redeployment List during October 1996. During November 1996 she applied for twenty permanent posts at different schools.
3.1.2 During January 1997 the Principal of The Range Primary School, Mr G A Lesch, made a recommendation to the WCED that Mrs Jonas be appointed to a permanent position at his school. This recommendation was supported by a recommendation by the Circuit Manager, Mr H Botha. The recommendation was not accepted by the WCED, as is proven by a letter from Mr J H Hurter (Head : Education) to Mr Botha (Circuit Manger) dated 7 August 1997.
3.1.3 Mrs Jonas was never invited to interviews for any of the positions she had applied for during November 1996.
3.1.4 At present Mrs Jonas’ name is on the Compulsory Redeployment List. She enjoys protection in her employment in her present post at The Range Primary School in terms of Resolution No 3 of 1996 of the ELRC, and was informed of this in a letter by the Head: Education of WCED, dated 12 March 1998.
4 . FURTHER EVIDENCE AND ARGUMENT
4.1 Mrs Jonas asserted that she had been ‘offered’ a permanent post by the Principal. According to her the post she was offered was the one she was occupying at the time, that of a Senior Primary Teacher. This was the post vacated by Ms Ismael when she was indefinitely board. She further argued that, as a result of this offer, her applications for other permanent positions had been prejudiced, in that her name was removed from the Redeployment List. According to her she was asked to sign an official letter on 10 February 1997, whereby her applications for other posts would be withdrawn. She lastly stated that her position remained insecure, since she was now still on the Redeployment List, and had been told that the services of all persons on the Compulsory Redeployment List would be terminated in the near future.
4.2 Mrs Jonas offered no supporting evidence beyond her own testimony and argument. She called no witnesses, nor did she submit any documentary proof. This she ascribed to her ignorance of arbitration procedures.
4.3 The WCED presented the hearing with a compilation of documents including the following :
4.3.1 A letter of recommendation from the Principal to Mr Botha (Circuit Manager). In this letter he requested that Mrs Jonas’ temporary appointment be extended to 31 December 1996;
4.3.2 A letter of recommendation from the Circuit Manager (dated 23 July 1997) to the Head of Education (WCED). In this letter Mr Botha recommends that the status of Mrs Jonas be changed to that of permanent teacher;
4.3.3 A letter from the Head of Education (J H Hurter), dated 7 August 1997, in response to the above letter from the Circuit Manager. In this letter the Head of Education explains that a certain Mrs Etalla had voluntarily submitted her name for the Redeployment List, and had subsequently successfully applied for a post elsewhere. He states that the Principal had recommended, and that this recommendation had been supported by the Circuit Manager, that Mrs Jonas be appointed to the post vacated by Mrs Etalla. This recommendation was however turned down on the basis that Mrs Etalla’s was a Junior Primary post, and Mrs Jonas did not qualify to fill it (being a Senior Primary teacher). Mr Hurter finally instructs that Ms Jonas’ name be reinstated on the Redeployment List, from which it had ‘apparently’ been removed.
4.4 The WCED let the evidence of Mr G A Lesch, Principal of The Range Primary School. Mr Lesch testified that he had never promised any position to Mrs Jonas, and that he had recommended her for the post vacated by Mrs Etalla. He confirmed that he had asked Mrs Jonas to sign an official document on 10 February 1997, but that this document merely confirmed her name and details for the purposes of the Redeployment List. He lastly stated that he would not hesitate to recommend Mrs Jonas for any future appointment.
4.5 In a brief statement to the hearing Mr Botha (Circuit Manager) said that he would continue to recommend Mrs Jonas for permanent appointment. He asserted that he had never sent a letter whereby Mrs Jonas was asked to sign that her application for other posts be withdrawn. According to him applications for posts can only be withdrawn by the applicant.
4.6 The WCED in essence argued that, no matter which position Mrs Jonas had been recommended for, she should be aware that the Principal and the Circuit Manager can only recommend to the WCED. The WCED may or may not accept such a recommendation. This fact is made abundantly clear in circulars to schools and teachers, and is a general accepted principal. The WCED further asserted that Mrs Jonas’ applications for other posts had never been withdrawn, neither by her nor by the WCED. She has just not been successful in finding a permanent post. This may be ascribed to the fact that she has limited years’ experience in teaching, while there are many more experienced and qualified teachers on the Redeployment List applying for posts.
4.7 The WCED lastly argued that Mrs Jonas’ position is no more insecure now than before, but that the contrary is true. She is in fact now more protected, as a result of Resolution No 3 of 1996.
5 . DISCUSSION
5.1 Mrs Jonas’ successful assertion of an unfair labour practice depended upon her proving that she had a legitimate expectation to be appointed to a permanent post, that the actions of the Principal and officials of the WCED prejudiced her efforts to obtain a permanent post timeously, and that the conduct of the Principal and officials of the WCED created insecure working conditions for her.
5.2 Weighing up all the evidence and argument brought in this meeting, I have no hesitation in finding that she has failed in this endeavour. The fact that Mrs Jonas brought no further evidence supporting her assertions, did not assist in this regard. At a prior discussion between the arbitrator and Mrs Jonas on 6 May 1998, the arbitrator granted Mrs Jonas’ request for an opportunity to consult her attorney before signing the Agreement on Terms of Reference for this med-arb process. I believe her attorney would, on considering the Terms of Reference, have informed her of her rights with regard to evidence and witnesses.
5.3 I accept that Mrs Jonas knew that the Principal could not promise or offer her a post. Various circulars and ELRC Resolutions, made available and accessible to teachers at schools by the WCED, explain WCED appointment procedures. She could not have had a legitimate expectation to be given the permanent appointment based on the words of the Principal. I found no proof that Mrs Jonas’ applications for other posts had been withdrawn or prejudiced. Furthermore, her position is now no more insecure than it was when her name was first placed on the Compulsory Redeployment List.
5.4 Mrs Jonas’ disappointment and frustration at not having secured a permanent post yet, is understandable. This situation can however not be ascribed to the actions of the Principal or officials of the WCED in relation to this matter.
6 . AWARD
I find that the grievant, Mrs S Jonas, has failed to prove an unfair labour practice on the part of the WCED. I accordingly recommend that this case be dismissed and taken no further.
_______________________
ARBITRATOR
BEN SCHOEMAN
Date : 15 May 1998
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CMR 001018 WC
APPLICANT MRS S JONAS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPLICATION (UNFAIR)
ARBITRATOR BEN SCHOEMAN
DATE OF ARBITRATION 14 MAY 1998
VENUE CAPE TOWN
REPRESENTATION:
APPLICANT MRS S JONAS
RESPONDENT MR R F JANSEN
AWARD:
I find that the grievant, Mrs S Jonas, has failed to prove an unfair labour practice on the part of the WCED. I accordingly recommend that this case be dismissed and taken no further.
DATE OF AWARD 15 MAY 1998
Province: Eastern Cape
Applicant: MRS S JONAS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 15 May 1998
Arbitrator: BEN SCHOEMAN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CMR 001018 WC
In the arbitration between:
MRS S JONAS APPLICANT
and
WESTERN CAPE EDUCATIONAL DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . HEARING AND REPRESENTATION
1.1 The arbitration hearing was held in Cape Town on 14 May 1998, in accordance with a comprehensive med-arb terms of reference agreement between the Western Cape Education Department and Mrs Jonas.
1.2 The grievant presented her own case, and the WCED was represented by Mr R F Jansen.
2 . ISSUES
2.1 The issues in dispute, lodged by the grievant on 17 September 1997, concerned her non-appointment to a permanent post at Range Primary School.
2.2 The grounds for the alleged unfair labour practice, as set out in the letter of dispute written to the ELRC by the grievant’s attorney, were in essence that :
2.2.1 the conduct of the Principal created a legitimate expectation with the grievant that she would be appointed to the permanent post;
2.2.2 the conduct of the Principal prejudiced the grievant’s efforts to obtain a permanent post timeously;
2.2.3 the conduct of the Principal and officials of the WCED created insecure working conditions for the grievant;
2.2.4 the grievant suffered damages as a result of the above.
2.3 The parties had informal discussion, facilitated by the arbitrator, in an attempt to mediate the dispute in accordance with the terms of reference. When it became apparent that a settlement of the dispute would not be forthcoming, a non-settlement certificate was duly completed and the matter resumed as an expedited arbitration in accordance with the terms of reference.
3 . FACTS OF THE DISPUTE
3.1 The following facts emerged from the body of evidence as being either common cause or effectively proven during the proceedings:
3.1.1 The grievant, a teacher at The Range Primary School in Elsies River since January 1996, was appointed in a temporary capacity to a permanent post previously filled by Ms Ismael, who had been boarded for health reasons. Mrs Jonas’ name was placed on the Compulsory Redeployment List during October 1996. During November 1996 she applied for twenty permanent posts at different schools.
3.1.2 During January 1997 the Principal of The Range Primary School, Mr G A Lesch, made a recommendation to the WCED that Mrs Jonas be appointed to a permanent position at his school. This recommendation was supported by a recommendation by the Circuit Manager, Mr H Botha. The recommendation was not accepted by the WCED, as is proven by a letter from Mr J H Hurter (Head : Education) to Mr Botha (Circuit Manger) dated 7 August 1997.
3.1.3 Mrs Jonas was never invited to interviews for any of the positions she had applied for during November 1996.
3.1.4 At present Mrs Jonas’ name is on the Compulsory Redeployment List. She enjoys protection in her employment in her present post at The Range Primary School in terms of Resolution No 3 of 1996 of the ELRC, and was informed of this in a letter by the Head: Education of WCED, dated 12 March 1998.
4 . FURTHER EVIDENCE AND ARGUMENT
4.1 Mrs Jonas asserted that she had been ‘offered’ a permanent post by the Principal. According to her the post she was offered was the one she was occupying at the time, that of a Senior Primary Teacher. This was the post vacated by Ms Ismael when she was indefinitely board. She further argued that, as a result of this offer, her applications for other permanent positions had been prejudiced, in that her name was removed from the Redeployment List. According to her she was asked to sign an official letter on 10 February 1997, whereby her applications for other posts would be withdrawn. She lastly stated that her position remained insecure, since she was now still on the Redeployment List, and had been told that the services of all persons on the Compulsory Redeployment List would be terminated in the near future.
4.2 Mrs Jonas offered no supporting evidence beyond her own testimony and argument. She called no witnesses, nor did she submit any documentary proof. This she ascribed to her ignorance of arbitration procedures.
4.3 The WCED presented the hearing with a compilation of documents including the following :
4.3.1 A letter of recommendation from the Principal to Mr Botha (Circuit Manager). In this letter he requested that Mrs Jonas’ temporary appointment be extended to 31 December 1996;
4.3.2 A letter of recommendation from the Circuit Manager (dated 23 July 1997) to the Head of Education (WCED). In this letter Mr Botha recommends that the status of Mrs Jonas be changed to that of permanent teacher;
4.3.3 A letter from the Head of Education (J H Hurter), dated 7 August 1997, in response to the above letter from the Circuit Manager. In this letter the Head of Education explains that a certain Mrs Etalla had voluntarily submitted her name for the Redeployment List, and had subsequently successfully applied for a post elsewhere. He states that the Principal had recommended, and that this recommendation had been supported by the Circuit Manager, that Mrs Jonas be appointed to the post vacated by Mrs Etalla. This recommendation was however turned down on the basis that Mrs Etalla’s was a Junior Primary post, and Mrs Jonas did not qualify to fill it (being a Senior Primary teacher). Mr Hurter finally instructs that Ms Jonas’ name be reinstated on the Redeployment List, from which it had ‘apparently’ been removed.
4.4 The WCED let the evidence of Mr G A Lesch, Principal of The Range Primary School. Mr Lesch testified that he had never promised any position to Mrs Jonas, and that he had recommended her for the post vacated by Mrs Etalla. He confirmed that he had asked Mrs Jonas to sign an official document on 10 February 1997, but that this document merely confirmed her name and details for the purposes of the Redeployment List. He lastly stated that he would not hesitate to recommend Mrs Jonas for any future appointment.
4.5 In a brief statement to the hearing Mr Botha (Circuit Manager) said that he would continue to recommend Mrs Jonas for permanent appointment. He asserted that he had never sent a letter whereby Mrs Jonas was asked to sign that her application for other posts be withdrawn. According to him applications for posts can only be withdrawn by the applicant.
4.6 The WCED in essence argued that, no matter which position Mrs Jonas had been recommended for, she should be aware that the Principal and the Circuit Manager can only recommend to the WCED. The WCED may or may not accept such a recommendation. This fact is made abundantly clear in circulars to schools and teachers, and is a general accepted principal. The WCED further asserted that Mrs Jonas’ applications for other posts had never been withdrawn, neither by her nor by the WCED. She has just not been successful in finding a permanent post. This may be ascribed to the fact that she has limited years’ experience in teaching, while there are many more experienced and qualified teachers on the Redeployment List applying for posts.
4.7 The WCED lastly argued that Mrs Jonas’ position is no more insecure now than before, but that the contrary is true. She is in fact now more protected, as a result of Resolution No 3 of 1996.
5 . DISCUSSION
5.1 Mrs Jonas’ successful assertion of an unfair labour practice depended upon her proving that she had a legitimate expectation to be appointed to a permanent post, that the actions of the Principal and officials of the WCED prejudiced her efforts to obtain a permanent post timeously, and that the conduct of the Principal and officials of the WCED created insecure working conditions for her.
5.2 Weighing up all the evidence and argument brought in this meeting, I have no hesitation in finding that she has failed in this endeavour. The fact that Mrs Jonas brought no further evidence supporting her assertions, did not assist in this regard. At a prior discussion between the arbitrator and Mrs Jonas on 6 May 1998, the arbitrator granted Mrs Jonas’ request for an opportunity to consult her attorney before signing the Agreement on Terms of Reference for this med-arb process. I believe her attorney would, on considering the Terms of Reference, have informed her of her rights with regard to evidence and witnesses.
5.3 I accept that Mrs Jonas knew that the Principal could not promise or offer her a post. Various circulars and ELRC Resolutions, made available and accessible to teachers at schools by the WCED, explain WCED appointment procedures. She could not have had a legitimate expectation to be given the permanent appointment based on the words of the Principal. I found no proof that Mrs Jonas’ applications for other posts had been withdrawn or prejudiced. Furthermore, her position is now no more insecure than it was when her name was first placed on the Compulsory Redeployment List.
5.4 Mrs Jonas’ disappointment and frustration at not having secured a permanent post yet, is understandable. This situation can however not be ascribed to the actions of the Principal or officials of the WCED in relation to this matter.
6 . AWARD
I find that the grievant, Mrs S Jonas, has failed to prove an unfair labour practice on the part of the WCED. I accordingly recommend that this case be dismissed and taken no further.
_______________________
ARBITRATOR
BEN SCHOEMAN
Date : 15 May 1998
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CMR 001018 WC
APPLICANT MRS S JONAS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPLICATION (UNFAIR)
ARBITRATOR BEN SCHOEMAN
DATE OF ARBITRATION 14 MAY 1998
VENUE CAPE TOWN
REPRESENTATION:
APPLICANT MRS S JONAS
RESPONDENT MR R F JANSEN
AWARD:
I find that the grievant, Mrs S Jonas, has failed to prove an unfair labour practice on the part of the WCED. I accordingly recommend that this case be dismissed and taken no further.
DATE OF AWARD 15 MAY 1998