Case Number: PSES 1 WC
Province: Western Cape
Applicant: D ABRAHAMS
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 19 May 1998
Arbitrator: L J BOZALEK
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 1 WC
In the arbitration between:
D ABRAHAMS APPLICANT
WESTERN CAPE DEPARTMENT OF EDUCATION RESPONDENT
1 . THE HEARING
1.1 The arbitration hearing was held in Cape Town on 14 and 15 May 1998, in accordance with he 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.
2 . The grievant was represented by Mr C Jacobs of the Union, and the Department by Mr K Pietersen.
3 . The issue in dispute, lodged by the grievant on 6 May 1996, concerned disciplinary conduct taken against the grievant and nine other teachers in 1981. The grounds for the alleged unfair labour practice were that the punishment meted out to the teachers differed. The grievant sought an opportunity to defend himself and clear his name.
4 . The parties discussed the dispute informally in an attempt to mediate the matter in accordance with 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 was resumed as an expedited arbitration in terms of the collective agreement.
5 . FACTS OF THE DISPUTE
5.1 The grievant applied for condonation of the late submission of his dispute to the Education Labour Relations Council on the grounds that in 1980 there had been no avenues to cater for such grievances. Condonation was granted on 3 July 1997.
5.2 In 1980 the grievant had been a teacher at Alexander Sinton Senior Secondary School during a period when there was widespread and tumultuous protest in the Western Cape by both students and educators against the injustices of the racially based education system. According to the grievant, in July 1980 the teaching staff at Alexander Sinton had unanimously decided to take part in the protest. Contemporaneous documentation showed that ten teachers, including the grievant, attended at work between 28 and 31 July but refused to teach stating that they would only resume their duties once the “Committee of 84" -a body of students- decreed that this should be so. Mr Pietersen, the Departmental representative, produced extracts from the grievant’s personnel file which indicated that during October 1980 the Secretary of Coloured Affairs had written to the grievant advising that his annual salary increase for the following year would be withheld because he had refused to teach classes during school hours in contravention of Regulation B26.5 made pursuant to the Coloured Education Act No. 47 of 1963.
5.3 Further contemporaneous documentation revealed that the Department had acted against ten teachers in all at the school regarding the same incident. Six of them had had their salary increase for the financial year withheld. Two of them were earning at their maximum notch and it was decided to charge them disciplinary with a view to imposing a fine. Two temporary teachers were advised that unless they earned their Teacher Diplomas within 1980 they would secure no further appointments as teachers. Two of the six teachers who had their salary increase withheld and who were serving probationary periods had these periods extended. Over and above these sanctions the teachers were not paid for those days on which they had been present at school but had not taught.
5.4 On behalf of the grievant Mr Jacobs contended that he should be moved up one notch on his salary scale and paid the arrear salary which he had lost through the years. He argued that the grievant had been inequitably treated because of the objectives and aims of the protest action had been well-founded and had been realised in time. Secondly, he argued, the grievant had suffered discriminatory treatment in that different punishments had been meted out to various of those involved and, more particularly, the two teachers whom the Department had decided to charge had obtained legal representation which resulted in the charges being unsuccessful and they had then escaped the incident unscathed.
5.5 Mr Pietersen’s attitude was straight forward. The grievant had been lawfully punished for an infraction of the regulations relating to conduct which he did not deny. Thereafter he had not been discriminated against as evidenced by the fact that he had risen through the ranks to the extent that for the last 6 or 7 years he had been a principal of a school.
5.6 There was initially some confusion concerning the exact nature of the action taken against the grievant on 1980. The grievant stated that he had not been charged or afforded a hearing. It was common cause however that a school inspector had been called in and had asked the teachers whether they were prepared to resume their teaching duties immediately and to report to their classrooms. All teachers declined to give the undertaking sought. Mr Pietersen referred to Regulation B.18.13 which provided that an annual salary increment was payable to teachers if the Director-General considered “that such teacher’s conduct as to industry, discipline, punctuality and sobriety had been satisfactory and that he discharged his duties as a teacher satisfactorily.” Mr Pietersen contended that the aforesaid regulation and regulation B26.5 which created the obligation for every teacher to devote himself during school hours to discharge of his duties, formed the basis upon which the erstwhile Department had acted lawfully against the grievant in 1980.
5.7 By all appearances Mr Pietersen was correct in this submission as well as in his argument that the grievant appeared not to have been discriminated against in his career by reason of the action taken against him in 1980. Certainly the grievant did not suggest otherwise.
5.8 Pressed for clarification as to the basis of his claim, the grievant stated that had it not been for the fact that some of the teachers involved had escaped more lightly than he or without sanction, he would have let bygones be bygones. He stated that he had not challenged the action taken against him in 1980 because of financial considerations and he explained the 17 year delay in his raising the dispute by saying that prior to the mid-1990s there had been no channels for the submission of grievances. There were in fact two delays in this matter, the first from 1980 to 1996 when the Department acquired its present unified and integrated structure together with dispute resolution mechanisms, and the delay from then until 6 May 1997 when the grievant lodged his dispute.
5.9 Despite the ELRC’s condonation of the late submission of the dispute, which condonation carried no reasons, I would dismiss the claim on the grounds of the inordinate delay between 1980 and 1996. It is an established principle of law that someone who wishes to challenge what she/he regards as unlawful or inequitable action must do so within a reasonable period of time. Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978(1) SA 13 (A). Moreover in the absence of any indications to the contrary, I can hardly imagine that the unfair labour practice jurisdiction created by the Education Labour Relations Act of 1994 was intended as a remedy for wrongs in the distant past in the educational system. Although one can appreciate that the grievant lacked the financial resources to challenge the action taken against him in 1980, what he could have done is demonstrated by the fact that two of his colleagues secured legal representation and warded off disciplinary charges.
5.10 Even if the elapse of time were not a fatal bar to the grievant’s claim, I consider the merits thereof do not justify any relief. The mere fact that some of the grievant’s colleagues received a different or even a lighter sanction to that imposed upon him does not justify his claim that he must be moved up a salary notch and/or paid his salary arrears. A study of the documentation reveals that the Department, as it then was, imposed different sanctions upon the different groups within the 10 teachers because their circumstances were different and I can see no sign at all that there were any conscious or unconscious discrimination against the grievant or in favour of the other teachers. I fail to understand, furthermore, why, because two of the teachers warded off potentially more serious disciplinary action against themselves by employing legal representation, the sanction imposed upon the grievant which he failed to challenge at the time should be set aside 18 years later. The incongruities of the claim do not end here because since the grievant being sanctioned the responsible Department has been phased out to be followed by a House of Representatives and then, post 1990, by the Western Cape Department.
5.11 It is also worth mentioning that a careful analysis by Mr Pietersen of the financial implications of the sanctions imposed upon the grievant revealed that in monetary terms, after deduction of tax and other benefits, it had amounted to no more than R1 900,00 (one thousand nine hundred rand( (without interest). Furthermore, the effect of withholding the increase was, in one sense at least, no longer felt by the grievant after 1984 when hew had been placed in the starting notch of the Head of Department post.
6 . CONCLUSION AND AWARD
For the reasons set out above I find that the grievant has failed to prove an unfair labour practice and his claim is dismissed.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 1 WC
APPLICANT D ABRAHAMS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR L J BOZALEK
DATE OF ARBITRATION 14TH AND 15TH MAY 1998,
APPLICANT MR C JACOBS
RESPONDENT MR K PIETERSEN
For the reasons set out above I find that the grievant has failed to
prove an unfair labour practice and his claim is dismissed.
DATE OF AWARD 19TH OF MAY 1998.