Case Number: PSES CAR Desai WC
Province: Western Cape
Applicant: DR D R DESAI
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 27 May 1998
Arbitrator: MARY SIMONS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR Desai WC
In the arbitration between:
DR D R DESAI APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ADVISORY ARBITRATION AWARD
1 . THE HEARING
1.1 The mediation-arbitration was held in Cape Town on 6 and 15 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 unrepresented, and the Department was represented by Mr E Southgate.
1.3 The issue in dispute, lodged by the grievant, is that the Western Cape Education Department’s failure to grant him Voluntary Severance Package for which he applied (document A3) on 14 February 1997 constitutes an unfair labour practice and is discriminatory as other applicants including his colleagues received the VSP automatically when they applied. Secondly, he argues an unfair labour practice on the grounds that the Department refused to furnish him with information with regard to their declaration that he is not in excess. The grievant regards him being declared not in excess as unfair and ungrounded.
1.4 The grievant’s claim 3, namely, that the conduct of the rector etc created such levels of stress that he was put on sick leave from March 1997 until his resignation and claim 4, namely, that the actions of the department’s officials constitute “constructive dismissal” are not matters for this mediation-arbitration. These claims were separated from the claims in the above paragraph with the understanding of both parties that Dr D R Desai may formally lodge these disputes in the prescribed manner (See Fax 2).
1.5 The parties discussed the dispute informally in an attempt to mediate the matter in accordance with the terms of reference. When it became apparent that a settlement of the dispute through mediation would not be forthcoming, a non-settlement certificate was duly completed and the matter resumed as an expedited arbitration in terms of the collective agreement.
2 . NOTE
2.1 A fair portion of the mediation process involved the background to the grievant’s current claim. In summary, the grievant applied for the VSP in May 1996, he established the package he would receive from the Department should he take and be the granted VSP (File 1: a, 1), he was granted VSP and requested that his VSP application be cancelled and he was granted the cancellation (File 1:2). The grievant on the basis of his having been granted the VSP in 1996 contends that (a) he had demonstrated his intention to take VSP and (b) that having been granted it he had the expectation that he would receive the VSP when he applied again in February 1997.
2.2 Accompanying this award are documents submitted by Dr D R Desai on 6 May 1998 marked as
2.2.1 File 1 : Merits A; B,
2.2.2 File 2, Arguments and Supporting Docs.
2.3 And two documents submitted by the Western Cape Education Department on 15 May 1998 marked as
2.3.1 WCED 1. Circular 0092/96 Severance, Redeployment and Related Matters: Amendments to and Extensions of Circulars 68/1996 and 72/1996.
2.3.2 WCED 2. Circular 0120/1996 Rationalization and Related Matters.
2.4 And facsimile from the mediator/arbitrator to the Education Labour Relations Council, Mr R Falken on 15 May 1998 and a facsimile from the ELRC to the mediator.
2.4.1 Fax 1 Simons to ELRC.
2.4.2 Fax 2 ELRC to Simons.
3 . FACTS IN THE DISPUTE
3.1 Dr D R Desai was a lecturer in Mathematics, Hewat College of Education (subsequently this institution amalgamated with Cape Town College of Education to form Hewat/Cape Town College of Education).
3.2 In 1996 Dr Desai made enquiries about the sum of money he would receive should he volunteer for a severance package.
3.3 In July 1996 Dr Desai made applications to the Department and was granted the VSP in August by the Department. On 29 August 1997 Dr Desai withdrew his application for VSP and in August 1997 the Department cancelled his VSP.
3.4 Dr Desai made the decision to cancel his granted VSP on the grounds that it would be more to his financial advantage to continue working for a further period of time.
3.5 Dr Desai hand delivered his VSP application to the Department on 14 February 1997.
3.6 Correspondence between Dr Desai and the Department subsequent to his application resulted in a letter of complaints from Dr Desai, the holding of dispute meetings on 31 July 1997 and 28 August 1997 (File 1:7;7, 1;8 & 9). The dispute was not resolved (File 1:11) and Dr Desai submitted his letter of resignation in which he stated that the attitude of the Department to the matter of his VSP application was a contributing factor to his decision to resign (File 1:13 p 2 point 3). Dr Desai’s resignation itself constitutes part of his Claims 3 and 4 as stated on page 1 of the advisory award and is not a matter for this arbitration.
4 . DISCUSSION
4.1 Dr Desai was of the opinion throughout the second half of 1996 and in the first months of 1997 that the VSP was a de jure right as Government Gazette 31 May 1996 Resolution 3 of 1996 1.6(a)(I) states “Any educator may volunteer for severance package, as set out in Annexure A, in order to allow educators who prefer to leave the service, to do so and to create room for the absorption of educators who are in excess”. (File 2: C1). He contends that the understood the VSP to be an automatic right and that this was communicated by the principal of the college to the Mathematics Department of the college in January 1997 (File 1:7 p2)
4.2 He argues that he was not made aware of any of the amendments to Resolution 3 of 1996 introduced by Circular 0092/96 26 September 1996 and Circular 0120/1996 of 26 November 1996 either through the efforts of the Department, the head of the college nor through the media.
4.3 Furthermore given the granted of the VSP to his colleagues, acquaintances and friends in the education field in the same period and throughout 1997 he continues to hold the view that despite these amendments VSP continues to be granted and therefore this remains his de facto right.
5 . FURTHER DISCUSSION
5.1 It is accepted that Dr Desai had intended applying for VSP and that his request to have his VSP cancelled in August 1996 did not mean that he had changed his mind but was a decision made on the basis that a delay in taking VSP would be to his financial advantage. It if further accepted that under conditions of Phase 1 of the VSP Dr Desai would have obtain the VSP (as he in fact did). Dr Desai claims that he has been disadvantaged by subsequent documents (Circulars 1 and 2 and the ruling of January 18 1997 which determines that VSP can only be granted if the institution agrees to relinquish a post) which changed the conditions under which VSP would be granted. Although his witnesses, Messrs Meyer and Petersen (former rectors of Educational Colleges who have been granted the VSP) all testify as to the availability of the VSP in 1996 this is not the matter which is disputed by the Department. What is in dispute is whether the rights to VSP of 1996 continue in 1997.
5.2 Mr R Taylor, principal of Hewat/Cape Town College of Education in his testimony stated that he had received the Circulars, attended meetings with the WCED in which he was informed of the new conditions of the granting of the VSP. Mr Taylor endorsed Dr Desai’s application on 14 February 1997 for the VSP. However, institutional requirements made it necessary for him to declare Dr Desai “not in excess” and not eligible for the VSP because of the Department’s new ruling that as of 18 February all VSP’s granted would lead to the loss of establishment posts. Dr Desai does not charge Mr Taylor with mal fides and there is no evidence to suggest that Mr Taylor discriminated against Dr Desai by declaring him “not in excess”.
5.3 Resolution 3 of 1996 31 May 1996 Government Gazette No 17726 gives clear indications in 1.6(a) (ii) that VPS’s will be dealt with in phases, that VSPs “may be withdrawn and reactivated annually” and that (T)he application of this provision shall commence on 1 May 1996 for the year 1996 and the Minister is requested to promulgate regulations in this regard as soon as possible.
5.4 Dr Desai in deciding not to make his application for VSP in 1996 took a risk, albeit a calculated risk. Even if as he claims, despite his close association with a rector of an educational institution, he as not aware of Circulars 1 and 2 of the provisions of Resolution 3 are explicit that the terms under which VSP are being offered are subject to revision and in fact will occur in different phases. He argues that his decision was not risky given the assurances of various rectors, newspaper articles, and department officials that VSP would continue to be automatically granted in 1997.
5.5 Dr Desai has my sympathy for the stress he experienced on being notified that his application for the VSP was not granted. As he states conditions of employment had deteriorated for the worse given the number of teaches in the Mathematics department of the college that had taken the VSP. Nevertheless irrespective of my sympathies I have to make an award on the basis of whether or not he has been subjected to an unfair labour practice.
5.6 I am of the view that the Department acted within the scope of the agreement with regard to the VSPs, and with amply advance notice in September and in November of 1996 notified institution that there would be changes and states categorically “For this reason the Department will in this phase be unlikely to grant any VSPs with a severance date alter than 31 December 1996. In order to be considered for severance on that date educators are urged (my highlighting) to submit their application timeously.
5.7 I note that Dr Desai stood more to gain financially by taking VSP on 1 April 19976 rather than 31 December 1996 and once more I express my sympathy for his financial loss. I, however, find no grounds for finding for his claim that he was subject to an unfair labour practice.
6 . REMEDY
According to my terms of reference, I make the following Advisory Arbitration Award which I consider fair in the circumstances.
7.1 For the reasons stated above, I find that the grievant, Dr D R Desai has failed to prove an unfair labour practice on the part of the Department. The grievant’s claim is accordingly not acknowledged. I do determine that the Department communicate in writing to Dr D R Desai (1) the general criteria by which an individual is deemed to be “not in excess” for the purposes of not granting them VSP and (2) to inform Dr D R Desai specifically why he was declared “not in excess”. The Department is required to furnish Dr Desai with this information withing two weeks of this advisory award.
7.2 There are two further issues which require comment.
7.3 The first relates to two statements made by two officials of the WCED, Messrs Bonze and Pillay in a meeting with Dr D R Desai and his representative Mr Meyer on 31 July 1997 as contained in Minutes of the Meeting (File 1:9 nos 17 and 22). The first statement concerns the Department’s recognition of the “legitimate expectancy” that people had of being granted VSP. The second statement is the response of a WCED official to a request by the chair, Mr C Esau (WCED official) that if the WCED was not going to grant VSP in this matter they should not waste the time of the grievants (Dr Desai and one other). Mr Bonze stated that whilst not committing himself “there was the possibility that the VSPs may be granted” do not diminish the legal validity of Circulars 1 and Circulars 2 of 1996 which expressly state that (a) a new phase in regard to the VPS will come into being with the completion of phase 1 of 1996, “(F)or this reason the Department will in this phase (phase 2) be unlikely to grant any VSPs with a severance date later than 31 December 1996. In order to be considered for severance on that date educators are urged to submit their applications timeously” (Circular 1:p4 no 6) and (b) that the VSPs received for the second phase (1997) “will be retained and considered in the light of procedures/agreements which come into force during that phase. The WCED can, however, give no guarantee concerning the availability of the VSP in the future” (Circular 2:p3 no 4). Dr D R Desai has not submitted subsequent WCED circulars to the cited above which supersede the above policy statements. The two departmental officials failed to re-iterate the conditions of phase 2 in regard to the VSPs and in the case of Dr D R Desai failed to draw his attention to the January 18 1997 requirement that should the head of an educational institution endorse the VSP for a member of staff then the institution would in fact be losing an establishment post. Similarly the affidavit of Mr C C Katts regarding a conversation he held with Mr Douglas Kennedy in July 1996 in which he asserts that Mr Kennedy stated that “the VSP would still automatically be granted for college staff in 1997" (File 2:113 Affidavit 1) cannot override the subsequent Circulars 1 and 2. The criteria for the VSP and its various phases of implementation were developed through processes of consultation.
7.4 The second issue is the fact that the WCED did not disclose the information which Dr Desai sought, namely, that there being many people on the staff of the college of which he was a staff member who were in excess and who had the necessary skills to replace him why was he declared “not in excess”. (File 1:9 note 18 and 19) Dr Desai had and has a right to the information as to why he was declared “not in excess” and should have received it from the Department on request.
Date : 27 May 1998
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CAR Desai WC
APPLICANT DR D R DESAI
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR MARY SIMONS
DATE OF ARBITRATION 6, 15 MAY 1998
VENUE CAPE TOWN
RESPONDENT MR E SOUTHGATE
Dr D R Desai has failed to prove an unfair labour practice on the part of the Department. I do determine that the Department communicate in writing to Dr D R Desai (1) the general criteria by which an individual is deemed to be “not in excess” for the purposes of not granting them VSP and (2) to inform Dr D R Desai specifically why he was declared “not in excess”. The Department is required to furnish Dr Desai with this information within two weeks of this advisory award.
DATE OF AWARD
EDUCATION LABOUR RELATIONS COUNCIL