PSES CAR Hesqua WC
PSES CAR Hesqua WC
Award Date:
29 May 1998
Case Number: PSES CAR Hesqua WC
Province: Western Cape
Applicant: G R HESQUA
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 29 May 1998
Arbitrator: S H CHRISTIE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR Hesqua WC
In the arbitration between:
G R HESQUA APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . THE HEARING
1.1 The arbitration hearing was held in Cape Town on 7 May 1998 in accordance with 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 at the hearing by SADTU through Messrs Gary McKenzie and Jonathan Vosloo. The WCED was represented by inter alia Mr Ishgaak Matthews.
1.3 The issue in dispute related to the grievant’s contention that he had been prejudiced by the Department’s failure to contact him telephonically when he failed to arrive for a job interview.
1.4 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 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 . STATEMENT OF FACTS
2.1 Mr Hesqua applied for a position at the Thomas Wildschutt School.
2.2 Mr Hesqua was short-listed for the interviews. The governing structure conducted the interviews over the period from 4 to 6 February 1997. All candidates were sent telegrams inviting them to the interviews with the committee appointed for that purpose. These telegrams set out the time, date and place of the interviews. Mr Hesqua did not attend the interview as he contends that he did not receive the telegram.
2.3 Mr Hesqua contends that one of his colleagues who also applied for the position, Mr Michael Hercules, also did not receive the telegram. Mr Hercules testified to this effect at the hearing. Mr Hesqua initially declared a dispute but withdrew it subsequently.
2.4 The interviews were attended by union officials one of whom was the representative appointed by Mr Hesqua’s union.
2.5 None of the candidates scheduled to appear for the interviews on 4 February 1997 appeared.
2.6 After time had been allowed for the candidates to arrive the committee and observers went home. No attempt was made to contact the missing candidates at this stage.
2.7 At the request of the union officials present at the interviews the governing structure called on the Post Office on 5 February 1997 in order to establish whether they had any proof of postage and delivery of the telegrams. This proof was obtained. The governing structure and the union accordingly agreed on the method for establishing whether the candidates had been contacted and took a decision to conclude the proceedings without further enquiries once this had been obtained. In this respect it is significant that the Post Office reported that the telegram had been delivered to Mr Hesqua’s home.
2.8 At the conclusion of the interviewing process the union officials signed a certificate declaring that proper procedures had been followed.
2.9 The evidence was that all the candidates were sent telegrams. None of the other candidates had been phoned. Mr Hesqua was also aware that the interviews were being conducted as he was working at the school at the time. He could have enquired into the timing of his own interview.
2.10 Mr Hesqua did not seek to have the process declared null and void. Mr Hesqua and his union were satisfied that the incumbent in the position was performing adequately and they did not wish to upset this appointment.
2.11 Mr Hesqua accordingly contends that the governing body’s failure to contact him telephonically when he did not appear at the interview constitutes an unfair labour practice. He asked for a declaration to this effect coupled with compensation as a solatium.
2.12 A side dispute arose relating to the breach of a moratorium arrangement. It was agreed that this dispute would not form part of my deliberations and I have therefore disregarded this evidence.
3 . DISCUSSIONS
Whilst it would have been relatively easy for the governing structure to put a phone call through to each of the candidates who were due to be interviewed on 4 February 1997 they did not do so. The question is whether or not they were at fault for not doing so. It is significant that the union observers were also present during the process and they too could have put phone calls through to the candidates when they did not arrive at the interviews. Can these omissions be regarded as an unfair labour practice? I would suggest not. A check was done at the behest of the union in order to establish whether the telegrams had been sent and delivered. This was clearly regarded as being sufficient for the union organiser at the time. I cannot now fault the agreed process retrospectively and determine that an unfair labour practice was committed.
4 .FINDINGS
I am accordingly of the view that Mr Hesqua did not establish the commission for an unfair labour practice.
_______________________
ARBITRATOR
Date : 19 May 1998
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CAR Hesqua WC
APPLICANT G R HESQUA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE OTHER
ARBITRATOR
DATE OF ARBITRATION 7 MAY 1998
VENUE CAPE TOWN
REPRESENTATION:
APPLICANT GARY MCKENZIE AND JONATHAN VOSLOO
RESPONDENT MR ISHGAAK MATTHEWS
AWARD:
I am accordingly of the view that Mr Hesqua did not establish the commission for an unfair labour practice.
DATE OF AWARD 29 MAY 1998
Province: Western Cape
Applicant: G R HESQUA
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 29 May 1998
Arbitrator: S H CHRISTIE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR Hesqua WC
In the arbitration between:
G R HESQUA APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . THE HEARING
1.1 The arbitration hearing was held in Cape Town on 7 May 1998 in accordance with 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 at the hearing by SADTU through Messrs Gary McKenzie and Jonathan Vosloo. The WCED was represented by inter alia Mr Ishgaak Matthews.
1.3 The issue in dispute related to the grievant’s contention that he had been prejudiced by the Department’s failure to contact him telephonically when he failed to arrive for a job interview.
1.4 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 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 . STATEMENT OF FACTS
2.1 Mr Hesqua applied for a position at the Thomas Wildschutt School.
2.2 Mr Hesqua was short-listed for the interviews. The governing structure conducted the interviews over the period from 4 to 6 February 1997. All candidates were sent telegrams inviting them to the interviews with the committee appointed for that purpose. These telegrams set out the time, date and place of the interviews. Mr Hesqua did not attend the interview as he contends that he did not receive the telegram.
2.3 Mr Hesqua contends that one of his colleagues who also applied for the position, Mr Michael Hercules, also did not receive the telegram. Mr Hercules testified to this effect at the hearing. Mr Hesqua initially declared a dispute but withdrew it subsequently.
2.4 The interviews were attended by union officials one of whom was the representative appointed by Mr Hesqua’s union.
2.5 None of the candidates scheduled to appear for the interviews on 4 February 1997 appeared.
2.6 After time had been allowed for the candidates to arrive the committee and observers went home. No attempt was made to contact the missing candidates at this stage.
2.7 At the request of the union officials present at the interviews the governing structure called on the Post Office on 5 February 1997 in order to establish whether they had any proof of postage and delivery of the telegrams. This proof was obtained. The governing structure and the union accordingly agreed on the method for establishing whether the candidates had been contacted and took a decision to conclude the proceedings without further enquiries once this had been obtained. In this respect it is significant that the Post Office reported that the telegram had been delivered to Mr Hesqua’s home.
2.8 At the conclusion of the interviewing process the union officials signed a certificate declaring that proper procedures had been followed.
2.9 The evidence was that all the candidates were sent telegrams. None of the other candidates had been phoned. Mr Hesqua was also aware that the interviews were being conducted as he was working at the school at the time. He could have enquired into the timing of his own interview.
2.10 Mr Hesqua did not seek to have the process declared null and void. Mr Hesqua and his union were satisfied that the incumbent in the position was performing adequately and they did not wish to upset this appointment.
2.11 Mr Hesqua accordingly contends that the governing body’s failure to contact him telephonically when he did not appear at the interview constitutes an unfair labour practice. He asked for a declaration to this effect coupled with compensation as a solatium.
2.12 A side dispute arose relating to the breach of a moratorium arrangement. It was agreed that this dispute would not form part of my deliberations and I have therefore disregarded this evidence.
3 . DISCUSSIONS
Whilst it would have been relatively easy for the governing structure to put a phone call through to each of the candidates who were due to be interviewed on 4 February 1997 they did not do so. The question is whether or not they were at fault for not doing so. It is significant that the union observers were also present during the process and they too could have put phone calls through to the candidates when they did not arrive at the interviews. Can these omissions be regarded as an unfair labour practice? I would suggest not. A check was done at the behest of the union in order to establish whether the telegrams had been sent and delivered. This was clearly regarded as being sufficient for the union organiser at the time. I cannot now fault the agreed process retrospectively and determine that an unfair labour practice was committed.
4 .FINDINGS
I am accordingly of the view that Mr Hesqua did not establish the commission for an unfair labour practice.
_______________________
ARBITRATOR
Date : 19 May 1998
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CAR Hesqua WC
APPLICANT G R HESQUA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE OTHER
ARBITRATOR
DATE OF ARBITRATION 7 MAY 1998
VENUE CAPE TOWN
REPRESENTATION:
APPLICANT GARY MCKENZIE AND JONATHAN VOSLOO
RESPONDENT MR ISHGAAK MATTHEWS
AWARD:
I am accordingly of the view that Mr Hesqua did not establish the commission for an unfair labour practice.
DATE OF AWARD 29 MAY 1998