Case Number: PSES GAAR003272 GP
Province: Eastern Cape
Applicant: MRS M S COETZEE
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 17 August 1998
Arbitrator: EBRAHIM PATELIA
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR003272 GP
In the arbitration between:
COETZEE MS APPLICANT
GAUTENG DEPARTMENT OF EDUCATION AND EDUCATION LABOUR RELATIONS COUNCIL RESPONDENT
1 . HEARING AND REPRESENTATION
.1 For the sake of convenience The Gauteng Department of Education and the Education Labour relations Council well be treated as one and referred to jointly as “the employer”. Mrs S M Coetzee will be referred to as “the grievant”. The arbitration took place on 13 August 1998 at the Education departments offices in Pretoria.
.2 The Employer was represented by Mr Jan Thubakgale who is the Acting Deputy Director - Labour Relations of the Gauteng Department of Education. The employer also had the following observers: Mr K Sono, Mr J Thipe both of the Gauteng Department of Education - Labour Relations unit and Ms NSC Ngubane of the Education Labour Relations Council. The grievant was represented by Mr MT De Bruin who is an attorney employed by Legal Wise on behalf of the grievant.
.3 All annexure’s referred to have been made available to the parties at the arbitration. The numbering of the annexure’s is as standardised with the parties at the arbitration.
2 . POWERS
.1 In terms of the Arbitration Agreement as contained in the Education Labour Relations council Resolution no 7 of 1997, Annexure “B”, I am required to:
[a.] determine the issues in dispute, as reflected below, on the evidence presented to me,
[b.] award any sanction that I consider to be fair and/or appropriate to settle this matter.
3 . ISSUES NOT IN DISPUTE
.1 From the evidence led and the arguments presented to the arbitration the following issues are common between the parties:
.1 The grievant was employed initially by the Transvaal Education Department. Her employment contract was later absorbed by the Gauteng Department of Education. She has been employed by the Education department for a total period of 4 years until 31 December 1997.
.2 The grievant until 31 December 1998 worked in terms of the contract of employment in a temporary capacity. Her contract was renewed every three months on the same written terms and conditions.
.3 The grievant was in terms of her contract of employment appointed on a post level 1 position. However, she performed the tasks of a post level 3 employee until 31 December 1997. She received an acting allowance for this until 31 December 1998.
.4 Her gross salary in December 1997 was R6932.50 which was made up of a salary figure of R5096.25 and an acting allowance of R1836.25.
.5 The grievant applied for a permanent placement to the post level 3 position in September 1997 but was rejected for the permanent position. She continued to work in the same official position of post level 1 and performing the acting role of a post level 3 employee until December 1997. She also continued to receive a gross salary of R6932.50 until December 1997. The parties have been communicating with each other regarding this grievance since September 1997.
.6 In December 1997 the grievant was offered a further 3-month renewal of her contract to which she did not react to. The gross salary under this new contract was R5096.25. The gross salary therefore excluded the value of the acting allowance.
.7 In February 1998 the grievant was given “permanent status” by the employer on a post level 1 and with a gross salary of R5096.25. The grievant has from January 1998 not worked for the employer. Although her salary has been processed every month since January 1998, the grievant has not received any remuneration.
.8 Both parties request reinstatement as the appropriate sanction, however on different terms and conditions.
4 . THE ISSUES IN DISPUTE
.1 From the evidence led and the arguments presented to the arbitration the following issues are in dispute between the parties:
.1 Whether the employer created a legitimate expectation of permanent employment with the grievant during the four years of employment?
.2 Whether this expectation, if any, was created for the post level 3 position at the post level 3 rate of salary?
.3 Whether the grievant terminated her services with the employer in December 1997?
.4 Whether the grievant termination of her services, if any, was a constructive dismissal by the employer?
.5 Whether the subsequent permanent placement is fair?
5 . SUMMARY OF THE GRIEVANT’S CASE
5.1 Due to the nature of the issues in dispute the grievant agreed to begin the leading of evidence. The grievant’s representative led the only oral evidence of the grievant herself.
5.2 The grievant testified that her employment in the capacity of post level 3 during the four years created a legitimate expectation of a permanent appointment. When her application was rejected in September 1997 she was surprised as she believed her permanent appointment was merely a formality. She also has not received reasons for her rejection. She testified that the persons who had applied for permanent positions during that same period were given the posts that they were performing under temporary contracts.
5.3 The grievant referred to a series of letters to the employer detailing her dissatisfaction with the situation. She alleged that the employer delayed in resolving her grievance. The grievant resigned in December 1997 by failing to renew the temporary contract of employment offered to her on a lower gross salary. The grievant alleged that her resignation was forced by the refusal of the employer to deal with her grievance. She did not believe the employers promise to investigate her grievance.
5.4 The grievant alleged that the offer of permanent employment made the employer in February 1998 was unfair as it offered appointment and benefits related to a post level 1 appointment. She alleged that as she always worked and received a gross salary on a post level 3 basis, she expected a permanent appointment on this basis.
5.5 She further alleged that she has a Master’s degree in Psychology and is a registered Psychologist. She alleged that in terms of the employers practice she should be regarded as a professional and appointed automatically to a post level 3. She alleged that there has never been an appointment to post level 1 of a professional person. Also her times of work run until 16h00 unlike the half day worked by post level 1 employees. These factors she alleged, emphasised her expectation to be permanently appointed to post level 3, with the required salary.
6 . SUMMARY OF THE EMPLOYER’S CASE
6.1 The employer led no witnesses and presented their case by way of argument.
6.2 The employer argued that the grievant could never expect a permanent appointment as she was aware from the contents of her contract that her appointment was temporary.
6.3 The employer maintained that they had provided sufficient reason for the employer for her rejection in September 1997. The other employees whom they gave a permanent appointment were successful in the selection process and the grievant was not.
6.4 The employer notified that the grievant in letters to her in January 1998 that they were investigating her grievance. The employer argued that at no stage did the employer create an expectation of permanent employment or caused the grievant to resign.
6.5 The grievant always worked under the position post level 1 as contained in her contract of employment. She however performed an acting function of post level 3 and as such received the additional benefit of an acting allowance which quantified her gross salary to R6932.50. The employer argued that in therms of Circular 66 of 1997, point 4.2 these acting allowances fell away as of January 1998.
6.6 The employer alleged that they took on the grievant in February 1998 as a permanent employee in the level post level 1 as they always employed her at this level. This permanent appointment was in terms of Resolution 6 of 1996 that defined employees like Mrs Coetzee to be regarded as “protected” employees whose positions should be made permanent. The employer alleged that the grievant has always remained in the employ of the employer.
7. ANALYSIS OF THE EVIDENCE PRESENTED
7.1 The grievant argued that she had a legitimate expectation of permanent employment due to her duration of service, other temporary employees being made permanent and the general comments made by certain superiors that permanent appointment was a mere formality. The grievant led clear evidence only on the duration of service. No evidence was led to corroborate the evidence of the other two suggestions.
7.2 For a legitimate expectation to be created it must be a reasonable expectation by the grievant and it must be within the capacity of the employer to satisfy the expectation. She did the same tasks and received the same salary scale for 4 years. The grievant by her own admission was aware always that she was performing under a temporary contract that needed to be renewed every three months.
7.3 Her reaction to not being appointed as permanent employee
in September 1997 shows that the expectation within her self was real. The issue is whether the expectation can be reasonably found to have been caused by the employer. I find that a continued, consistent relationship over a period of 4 years can cause an expectation of permanent employment, which more probably occurred here.
7.4 The issue of whether it is within the power of the employer to provide such permanent employment is clear. By the employers own admission and from the letter marked as annexure “K” a Resolution 6 was passed in July 1996 to classify persons like the grievant as “protected” workers who should be placed in a permanent position. I find that on this basis and by the employers own admission the grievant should have been employed on a permanent basis from the effective dat of this resolution. The effective date from the oral evidence appears to be 1 July 1996. I however cannot make a further finding on this resolution as it has not been provided to me.
7.5 I find that the employer probably caused a reasonable expectation of permanent employment within the grievant. I however find that the employer failed to abide by Resolution 6 of 1996. It appears more probable that the employer in February 1996 realised their mistake in not abiding by the relevant resolution an appointed the grievant as a permanent employer.
7.6 The employer in their evidence, to which I place less evidentiary value as it has not been corroborated by any witness evidence, presented an illogical argument. They argued that the grievant was always a temporary employee. There was no termination of the employment contract and that her employment has continued to become one of a permanent employee from February 1998. I don not understand how the employer could argue that the employment relationship still exists if they maintain that the relationship until December 1997 was one of temporary employment. If it was temporary then clearly there should have been termination as of January 1998 as the grievant failed to renew her contract. The grievant failed to identify the relationship that existed between the parties in January 1998. Then suddenly, without the grievant’s consent, there is a permanent employment contract that the employer alleges exists since February 1998.
7.7 There was a termination of the employment relationship in December 1997 as the only existing employment relationship was based, although unfairly, on the temporary contract that was offered but not accepted by the grievant. There cannot be a relationship based on the alleged permanent employment contract as there was never an acceptance of this offer by the grievant.
7.8 The grievant, as is evident from the many letters written to the employer by or on her behalf, was clearly frustrated in December 1997. I find that her termination of the employment relationship was based on her frustrations of not being offered a permanent post by the employer. The employer was to my mind the cause of the frustrations that caused the termination. I am certain that had the employer enforced Resolution 6 this dispute could have been avoided.
7.9 The employer also failed to address the concern raised by the grievant soon enough. Considering the number of correspondence sent between the parties it is clear that the employer failed to rectify the situation swiftly. The first letter was sent in September 1997, the employer offered the grievant a permanent position only in February 1998 based on a Resolution passed in 1996. This is an unacceptable situation.
7.10 The only issue remaining is whether the employment relationship was based on a post level 3 or a post level 1.
7.11 It is common cause that the grievant worked in the official post level 1 position for 4 years until December 1997. She however performed tasks of a post level 3 employee. I find that her salary advice reflects an acting allowance plus a salary to arrive at the gross salary amount of R6932.50. The grievant was receiving an “acting allowance” and not a salary of a post level 3 employee as argued by the grievant. Her tasks were done in an “acting capacity”. I find the employers actions of removing the grievant’s “acting allowance” in terms of the Circular 66 of 1997, point 4.2, to be fair and in line with this broader agreement.
7.12 The issue remains which post would it be fair to place the grievant in. The employer never in the arbitration disputed the allegation by the grievant that she has a Master’s qualification in Psychology and that she is a registered Psychologist. It was also not disputed that it is common practice for the employer to appoint people with these qualifications in a post level 3 position. The employers letter recommending permanent appointment (annexure “K”) refers to the employers highest qualification to be a Higher Diploma in Education. This point was never corroborated or referred to by the employer during the arbitration. I accordingly find the grievant’s version to be more probable on this issue.
7.13 The employer alleged that for the employer to be appointed to a professional appointment she had to be appointed first as an educator. The employer led no further corroboration on this point. The grievant in this matter performed the tasks as a professional psychologist throughout her employment with the employer. Although this was in an acting capacity, she obviously displayed the competence necessary for her contract to be renewed for such a long period. I find that appointing the grievant on a post level 3 position would be fair.
8. MY FINDINGS ON THE EVIDENCE ARE THAT:
8.1 The employer failed to appoint the grievant in a permanent capacity in terms of the binding Resolution 6 of 1996.
8.2 The employer should fairly appoint the grievant on post level 3.
8.3 The employment relationship was terminated on 31 December 1997 by the grievant’s non renewal of the temporary contract offered.
8.4 The employer caused the grievant to terminate the employment relationship by failing to deal with the grievance effectively.
8.5 The permanent contract of employment has no force and effect as the grievant did not accept the appointment.
9. ACCORDINGLY I DETERMINE THAT:
9.1 The employer to re-employ the grievant on a permanent basis with effect from 1 January 1998 on post level 3.
9.2 The employer to pay to the grievant all salary and benefits attributed to the post level 3 appointment with effect from 1 January 1998.
Dated at Johannesburg on 27 August 1998.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR003272 GP
APPLICANT MRS M S COETZEE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONTRACT / APPOINTMENT
ARBITRATOR EBRAHIM PATELIA
DATE OF ARBITRATION 13 AUGUST 1998
APPLICANT MR M T DE BRUIN
RESPONDENT MR JAN THUBAKGALE
1 The employer to re-employ the grievant on a permanent basis with effect from 1 January 1998 on post level 3.
2 The employer to pay to the grievant all salary and benefits attributed to the post level 3 appointment with effect from 1 January 1998.
DATE OF AWARD 27 AUGUST 1998