Case Number: PSES CAR 001351 WC
Province: Western Cape
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 19 October 1998
Arbitrator: DAVID WOOLFREY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 001351 WC
In the arbitration between:
WESTERN CAPE EDUCATIONAL DEPARTMENT RESPONDENT
1 . DETAILS OF HEARING AND REPRESENTATION
1.1 The grievant was appointed as a post level one teacher at Ikamvaletu School in September 1992. In 1995 he became the acting HOD of English, a position he currently holds. Towards the end of 1996 two Deputy Principal positions became available at the school - posts 1012 and 1013. On 22 November the grievant applied for the posts. His name was ‘sifted’ for both posts by the Department acting in terms of clause 2 of Resolution 13 of 1995. His name, amongst others, was duly forwarded to the School Governing Body for short-listing. He was short-listed by the Governing Body and, following an interview, nominated for appointment to post 1013. The nomination was not, however, accepted by the Department. It is this refusal of the Department to accept the nomination that the grievant has asked me to declare an unfair labour practice.
1.2 Subsequent to the nomination a dispute was declared by a third party. The grievant contended that the dispute was only declared in respect of post 1012, and should not have affected his nomination in respect of post 1013. I do not believe that anything turns on this issue, and will return to it later. As a result of the investigations that it conducted after the declaration of the dispute, the Department discovered what it believed to be two irregularities around the nomination of the grievant. The first pertained to the grievant’s qualifications in terms of years of teaching experience. One of the requirements of the post was at least five years teaching experience. On his application form, dated 22 November 1996, the Applicant had filled in under ‘previous experience’ the following :
‘1991 January to June
1992 to 1996'
1.3 The Department had sifted the grievant believing that he had employed as a teacher for six months in 1991 and for a full five years period (1992 to 1996). It was only during the course of the investigations following the declaration of the dispute that the Department ascertained that the grievant was employed only from September 1992. This meant that the grievant did not qualify under the five year requirement.
1.4 The second ‘irregularity’ pertained to the failure of the Governing Body to secure the presence of all interested parties at the short-listing process. There was some dispute as to whether the Department’s stance on this point had any merit. In view of the decision that I have come to on the first irregularity it is unnecessary for me to make a decision on the second.
1.5 The grievant did not dispute that at the time he submitted his application his teaching experience fell short of the required five years. He submitted, however, that the length of his teaching experience must be judged not at the point that he submitted his application, but at the date of appointment which in this instance was 1 April 1997.
1.6 The vacancy list which set out the requirements for the post was published on 15 November 1996. It specifies the minimum requirement for the post as being five year’s experience. The question that arises is this : at what point is the duration of an applicant’s previous experience judged? It is judged on the date on which the Applicant completes the application form, or the closing date for the application (as submitted b the Department) or the date of appointment (as submitted by the grievant)?
1.7 Under ‘requirements for appointment’ the vacancy list provides that ‘Applicants must comply with the following requirement’ (my emphasis). The use of the word applicants is instructive. It is a clear indication that the qualifications are judged at the time the application is made, or at best for the grievant, at the closing date for the applications. This interpretation accords with ordinary commercial practice and, in the absence of any contrary indication, must be adopted here.
1.8 The Department was therefore justified in adopting the view that the grievant did not qualify for the position and in refusing to accept the nomination.
1.9 The grievant attacked the legitimacy of the dispute that was declared, and suggested that there was no basis for the dispute. I do not see how this assists his case. Whether or not the Department acted appropriately in responding to the dispute appears to be beside the point. Whatever induced the investigation, the fact remains that the Department unearthed an irregularity (the fact that the grievant did not qualify) and reacted accordingly. It would have been improper for it not to have done so. It was not argued that the grievant should have been afforded a hearing prior to the nomination not being accepted, and (in any event) in the light of the comments of Davis J in De Vries v Western Cape Education Department and another (Case 12518/1996) it is unlikely that a legitimate expectation of appointment arises in circumstances such as these (pages 9-10 of the typed judgement)
1.10 In the light of the above, there is no basis upon which I can find that the Department committed an unfair labour practice. Accordingly, no order is made.
Date : 19 October 1998
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CAR 001351 WC
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPLICATION FOR POST
ARBITRATOR DAVID WOOLFREY
DATE OF ARBITRATION
There is no basis upon which I can find that the Department committed an unfair labour practice. Accordingly, no order is made.
DATE OF AWARD 19 OCTOBER 1998