Case Number: PSES NAR001192A KZN
Applicant: MS SEETHAL
Respondent: DEPARTMENT OF EDUCATION AND CULTURE
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 3 March 1999
Arbitrator: R M LYSTER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES NAR001192A KZN
In the arbitration between:
ASSOCIATION OF PROFESSIONAL EDUCATORS OF KWAZULU-NATAL (APEK) MRS SEETHAL APPLICANT
DEPARTMENT OF EDUCATION AND CULTURE RESPONDENT
1 . DETAILS OF HEARING
The arbitration took place at the offices of APEK in Durban on 25 February 1999. APEK official Mickey Pierce represented the grievant Mrs Seethal, teacher/educator of Dundee Secondary School, and the employer was represented by Mr M M Moodley of the Department of Education and Culture.
2 . THE ISSUE
2.1 This arbitration was conducted in terms of the Education Labour Relations Council, following the lodging of a grievance by the grievant Ms Seethal, after a number of unsuccessful conciliation proceedings, and after referral of the issue to the CCMA. Initially jurisdiction by the CCMA was ousted by an exclusion clause binding the parties, but after consenting to jurisdiction the matter proceeding in that forum.
2.2 However, after a short while into the proceedings, the grievant chose to withdraw her consent to the CCMA hearing the matter. The matter now comes to arbitration for a final and biding decision. I should add that by arrangement, the grievant sent a bundle of documents which she had been unable to present at the hearing, to Mr Pierce to be sent to myself and Mr M Moodley. I will not go into the contents of these documents now save to say that one of them was form attorneys instructed by Ms Seethal in January of this year, and was addressed to the Education Labour Relations Council. Without saying so directly, the letter seems to imply that grievant is not happy with the fact that arbitration is being held in terms of the ELRC.
2.3 However, I should place on record that at the hearing on 25 February, neither grievant nor her representative raised any objection of any kind in this regard. It was also expressly made clear that the award was final and binding.
2.4 The grievant raised a number of issues for submission to arbitration, all of which concerned alleged unfair treatment, discrimination and victimization of the grievant by the Education Department. I am required to determine, based on the evidence presented in the arbitration, whether the Department of Education, by its behaviour vis-a-vis Ms Seethal did in fact victimize, discriminate against or unfairly treat grievant. As arbitrator, I am empowered to make an award which I deem appropriate. These issues were:
2.4.1 In November 1994 grievant’s salary was suspended for a period of three months without, she alleges, good cause or proper explanation, and subsequently paid in February 1995. She was obliged to obtain private loan facilities to cover her expenses during the period she was without a salary, at some cost to herself, including ongoing bank interest charges. She requires an explanation as to why the salary was stopped, and financial compensation for her out of pocket expenses.
2.4.2 She alleges she was unfairly overlooked for promotion on two occasions when a person who she alleges was unqualified for the post was given such post, and when a promotion post was filed by a teacher who was transferred into the position from another school.
2.4.3 She was refused her 20 year long service award, being a financial gratuity, and after intervention by grievant’s attorneys, the amount was paid to her. She requires an explanation as to why the award was initially refused.
2.5 A fourth issue was tabled but subsequently withdrawn by consent between the parties, who agreed that the matter was not properly arbitrable, and that an attempt should be made to resolve the matter at a separate forum. This issue concerned the veracity of the contents of a number of letters written by these successive principals at grievant’s school, and which had been sent to head office and copies placed in grievant’s personal file. The letters contained apparently critical material about grievant, which grievant said were untrue, and were damaging to her future prospects of promotion. I mention the substance of this issue, because I believe it is relevant to the manner in which grievant feels she is being regarded and treated by the Education Department.
2.6 Grievant believes that taken individually and cumulatively, the issues raised above indicate a pattern of unfair and discriminatory behaviour by the Department of Education, and seeks relief in the form of an appropriate award.
3 . EVIDENCE AND ARGUMENT
3.1 It is apparent that both the Education Department and APEK, have gone to extraordinary lengths to resolve this matter, without success. All the issues raised are the sort of issues which one would have thought could and should have been resolved by mediation, or by means of an informal round table meeting between grievant and the Education Department. However, despite extensive efforts, particularly by Mr Pierce, grievant was not satisfied with the various attempts to resolve the matter, and she exercised her right to take the matter to arbitration through the ELRC.
3.2 I shall deal with each of the three issues in turn.
3.3 With regard to the first issue viz: the stopped salary for the three month period November 1994 to January 1995, the department’s version is that the salary was stopped on the basis that the grievant was considered to have absconded from her post when she left school on 17 October and only returned on 31 October. Ms Seethal gave evidence as to why she left school, starting that as a result of a number of problems she was experiencing at the school, she had had a meeting on 17 October with Inspector N M Moodley at which he had ventured that grievant was experiencing a “break in your human relations or words to that effect. Grievant, on her own version was extremely upset, felt unable to continue working for some time, and advised the principal that she was going home.
3.4 She returned for most of the month of November, and again left school on 25 November, after she had been barred by the principal (Mr Mocktar) from attending staff meetings until the first term of the following year. The decision was apparently taken by staff members, on account of grievant’s practice of tape recording meetings without the knowledge or permission of the other staff members. Grievant knew that Inspection N M Moodley was at the local primary school on that particular day, and advised him that she was going home, because she again felt that she had been unfairly treated by the principal. Grievant returned to school on 9 December, and was again regarded by the department as having absconded. Grievant said that she could not understand why she was regarded as having absconded, because on both occasions the principal and Mr N M Moodley knew where she was.
3.5 Mr M M Moodley for the department indicated that after extensive investigation into the matter, and with little cooperation from the grievant, the department had eventually decided to “regularise” the absconsion i.e. to treat it as one form of leave or another. He said that even though grievant had ignored the standard proceedings for leave, sick leave and urgent personal leave, the department had decided to regard the first period of absence as vacation leave, and the second period as leave for urgent personal reasons, and grievant’s salary for November to January was repaid in full in February. He explained that after an educator had been reported as having absconded, the salary was stopped, and this administrative process took a long time to reverse, particularly where there was little or no cooperation from the grievant.
3.6 ISSUE 1. ANALYSIS OF EVIDENCE
3.6.1 In my view, grievant was the author of her own misfortune in this matter. She did not take the proper steps to ensure that her absence was properly recorded and authorized. A gratuitous meeting with a school inspector who happened to be present at a nearby school, cannot in any circumstances be regarded as having been proper compliance with the regulations with regard to leave of absence.
3.6.2 It is obvious that grievant and the principal were not on good terms. It is probable that if they had been on good or amicable terms, Mr Mocktar would have telephoned or visited grievant and enquired about the reasons for her absence, and advised her to fill in the necessary forms.
3.6.3 He was not however obliged to do this. Grievant is an experienced teacher and long time employee of the department, and obviously knew what was required of her, and she should have followed the regulations to the letter if she wanted her sudden and rather dramatic departure from the school recorded as legal stick or vacation leave. She did not do so, and she must bear the consequences.
3.6.4 Award. I do not find that the department acted in any way unfairly or irregularly in stopping her salary. In fact it comes as a surprise to me that they agreed to regard the two periods of absence as leave and urgent personal leave, and the fact that they did, is an indication of a tolerant attitude to what I regard as grievant’s rather impetuous actions. However, having agreed to “regularise” the two periods of absence, they cannot still maintain that she absconded, and insofar ast his is still recorded, in grievant’s records with the department, the department should take steps to ensure that this is corrected, and that her records do not reflect that she absconded during this period.
3.6.5 No evidence whatsoever was given to me of the extent to which grievant was financially disadvantaged. However, having found that she brought the situation upon herself because of her failure to follow proper procedures, I do not make any award in her favour with regard to out of pocket expenses arising from the fact that she was obliged to take a loan.
3.7 ISSUE 2. EVIDENCE AND ARGUMENT
3.7.1 That is the promotion issue. Much of the evidence given by grievant was irrelevant to these proceedings and to this issue. For example, extensive was given concerning the principals actions in barring grievant from applying for a promotion on the basis that she had been found guilty of misconduct. He did so in the belief that a letter written to her, severely reprimanding her for her behaviour, was a finding of misconduct, in which case grievant would indeed, in terms of depatmental regulations, have been disbarred from applying for promotion. However, when she raised it with the department, they correctly advised her that the letter of reprimand was not tantamount to a finding of misconduct, and that she was able to apply for a promotion, which she duly did. This is not evidence of anything at all other than the fact that grievant had been reprimanded, and I am surprised that the grievant chose to raise it in this forum.
3.7.2 Two promotion issues were raised. The first in 1991, and the second in 1993. With regard to the first promotion, grievant did not appear to seriously contest this matter, or the version given by Mr M Moodley which was to the effect that the person who had got the job that grievant had also applied for, had beaten grievant on all four relevant criterion, and had properly awarded the post.
3.7.3 With regard to the 1993 promotion, which was for a post vacated by the person (Reddy) who had got the 1991 promotion ahead of grievant, grievant’s evidence was extremely confusing. She wove into her evidence regarding her application for promotion, the entire issue of the letter of reprimand and the principal’s subsequent refusal to allow her to apply for promotion, but neglected to inform me that the department had subsequently put the matter right. She explained that she had been given an E assessment symbol by the principal.
3.7.4 She said that she had reported the principal’s refusal to allow her to apply for promotion to her union (SADTU). At some stage a SADTU organizer and a representative and a school welfare officer had come to the school and had held a discussion with the principal. The discussion had turned on, not the question of the refusal to allow grievant to apply for the promotion, but the question of grievant’s motivation for promotion to the Regional Moderation Committee. After discussion, the principal changed the assessment symbol to a C. Grievant still disputes this and said that she should have been tested on her mathematic ability and been given an A symbol.
3.7.5 After grievant refused to sign the motivation it subsequently went to a Dispute Resolution Committee in Pietermaritzburg, who evaluated grievant’s documents and arrived at a C evaluation. Mr M Moodley explained that the evaluation was not done on the educator’s particular subject ability, but was a clinical management assessment, and that the person’s overall management ability and experience were evaluated. In the event, grievant was not appointed to the post, but one Singh was appointed, having a higher evaluation than grievant.
3.7.6 It was subsequently discovered that he did not have the requisite two years teaching experience at matric level, and his posting was cancelled. At that time, according to Mr Moodley, it was possible within the department, to fill a post such as this one, by transferring an educator on the same graded post, from another school. Mr Moodley, who has been head of promotions in the province since 1991, said that this was in accordance with departmental regulations, and was an extremely common practice, and produced other departmental documents to show that large numbers of posts in the province were filled at that time, by transferring the appropriate people from other schools.
3.7.7 He said that assessments were only done if the person was seeking a higher status job on the same grade, but if this was not the case, an assessment or evaluation was not done, and the post could - in those times, simply be filled by transferring someone from a similar post. Grievant challenged this, but was unable to produce any substantive evidence to refute Mr Moodley’s evidence. The post was given to a teacher (Mr. Mathabal) from a nearly school. Grievant said that the vacant post was a promotion post and should have been advertised.
3.8 ISSUE 2. ANALYSIS OF EVIDENCE
3.8.1 Again, on an analysis of the evidence, I cannot find that grievant has in any way been unfairly discriminated or victimized by the department. I obtained the impression that she deliberately withheld evidence in order to strengthen the impression that she was being victimized. She did not mention that Mr Moodley had written to her and explained to her that the letter of reprimand did not disbar her from applying for promotion, and after her evidence I was left with the impression that she had indeed been very unfairly treated.
3.8.2 This was subsequently adequately explained by Mr M Moodley. She made out no case with regard to Reddy’s promotion, was not able to show that the apportionment of Mr Mathabal was irregular. I accept Mr M M Moodley’s evidence in regard to the issue of transfers at that time. It is his particular area of knowledge and expertise, and indeed what he said was backed up by documents tabled at the arbitration.
3.8.3 With regard to grievant’s assessment I must accept the symbol, or assessment that the Dispute Resolution Committee arrived at i.e. a C. I have no other basis for coming to another decision. No evidence was put in front of me which would enable me to come to any other decision, other than grievant’s submission that she should have been awarded a higher symbol. With respect, that is not a good reason for interfering with the decision of a committee who had access to relevant documentation etc.
3.8.4 Award. Accordingly, I cannot find any basis on which grievant has been unfairly treated, discriminated against or victimized, and make no award in her favour.
3.9 ISSUE 3. EVIDENCE AND ARGUMENT
3.9.1 The last issue concerned a 20 year long service award: Grievant applied for it, and she was turned down. She instructed an attorney who wrote to the department requesting reasons for the refusal, and suggesting that the matter may be taken to court on review.
3.9.2 The department then itself reviewed its decision, and without giving reasons as to why it had initially refused to grant the award, or why it had changed its mind and granted it, then awarded her the relevant financial service award. No further legal action was taken. When asked what relief she wanted, grievant sais that she required an explanation for the initial refusal, and the costs of the attorney.
3.9.3 Mr Moodley was called on to explain why the department had refused. He said that the long service awarded was discretionary, and was only given if the educator complied with the criteria. Among those were continuous service for the required period, adequate attendance throughout the period and the degree of professionalism exhibited by the educator throughout the period.
3.9.4 He said that this was regarded as the most important of the criteria. He said that from an overview of grievant’s tenure, the fact that she had been involved in regular conflict and negative interaction with the majority of her colleagues over extended periods, and with a succession of principals. It could not be said that her employment was “event free”, and all things considered, it was felt that she did not qualify for the award in terms of the relevant criteria. He said the department had reviewed its decision, and had decided on balance to make the award to grievant.
3.9.5 Mr Moodley said that, that was the department’s explanation, and that was the relief that grievant sought.
3.9.6 Award. With regard to the attorney’s expense, grievant conceded that she was a member of Legal Wise, i.e. an insurance company that guaranteed legal advice in exchange for a monthly premium of R35,00 according to grievant’s evidence. She conceded that she was a member at the time and hence would have incurred that monthly expense in any event. I cannot therefore find that she has been financially prejudiced, and cannot make any monetary award in her favour.
3.9.7 Grievant has now received an explanation as to why the long service award was initially refused. It may not satisfy her curiosity, but in my view, it is an adequate explanation. The fact that it was reviewed by the department and overturned, further diminishes its relevance. Grievant requested that she receive this explanation in writing. However, I do not intend to require the department to do so. The matter is now resolved, and I suspect that a lengthy written explanation for a decision that was taken three years ago, and then subsequently overturned, is likely to lead to further aggravate the grievant’s perceptions that the department was treating her unfairly or victimizing her. I do not find that there is any evidence for such perception.
3.9.8 The unpleasant episodes that have occurred over the past years have, I believe, been of largely of grievant’s own making. There also seems to have been a particular personality clash with a past principal, Mr Mocktar. However, this is my view does not translate into a pattern of discriminatory behaviour by the Education Department. I would urge grievant to put these issues and episodes behind her, and to look to the future and not to the past.
3.9.9 She is obviously an experienced and caring teacher, and an intelligent and articulate person, and clearly has a lot to offer the learners of this province. Many of the documents which were sent to me following the arbitration testified to her skill and dedication as a maths teacher, as well as her willingness to become involved in extra-curricular activities.
3.9.10 I should add that none of the documents which formed part of the large pack of documents sent to me after the hearing, had any bearing on any one of the three issues raised at the arbitration.
3.10 The effect of the arbitration award is that:
3.10.1 The issue of the withholding of her salary in 1994/5;
3.10.2 The issue of the 1991 and 1993 promotions and her evaluation/assessment; and
3.10.3 The issue of the long service award;
are now finalised, and may not in the future form the subject of a further dispute.
3 March 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES NAR001192A KZN
APPLICANT MS SEETHAL
RESPONDENT DEPARTMENT OF EDUCATION AND CULTURE
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR R M LYSTER
DATE OF ARBITRATION 25 FEBRUARY 1999
APPLICANT MICKEY PIERCE
RESPONDENT M M MOODLEY
The effect of the arbitration award is that:
The issue of the withholding of her salary in 1994/5;
The issue of the 1991 and 1993 promotions and her evaluation/assessment; and
The issue of the long service award;
are now finalised, and may not in the future form the subject of a further dispute.
DATE OF AWARD 3 MARCH 1999