Case Number: PSES 03/99/168 WC
Province: Western Cape
Applicant: P JACOBS AND A BUIS
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 8 April 1999
Arbitrator: DAVID WOOLFREY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 03/99 168 WC
In the arbitration between:
P JACOBS AND A BUIS APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . DETAILS OF HEARING AND REPRESENTATION
1.1 This above matter was heard as part of the right sizing dispute settlement week. The employer was represented by Mr E Southgate, assisted by Ms H Ward, and the employees by Mr G MacKenzie of the South African Democratic Teachers Union.
1.2 An unsuccessful attempt was made to settle the dispute, after which a certificate of non-resolution was issued and the matter proceeded to arbitration.
1.3 The employer declared that it had been able to reabsorb Mr Buis into the school’s establishment, and it was agreed, after some discussion, that the matter would proceed only in respect of Mr Jacobs.
1.4 Mr Jacobs has been employed at the Belgravia Secondary School (hereinafter ‘Belgravia’ or ’the school’) since 1990. He was declared in excess early in 1999. In his statement of case he declares that the process of rationalisation conducted at the school was unfair for a number of reasons. Most of the reasons pertained to the procedures followed by the school in determining which posts were in excess and in the selection of persons for redeployment.
1.5 I have given careful consideration to the evidence lead before me. I am satisfied that there was substantial compliance with the procedures set out in the Resolution and Circular up to the point where one post in the accounting department was found to be excess. Thereafter, the process failed for the reasons given below.
1.6 Once the issue had been narrowed down to a choice between Mr Jacobs and Ms Isaacs, the Principal should have consulted with the staff specifically over the question of which of the two parties should be selected for redeployment. This is the most sensitive stage in any rationalisation process. It is the stage at which parties are most likely to feel aggrieved when they are chosen (amongst others) for redeployment. It is vital that at this stage both the staff in general and the individuals in particular be consulted over who is to be redeployed. This requirement is implicit in par 6.2.2 (a) of Resolution 6 of 1996.
1.7 No evidence was led that either the staff in general or Mr Jacobs in particular were consulted over the choice of either him or Ms Isaacs. No evidence was led of the principal or the Circuit Manager considering the views of the staff on this issue. It is true that at one of the staff meetings the Principal had indicated to the staff that extra-curricula activities would have to be taken into account. But at that stage his point was still an abstract one. In fact, Mr Arnold said that he used the example of Mr Jacobs (a co-incidence, one would assume) and one McKay. The voice had not yet come down to Mr Jacobs and Ms Isaacs. Once the matter had crystallised in that fashion, it was incumbent on the principal to consult the staff over the selection of either of the parties for redeployment. At that stage, the staff would have had an opportunity to give their views specifically on the issue of which of the two should be selected for redeployment. At the very least, the two individuals concerned should have been asked for their views. Instead, they were presented with a fait accompli. The wording of the Minute of 2 February meeting confirms this. The staff were simply informed that educators who were willing to go the extra mile ‘were more favourably considered’ and that ‘her (Ms Isaacs) contribution weighed heavier than that of Mr PJ Jacobs.’ This is more in the nature of a report to the staff, than an attempt to seek their views. This is not a mere technical defect. It is one that goes to the heart of fair procedure and good decision making.
1.8 I accordingly find that for the above reason the decision making process (an envisaged in item 6 of the grievant’s statement of case) was unfair because the principal failed to consult properly with the staff or the affected parties over the selection of either one of the two parties for redeployment.
1.9 Acting under the agreed terms of reference I intend making an order that will expeditiously dispose of this matter in an appropriate fashion.
1.10 The decision to declare Mr Jacobs in excess is rescinded. The WCED shall convene a meeting to consider who of Mr Jacobs and Ms Isaacs shall be declared to be in excess. Mr Jacobs and Ms Isaacs will be invited to put their views at the meeting. The staff shall be invited to elect one person to attend the meeting and put their viewpoint. Both Mr Jacobs and Ms Isaacs shall be entitled to have a representative present.
1.11 It was clear that Mr Arnold had made up his mind very firmly that Ms Isaacs should be retained. It is therefore inappropriate to expect him to make the decision with an open mind. His place should be taken by a person to be nominated by the WCED. That person, together with the Circuit Manger (who will also be invited to the meeting) shall have the power to decide, after consulting fully with all concerned at the meeting, which of the two parties are to be declare in excess. The meeting is to be convened within 14 days of issuing of this award. Parties who do not avail themselves of the opportunity of attending shall forfeit their right to be consulted.
Date : 8 April 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 03/99/168 WC
APPLICANT P JACOBS AND A BUIS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPOINTMENT / RIGHT SIZING DISPUTE
ARBITRATOR DAVID WOOLFREY
DATE OF ARBITRATION
APPLICANT MR G MACKENZIE (SADTU)
RESPONDENT MR E SOUTHGATE AND MS H WARD
It was clear that Mr Arnold had made up his mind very firmly that Ms Isaacs should be retained. It is therefore inappropriate to expect him to make the decision with an open mind. His place should be taken by a person to be nominated by the WCED. That person, together with the Circuit Manger (who will also be invited to the meeting) shall have the power to decide, after consulting fully with all concerned at the meeting, which of the two parties are to be declare in excess. The meeting is to be convened within 14 days of issuing of this award. Parties who do not avail themselves of the opportunity of attending shall forfeit their right to be consulted.
DATE OF AWARD 8 APRIL 1999