PSES CMA 000050 WC
PSES CMA 000050 WC
Award Date:
14 April 1999
Case Number: PSES CMA 000050 WC
Province: Western Cape
Applicant: MR S WILLENBURG
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 14 April 1999
Arbitrator: DENISE RUDOLPH
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CMA 000050 WC
In the arbitration between:
SADTU obo MR S WILLENBURG APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
REPRESENTATIVES : WCED - Mr K Petersen
(Labour Relations)
SADTU - Ms A Jacobs
1 . INTRODUCTION
The dispute arose following the rationalisation process conducted at Lentegeur Senior Secondary School during the period November/December 1998 during which one post level two teacher had to be identified as in excess. The dispute was referred to conciliation which had not resulted in any formal agreement between the parties. In the absence of a final agreement the matter was referred to settlement week for expedited conciliation-arbitration.
2 . TERMS OF REFERENCE
The terms of reference agreed to by the parties in this matter provide that the conciliator-arbitrator has the power to decide :
“In each case, whether, in the light of information, evidence and argument received in the conciliation process, the provisions of Resolution 6 of 1998 were substantively and procedurally fairly applied and/or interpreted and/or whether the rationalisation process in terms thereof was fairly conducted.”
3 . THE ISSUES
3.1 The disputant, Mr S Willenburg, represented by SADTU, contended that the was incorrectly identified and that the process was unfair for the following reasons :
3.1.1 The views of the general staff were not taken into account.
3.1.2 The subject physical science was incorrectly identified as having an excess of post; and
3.1.3 The LIFO principle was not applied in determining which of two teachers teaching physical science should be determined to be in excess.
3.2 The Department on the other hand contended that :
3.2.1 The junior staff had given the senior staff a mandate to proceed with the process as it was a post level two post that was in question.
3.2.2 The identification of physical science as the subject to be declared in excess was correctly done in terms of an assessment of the curricular needs of the school, the number of pupils and number of teachers; and
3.2.3 The LIFO principle referred to in clause 6.2.2 () of Resolution 6 of 1998 was not applicable as the individual was identified in terms of 6.2.2 (b) i.e. the curricular needs of the school and therefore two educators were not competing for the same post. The extra curricular activities of the other teacher were taken into consideration in this regard.
4 . EVIDENCE
4.1 The Department called the Principal of the school whose evidence was largely undisputed and can be summarised as follows :
4.1.1 The requirements of Resolution 6 of 1998 to inform the staff and call a formal meeting had been compiled with.
4.1.2 At a formal meeting convened for this purpose, the staff were unable to make any suggestions or state their views. One staff member proposed that the senior staff take the responsibility for the process in order to find a possible solution. This proposal was accepted.
4.1.3 The senior staff met on 3 occasions and according to the Principal were “in the dark” about how to interpret the Resolution and were “not at all sure how to conduct the process”. The Principal conceded under cross-examination that he did not seek assistance or direction from the Circuit Manager in this regard.
4.1.4 The senior staff examined the curricular needs of the school, according to the Principal’s testimony, by looking at the number of post level two teachers in each subject, the number of pupils and the number of periods taught by each of the 7 post level two teachers.
4.1.5 On the basis of this analysis the disputant was declared to be in excess for the reason that “he was teaching fewer periods at the time than the other post level two teacher employed to teach physical science”. Under cross-examination the Principal conceded that the allocation of periods was not something that the disputant could control and that his teaching load had been reduced earlier in the year on account of the fact that he had applied for a voluntary severance package. He had later withdrawn the application but his classes had not been fully restored.
4.1.6 This proposal was conveyed to the general staff at a meeting where strong opposition (“hewige teenkanting”) was recorded.
4.1.7 Notwithstanding the opposition and in the absence of any alternative proposals by the general staff, the senior staff’s proposal was conveyed to the Circuit Manager.
4.1.8 The Circuit Manager was advised that there had been opposition to the proposal. He enquired what the extra curricular activities of the two physical science teachers were and was informed that the other teacher was actively involved in extra curricular activities and minuted the fact the teacher was “by far more involved in extra-curricular activities” (than the disputant).
4.1.9 The Principal stated that the extra curricular activities was not the basis of the staffs’ decision but was a contributing factor in the decision taken by the Circuit Manager to confirm the identification of the disputant as being in excess.
4.1.10 The fact that the disputant’s length of service was much longer than the other physical science teacher was not relevant, according to the Principal, as the selection was made on the Curriculum needs of the school under clause 6.2.2 (b) of Resolution 6 of 1998 and not under 6.2.2 (d) which refers to the use of the LIFO principle.
4.2 The evidence led by Mr F Stripp, the Circuit Manager for the school was of little value as he had been away at the time and the process had been conducted by a colleague, Mr B F Daniels. Mr Stripp confirmed that he had conducted an investigation after the dispute had been lodged. He stated that he had not had sight of any documentation which may have been used during the process as he had not requested this. He confirmed that it had been reported to him that the assessment of the curricular needs had been done by looking at the number of post level two teachers and their classes, number of pupils and allocated number of periods.
5 . EVALUATION OF THE EVIDENCE
5.1 The evidence of the Principal was undisputed and the union did not lead any witnesses to testify on behalf of the disputant. The determination is therefore made on the basis of the version as presented by the Principal.
5.2 The Principal, in his evidence, confirmed that the two contributing factors to the identification of the disputant as being in excess were firstly that he was teaching less classes than the other post level two physical science teacher, and secondly that he was less involved in extra-curricular activities. The first was the only contributory factor as far as the senior staff were concerned and the second influenced the decision of the Circuit Manager to confirm the decision of the senior staff. The fact that the disputant had many more years service than the other teacher was common cause but as not a factor taken into account at the time.
5.2.1 Clause 6.2.2 (b) of Resolution 6 of 1998 in terms of which the rationalisation process had be conducted, provides that the following, inter alia must be taken into account:
“The needs of the institution, more particularly in relation to the specific curriculum obligations of the institution, the number of classes, the timetable and the allocation of learners to classes.”
5.2.2 According to the Principal’s testimony, the senior staff were “in the dark” as to how to conduct this assessment and that “they did not really understand the document”. They did not ask for assistance from the Department however. They sat about their task by listing seven post level two teachers employed at the school at the time. The Departments for which they were respectively responsible as Head of Department were listed next to each teacher together with their teaching load at the time in relation to the number f periods taught.
5.2.3 It was then determined that two of the post level two teachers taught physical science and that this was unnecessary. In view of the fact that a principle had been adopted that no subject should be dropped, the only solution was to reduce the number of physical science teachers. The Principal stated that although the actual numbers of students were less in some of the practical subjects, there as only one teacher and therefore physical science was determined to have more teachers than required. He further stated that physical science had 88 pupils to 2 teachers in Grade 10, 11 and 12 and that the prescribed ratio is 1:33.
5.2.4 The Principal conceded that he had no knowledge of what the qualifications of the teachers were or whether they were qualified or experienced in any other subjects than the ones they were teaching at the time. He admitted that they did not look at the other subjects as they “did not want to”. The reason for this was that they did not want to remove any one subject from the curriculum.
5.2.5 The principal also conceded that General Science is not treated as a Department at the school. “Science” fell under the jurisdiction of the disputant as Head of the “Science” Department, but not “Biology” which had its own Head of Department or “General Science” which is taught to Grade 8 and 9 and which had not been allocated to any Head of Department. The Circuit Manager, however, stated that “Natural Science” is usually a Department with Biology, Physical Science and General Science as the subjects taught in that Department.
5.2.6 The Principal conceded that the managerial responsibilities of the Heads of Department (post level two teachers) had not been taken into account when determining their positions relative to one another. They had not examined a possible reallocation of workload with less teachers.
6 . DETERMINATION
6.1 The process followed by the senior staff in determining which post level two teacher should be declared to be in excess, as described by the Principal, was no more than a mechanical assessment of the teaching loads of the seven teachers in question.
6.2 In assessing the “curriculum obligations of the institution” as prescribed by the Resolution, the Principal was obliged to have done a thorough assessment of the needs of the school as a whole. The fact that a post level two teachers post was in question did not absolve the Principal and thereafter the Circuit Manager of their responsibility to examine the whole school at the time in terms of “the number of classes, the timetable and the allocation of learners to classes” as prescribed by the Resolution (6.2.2 (b)).
6.3 In doing this exercise, the qualifications, experience and managerial responsibilities of the teachers would have been critical in determining how the work could be redistributed with one less post level two teacher. This was not considered.
6.4 If the overall curriculum obligations of the school were taken into account, the Natural Science Department should have been viewed as a whole and the number of pupils in junior classes would have also been taken into account. This was not done.
6.5 In order to determine which of the post level two posts was in excess the Departments had to be correctly assessed relative to one another and relative to the qualifications and experience of each of the possible incumbents to the remaining six Head of Department posts. This was not taken into account.
6.6 As a result of this failure on the part of the Principal and subsequent the Circuit Manager to properly apply the provisions of clause 6.2.2(b) of the Resolution, the subject physical science was identified as the subject in excess. In view of the fact that a post level two teacher was being rationalised it was necessary to first determine the Department where an excess occurred not a subject.
6.7 Following from this incorrect assessment the senior staff then proceeded to determine which of the two physical science teachers was dispensable. The measures used in this process were unfair and inappropriate. Neither the teacher’s respective teaching loads nor their extra curricular activities could have been validly used as a measure at this stage in the process. A more important measure would have been how they could have been accommodated in the new establishment and for this purpose, all seven post level two teachers would have had to compete with one another.
6.8 It is accordingly determined that the provisions of Resolution 6 of 1998 were not fairly applied and that the rationalisation process conducted at Lentegeur Senior Secondary School was not fairly conducted.
7 . AWARD
The Department is hereby ordered to redo the rationalisation process at Lentegeur Senior Secondary School, taking into account all the conditions present at the time the first process was conducted, and strictly according to the provisions of Resolution 6 of 1998.
_______________________
ARBITRATOR
DENISE RUDOLPH
Date : 14 April 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CMA 000050 WC
APPLICANT MR S WILLENBURG
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR DENISE RUDOLPH
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT MS A JACOBS (SADTU)
RESPONDENT MR K PETERSEN (LABOUR RELATIONS)
AWARD:
The Department is hereby ordered to redo the rationalisation process at Lentegeur Senior Secondary School, taking into account all the conditions present at the time the first process was conducted, and strictly according to the provisions of Resolution 6 of 1998.
DATE OF AWARD 14 APRIL 1999
Province: Western Cape
Applicant: MR S WILLENBURG
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 14 April 1999
Arbitrator: DENISE RUDOLPH
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CMA 000050 WC
In the arbitration between:
SADTU obo MR S WILLENBURG APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
REPRESENTATIVES : WCED - Mr K Petersen
(Labour Relations)
SADTU - Ms A Jacobs
1 . INTRODUCTION
The dispute arose following the rationalisation process conducted at Lentegeur Senior Secondary School during the period November/December 1998 during which one post level two teacher had to be identified as in excess. The dispute was referred to conciliation which had not resulted in any formal agreement between the parties. In the absence of a final agreement the matter was referred to settlement week for expedited conciliation-arbitration.
2 . TERMS OF REFERENCE
The terms of reference agreed to by the parties in this matter provide that the conciliator-arbitrator has the power to decide :
“In each case, whether, in the light of information, evidence and argument received in the conciliation process, the provisions of Resolution 6 of 1998 were substantively and procedurally fairly applied and/or interpreted and/or whether the rationalisation process in terms thereof was fairly conducted.”
3 . THE ISSUES
3.1 The disputant, Mr S Willenburg, represented by SADTU, contended that the was incorrectly identified and that the process was unfair for the following reasons :
3.1.1 The views of the general staff were not taken into account.
3.1.2 The subject physical science was incorrectly identified as having an excess of post; and
3.1.3 The LIFO principle was not applied in determining which of two teachers teaching physical science should be determined to be in excess.
3.2 The Department on the other hand contended that :
3.2.1 The junior staff had given the senior staff a mandate to proceed with the process as it was a post level two post that was in question.
3.2.2 The identification of physical science as the subject to be declared in excess was correctly done in terms of an assessment of the curricular needs of the school, the number of pupils and number of teachers; and
3.2.3 The LIFO principle referred to in clause 6.2.2 () of Resolution 6 of 1998 was not applicable as the individual was identified in terms of 6.2.2 (b) i.e. the curricular needs of the school and therefore two educators were not competing for the same post. The extra curricular activities of the other teacher were taken into consideration in this regard.
4 . EVIDENCE
4.1 The Department called the Principal of the school whose evidence was largely undisputed and can be summarised as follows :
4.1.1 The requirements of Resolution 6 of 1998 to inform the staff and call a formal meeting had been compiled with.
4.1.2 At a formal meeting convened for this purpose, the staff were unable to make any suggestions or state their views. One staff member proposed that the senior staff take the responsibility for the process in order to find a possible solution. This proposal was accepted.
4.1.3 The senior staff met on 3 occasions and according to the Principal were “in the dark” about how to interpret the Resolution and were “not at all sure how to conduct the process”. The Principal conceded under cross-examination that he did not seek assistance or direction from the Circuit Manager in this regard.
4.1.4 The senior staff examined the curricular needs of the school, according to the Principal’s testimony, by looking at the number of post level two teachers in each subject, the number of pupils and the number of periods taught by each of the 7 post level two teachers.
4.1.5 On the basis of this analysis the disputant was declared to be in excess for the reason that “he was teaching fewer periods at the time than the other post level two teacher employed to teach physical science”. Under cross-examination the Principal conceded that the allocation of periods was not something that the disputant could control and that his teaching load had been reduced earlier in the year on account of the fact that he had applied for a voluntary severance package. He had later withdrawn the application but his classes had not been fully restored.
4.1.6 This proposal was conveyed to the general staff at a meeting where strong opposition (“hewige teenkanting”) was recorded.
4.1.7 Notwithstanding the opposition and in the absence of any alternative proposals by the general staff, the senior staff’s proposal was conveyed to the Circuit Manager.
4.1.8 The Circuit Manager was advised that there had been opposition to the proposal. He enquired what the extra curricular activities of the two physical science teachers were and was informed that the other teacher was actively involved in extra curricular activities and minuted the fact the teacher was “by far more involved in extra-curricular activities” (than the disputant).
4.1.9 The Principal stated that the extra curricular activities was not the basis of the staffs’ decision but was a contributing factor in the decision taken by the Circuit Manager to confirm the identification of the disputant as being in excess.
4.1.10 The fact that the disputant’s length of service was much longer than the other physical science teacher was not relevant, according to the Principal, as the selection was made on the Curriculum needs of the school under clause 6.2.2 (b) of Resolution 6 of 1998 and not under 6.2.2 (d) which refers to the use of the LIFO principle.
4.2 The evidence led by Mr F Stripp, the Circuit Manager for the school was of little value as he had been away at the time and the process had been conducted by a colleague, Mr B F Daniels. Mr Stripp confirmed that he had conducted an investigation after the dispute had been lodged. He stated that he had not had sight of any documentation which may have been used during the process as he had not requested this. He confirmed that it had been reported to him that the assessment of the curricular needs had been done by looking at the number of post level two teachers and their classes, number of pupils and allocated number of periods.
5 . EVALUATION OF THE EVIDENCE
5.1 The evidence of the Principal was undisputed and the union did not lead any witnesses to testify on behalf of the disputant. The determination is therefore made on the basis of the version as presented by the Principal.
5.2 The Principal, in his evidence, confirmed that the two contributing factors to the identification of the disputant as being in excess were firstly that he was teaching less classes than the other post level two physical science teacher, and secondly that he was less involved in extra-curricular activities. The first was the only contributory factor as far as the senior staff were concerned and the second influenced the decision of the Circuit Manager to confirm the decision of the senior staff. The fact that the disputant had many more years service than the other teacher was common cause but as not a factor taken into account at the time.
5.2.1 Clause 6.2.2 (b) of Resolution 6 of 1998 in terms of which the rationalisation process had be conducted, provides that the following, inter alia must be taken into account:
“The needs of the institution, more particularly in relation to the specific curriculum obligations of the institution, the number of classes, the timetable and the allocation of learners to classes.”
5.2.2 According to the Principal’s testimony, the senior staff were “in the dark” as to how to conduct this assessment and that “they did not really understand the document”. They did not ask for assistance from the Department however. They sat about their task by listing seven post level two teachers employed at the school at the time. The Departments for which they were respectively responsible as Head of Department were listed next to each teacher together with their teaching load at the time in relation to the number f periods taught.
5.2.3 It was then determined that two of the post level two teachers taught physical science and that this was unnecessary. In view of the fact that a principle had been adopted that no subject should be dropped, the only solution was to reduce the number of physical science teachers. The Principal stated that although the actual numbers of students were less in some of the practical subjects, there as only one teacher and therefore physical science was determined to have more teachers than required. He further stated that physical science had 88 pupils to 2 teachers in Grade 10, 11 and 12 and that the prescribed ratio is 1:33.
5.2.4 The Principal conceded that he had no knowledge of what the qualifications of the teachers were or whether they were qualified or experienced in any other subjects than the ones they were teaching at the time. He admitted that they did not look at the other subjects as they “did not want to”. The reason for this was that they did not want to remove any one subject from the curriculum.
5.2.5 The principal also conceded that General Science is not treated as a Department at the school. “Science” fell under the jurisdiction of the disputant as Head of the “Science” Department, but not “Biology” which had its own Head of Department or “General Science” which is taught to Grade 8 and 9 and which had not been allocated to any Head of Department. The Circuit Manager, however, stated that “Natural Science” is usually a Department with Biology, Physical Science and General Science as the subjects taught in that Department.
5.2.6 The Principal conceded that the managerial responsibilities of the Heads of Department (post level two teachers) had not been taken into account when determining their positions relative to one another. They had not examined a possible reallocation of workload with less teachers.
6 . DETERMINATION
6.1 The process followed by the senior staff in determining which post level two teacher should be declared to be in excess, as described by the Principal, was no more than a mechanical assessment of the teaching loads of the seven teachers in question.
6.2 In assessing the “curriculum obligations of the institution” as prescribed by the Resolution, the Principal was obliged to have done a thorough assessment of the needs of the school as a whole. The fact that a post level two teachers post was in question did not absolve the Principal and thereafter the Circuit Manager of their responsibility to examine the whole school at the time in terms of “the number of classes, the timetable and the allocation of learners to classes” as prescribed by the Resolution (6.2.2 (b)).
6.3 In doing this exercise, the qualifications, experience and managerial responsibilities of the teachers would have been critical in determining how the work could be redistributed with one less post level two teacher. This was not considered.
6.4 If the overall curriculum obligations of the school were taken into account, the Natural Science Department should have been viewed as a whole and the number of pupils in junior classes would have also been taken into account. This was not done.
6.5 In order to determine which of the post level two posts was in excess the Departments had to be correctly assessed relative to one another and relative to the qualifications and experience of each of the possible incumbents to the remaining six Head of Department posts. This was not taken into account.
6.6 As a result of this failure on the part of the Principal and subsequent the Circuit Manager to properly apply the provisions of clause 6.2.2(b) of the Resolution, the subject physical science was identified as the subject in excess. In view of the fact that a post level two teacher was being rationalised it was necessary to first determine the Department where an excess occurred not a subject.
6.7 Following from this incorrect assessment the senior staff then proceeded to determine which of the two physical science teachers was dispensable. The measures used in this process were unfair and inappropriate. Neither the teacher’s respective teaching loads nor their extra curricular activities could have been validly used as a measure at this stage in the process. A more important measure would have been how they could have been accommodated in the new establishment and for this purpose, all seven post level two teachers would have had to compete with one another.
6.8 It is accordingly determined that the provisions of Resolution 6 of 1998 were not fairly applied and that the rationalisation process conducted at Lentegeur Senior Secondary School was not fairly conducted.
7 . AWARD
The Department is hereby ordered to redo the rationalisation process at Lentegeur Senior Secondary School, taking into account all the conditions present at the time the first process was conducted, and strictly according to the provisions of Resolution 6 of 1998.
_______________________
ARBITRATOR
DENISE RUDOLPH
Date : 14 April 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CMA 000050 WC
APPLICANT MR S WILLENBURG
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR DENISE RUDOLPH
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT MS A JACOBS (SADTU)
RESPONDENT MR K PETERSEN (LABOUR RELATIONS)
AWARD:
The Department is hereby ordered to redo the rationalisation process at Lentegeur Senior Secondary School, taking into account all the conditions present at the time the first process was conducted, and strictly according to the provisions of Resolution 6 of 1998.
DATE OF AWARD 14 APRIL 1999