Case Number: PSES 16/2/6E1222 WC
Province: Western Cape
Applicant: MR N NADUS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 19 April 1999
Arbitrator: J KRIGE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: 16/2/6E1222
In the arbitration between:
MR N NADUS APPLICANT
DEPARTMENT OF EDUCATION RESPONDENT
1 . DETAILS OF THE HEARING AND REPRESENTATIONS:
1.1 This conciliation/arbitration was conducted at the Worcester Teachers’ Centre on Monday, 19 April 1999. Mr Neville Jones represented the disputant, Mr Nicodemus Nadus. Mr Kenny Petersen appeared on the behalf of the Western Cape Education Department.
2 . THE ISSUES:
This was a right sizing dispute and was a repeat of an earlier process. I attempted to conciliate the dispute but failed and was accordingly requested by the parties to arbitrate.
3 . SURVEY OF THE EVIDENCE AND ARGUMENT:
3.1 Mr Jones argued that the disputant had been unfairly and unjustifiably treated. It was argued that there had been contravention of Circular 146/98 in particular paragraph 12 in that stages 4 and 5 being the right sizing of the institution and the determination of the excess educators and the compilation of a profile of each educator which was the responsibility of the Circuit Manager and the Principal that the heads of a department had been present throughout. Furthermore, Mr Balley, the Circuit Manager, had stated that “geen vakke kan afgeskaf of uigefaseer word nie.” It was also pointed out that only one person remained behind in Geography.
3.2 It was argued that one had to look at Resolution 6 of 1998 and in particular the numbers an phases and if this was done then the disputant would not have been in excess.
3.3 On the behalf of the Department it was argued that this was a repetition of an earlier right sizing process where the union had not been present and that now correctly th union had sat in to observe the process. It was further argued that the statement that “geen vakke kan afgeskaf of uitgefaseer word nie” did not amount to a misdirection because the curriculum had to stay the same as in 1998 and that according to the needs of the institution that had to be so and if one looked at the numbers for 1998, then it appeared that only one teacher was necessary in Geography.
3.4 It was furthermore argued by the union that the disputant had been discriminated against, because only people who were not originally from Saron were declared in excess and that the process had been specifically drawn in favour of those who were original residents of Saron.
4 . EVALUATION OF THE EVIDENCE AND ARGUMENT:
4.1 That the HODs had sat in to observe the process would not amount to a misdirection unless some argument had been put forward that they had participated and influenced the process. There was no argument that the Circuit Manager, nor the Principal had taken the decision together.
4.2 It was furthermore pointed out that Mr Dan Kotze who was an “inboorling” and the present mayor had also been declared in excess. Consequently it could not be said that it was decided beforehand only to excluded outsiders to the Saron area.
4.3 It was furthermore argued that the provisions of Resolution 6 of 1998, in particular paragraphs 6.2.1 and 6.2.2 sub-section (a) to (d) had been complied with and that the process had been done correctly.
4.4 It seems to me that no real misdirection had occurred of one looked at the provisions of Resolution 6 of 1998. For me to order the process to be repeated I would have to be convinced that serious material misdirections had occurred. However, none were pointed out.
5 . AWARD
In the premises I am not convinced that I should exercise my discretion to order that the matter be repeated.
DATED: 19 APRIL 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 16/2/6E1222 WC
APPLICANT MR N NADUS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE RIGHT SIZING
ARBITRATOR J KRIGE
DATE OF ARBITRATION 19 APRIL 1999
APPLICANT MR NEVILLE JONES
RESPONDENT MR KENNY PETERSEN
1 In the premises I am not convinced that I should exercise my discretion to order that the matter be repeated.
DATE OF AWARD 19 APRIL 1999