PSES 181 WC
Award  Date:
21 April 1999
Case Number: PSES 181 WC
Province: Western Cape
Applicant: J RIDDLES
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 21 April 1999
Arbitrator: J HAMMAN
EDUCATION LABOUR RELATIONS COUNCIL

CASE NUMBER : PSES 181 WC



In the arbitration between:

J RIDDLES APPLICANT

and

WESTERN CAPE DEPARTMENT OF EDUCATION RESPONDENT



ARBITRATOR’S AWARD


1 . INTRODUCTION


1.1 This arbitration, concerning the alleged unfair retrenchment of Ms J Riddles from her employment as a teacher at Swellendam Senior Secondary School. Mr C Presence and Ms M Sass of SADOU represented Ms Riddles.

1.2 Mr S Faker and C R Esau of the Western Cape Education Department (Human Resources) appeared on behalf of the employer.

2 . ISSUES IN DISPUTE

2.1 The union based its case on two grounds. First, that the consultation process was not exhausted when the school Principal and the District Manager identified the employee as excessive to the school, and second, that the principle of ‘last in first out” (LIFO) should have been applied. If it had, a different teacher would have been declared excessive.

2.2 The employer, on the other hand, argued that the consultation process was complete, and that LIFO did not arise since the retained teacher was better equipped to meet the curriculum needs of the school. The decision to declare her in excess of the needs of the school was therefore procedurally and substantively fair.

3 . ANALYSIS OF THE FACTS

3.1 According to Mr Presence, the staff of the school were approached by the principal with the guidelines for staff reduction. This meeting took place on 27 November. He attempted to consult with them, but the staff felt that they needed more information on the specific curriculum needs of the school. This they proposed that the school psychologist be requested to address them on the issue.

3.2 Unfortunately the school psychologist could not attend a meeting with the staff before the deadline for submissions to the Circuit Manager. The Principal and Circuit Manager thereupon determined which post was in excess. They determined that one of the accountancy teachers had to be declared in excess.

3.3 The only dispute was whether submissions were made and whether the principal considered these. According to the principal, Mr Du Preez, several suggestions were made during the consultation process and incorporated into his report to the District Manager. Although he admits that the staff asked for more information about the curriculum, he denies that this would have impacted on the eventual outcome.

3.4 The union alleges that, when a person had to be identified, the principal and Circuit Manager erred in not considering LIFO. Ms Riddles had 10 years experience teaching accountancy, whereas the person who was retained only has eight years of service. The employer admitted that LIFO was not taken into account. However, the principal and District Manager based their decision on previous experience - Ms Riddles had previously only taught up to Standard 9 level, while the incumbent had one year of Standard 10 experience. From the evidence it appears that the lower secondary classes were allocated to her, while the other candidate (a Mr Baadjies), taught some of the higher grades. The matrics were mostly taught by the current vice-principal. However, his post is not effected by the need for right-sizing.

4 . APPLICATION OF THE RESOLUTION ON THE FACTS

4.1 The process and criteria for declaring posts in excess is set out in Resolution No 6 of 1998. Section 6.2 of the Resolution elaborates on this by assigning a role for the educator staff of the institution. The Principal must convene a formal meeting of the staff to consult the staff on their views, and thereafter the Principal and District Manager must identify the educators in excess, taking into account:

4.1.1 The views of the educator staff expressed at the meeting, and the needs of the institution.

4.2 The Resolution makes it explicit that there is no necessary link between a post declared in excess and an educator declared in excess. Thus various persons may have to compete for the same post. The Resolution goes further and determines that, when a decision still has to be taken regarding two or more educators competing for the same post, LIFO shall be applied.

4.3 The first question that arises is therefore whether the meeting held on 27 November constituted sufficient consultation? The Resolution only requires a formal staff meeting and consultation. Consultation does not necessarily mean agreement, not even among staff members. It could also mean that staff members can delay the process by refusing to express a view.

4.4 What happened here is unfortunate: because staff members felt that they could not express an informed opinion and wanted further information, they could not express their views within the time-frame provided. I am not convinced that this is sufficient reason to render the consultation process invalid. I therefore accept that evidence of the Principal that he did take those views that were expressed into account and that their eventual decision was based on that input.

4.5 The second aspect of the dispute produces slightly more interpretation problems. It requires the Principal and District Manager to take into account (apart from the views of the educator staff), the ‘needs of the institution, more particularly in relation to the specific curriculum obligations of the institution, the number of classes, the time-table and allocation of learners to classes’, while bearing in mind that ‘there is not necessarily a direct relation between the post identified in excess and an educator who will be declared in excess’.

4.6 In this case the post identified was that of an accountancy teacher. The Principal and District Manager decided to retain the services of Mr Baadjies because he had taught matric pupils before. This they justified under the criterion of ‘the specific curriculum obligations of the institution,’ despite the fact that both teachers had exactly the same qualifications.


4.7 I cannot agree that the term can be construed to include experience at a specific level, when it is inherent in the appointment that the teacher must have the skills and training to teach the subject at all levels in the school. It was not disputed that Ms Riddles had the qualifications or the skills, and but for the fact that the principal unilaterally allocated the levels to the two teachers, she would also have had the appropriate experience.

4.8 The indicators or criteria used in section 6.2.2(b) are objective criteria. Circular Number 0146/98 makes it clear that ‘the needs of the institution is determined when the time-table is compiled i.e. the needs of the institution are determined by the total number of educators available as per the new establishment.’

4.9 This is also acknowledged by the following sub-section, which reminds decision-makers that more than one post may have the same duties attached to it. In this case, two persons with the same qualifications competed for the same post, with exactly the same duties. It therefore follows that LIFO should come into consideration and the persons responsible for identifying the person in excess should have taken it into account.

5 . AWARD
It is hereby determined that the Western Cape Department of Education erred when it decided not to take LIFO into account when identifying the person to be declared in excess in respect of the post of accountancy teacher at Swellendam Senior Secondary School, and Ms Riddles was therefore prejudiced by this error. The process should be repeated.

JOHANN HAMMAN
ARBITRATOR
DATED: 21 APRIL 1999.





EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 181 WC
APPLICANT J RIDDLES
RESPONDENT DEPARTMENT OF EDUCATION
NATURE RIGHT SIZING
ARBITRATOR J HAMMAN
DATE OF ARBITRATION 27 NOVEMBER 1998
VENUE CAPE TOWN
REPRESENTATION:
APPLICANT MR C PRESENCE & MS M SASS
RESPONDENT MR FAKER & C R ESAU
AWARD
It is hereby determined that the Western Cape Department of Education erred when it decided not to take LIFO into account when identifying the person to be declared in excess in respect of the post of accountancy teacher at Swellendam Senior Secondary School, and Ms Riddles was therefore prejudiced by this error. The process should be repeated.

DATE OF AWARD 21 APRIL 1999
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