Case Number: PSES CMA000058 WC
Province: Western Cape
Applicant: MR I D J FILLIS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 22 April 1999
Arbitrator: ADELE WILDSCHUT
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CMA 000058 WC
In the arbitration between:
I D J FILLIS (represented by SADTU) APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . INTRODUCTION
1.1 The dispute arose following the rationalisation process conducted at the Mountview Senior Secondary School during the period November 1998 and February 1999 during which 5 educators (1 PL2 and 4 PL1s) had to be declared in excess.
1.2 The matter was referred to settlement week for expedited conciliation-arbitration. The parties were unable to reach agreement during the conciliation phase and the matter continued into arbitration.
2 . TERMS OF REFERENCE
2.1 The terms of reference agreed to by the parties in this matter provide that the conciliator-arbitrator has the power to decide “whether the provisions of resolution 6 / 98 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. I D J Fillis, represented by SADTU, contended that he had been incorrectly identified in excess and that the rationalisation process was unfair for the following reasons:
• The curriculum needs of the school were not determined.
• The curriculum needs of the school were incorrectly determined as he information used was incorrect.
• A need assessment was not done.
• The principal made the decisions without consulting with the staff.
• The circuit manager only acted on information given by the principal.
3.2 The department on the other hand contended that:
• The curriculum needs of the school were determined.
• The information used in t=determining the curriculum needs was correct.
• That a needs assessment was done.
• Consultation with staff did take place.
4 . EVIDENCE
4.1 After the presentation of argument and evidence the following facts emerged as undisputed:
• According to the notification issued by the Circuit Manager on 18 November 1998, the staff establishment of the school indicated that 5 educators hat to be declared in excess (i.e 1 PL2 and 4 PL1).
• The principal, Mr A. Benjamin, was called to an area meeting on 23 November 1998 at which he received copies of resolution 6/98 and other documentation relevant to the right-sizing process.
• On the same day, i.e 23 November 1998, a staff meeting was held at the school.
• Two subsequent staff meetings were held viz on 26 November 1998 and 2 December 1998. Copies of the minutes of the three staff meetings were made available to the parties and the arbitrator.
• Furthermore, subject meetings were held on 30 November 1998 and 1 December 1998.
• On 2 February 1999, a right-sizing meeting was held by the Circuit Manager, attended by the principal, Mr Benjamin, the site observer, Mr Absolom and Mr Witbooi, the Union observer.
• At this meeting Mr Witbooi raised concerns about the needs analysis and the viability of subjects. He objected to the right-sizing being done and requested an extension to enable the process to be re-done. This request was turned down, and the meeting continued.
• Mr. Fillis, the disputant was declared in excess on PL2 along with four other educators on PL1.
5 . ARGUMENT
5.1 Mr McKenzie for the Union contended that the rationalisation process did not comply with resolution 6/98 paragraph 5.4 in that the staff were not informed and the information was not made available to the staff as envisaged by the resolution. Furthermore, the curriculum needs of the school were not determined and a needs assessment was not done. Persons rather than posts were declared in excess contrary to the provisions of the resolution.
5.2 Mr Clive Witbooi, the union observer at the right-sizing meeting testified that the documentation presented to the Circuit Manager did not contain a time-table, nor a document showing the allocation of learners to classes nor one indicating the curricular needs of the school. He further testified that persons rather than posts were identified.
5.3 Mr Absolom, the site representative, was also present at the right-sizing meeting. He testified that at the meeting only two PL2 teachers were considered fore declaration in excess, the disputant and one other teacher. Under cross-examination he testified that in the consideration of persons in excess on PL2 other subjects were taken into account, but stressed that only the profiles of the two people being considered were looked at. The profiles of the three other LP2 people were not available and not considered.
5.4 The department was satisfied that the rationalisation process had complied with resolution 6/98 and in particular the provisions of para 5.4 were met in that 3 meetings were held with staff. At the meeting of 23 November 1998 staff were given copies of the resolution. This was discussed at a subsequent meeting held on 26 November 1998. Additional information was pinned on the notice board in the staff room. The department argued that these meetings were called specifically to deal with the process of rationalisation.
5.5 Mr Benjamin, the principal, testified that the curriculum needs of the school were determined. This was done by the teachers in their subject groups during meetings held on 30 November 1998 and 1 December 1998. At these meetings, subject heads were asked to complete a form devised by Mr Benjamin. Information requested included the number of learners and the number of weighted learners according to the subjects. In addition, details of educators’ subject and teaching experience were requested. Mr Benjamin then compiled a grid or table collating all the information gathered in this way. A copy of the grid was posted on the notice board in the staff room and was presented to the Circuit Manager at the right-sizing meeting.
6 . DISCUSSION OF EVIDENCE
6.1 In terms of the evidence presented and arguments put forward by the parties I must consider whether the procedure was fairly conducted.
• The nature of the needs assessment and the accuracy of the information
Resolution 6/98 para 6.2.2(b) specifies that the needs of the institution must be taken into account as specified, it is silent on the method for gathering this information. After discussions at a staff meeting on this issue, the principal devised a form in order to collect information from the subject teams at the school. This information was collated into a grid. The union questioned how the information in the grid was used to arrive at the declaration of the disputant in excess.
The department contended that the information contained in the grid compiled by the principal sufficiently indicated the curriculum needs per subject and the number of posts required to deliver on the needs of the school.
When examining the grid relied upon by the Circuit Manager, one finds that it contains 15 columns each representing a subject taught at the school, a 16th column is indicated as a remarks column. There are 6 horizontal lines marked in the following order “W.L.” (Weighted learners); “/33"; “/6"; “post required”; “actual post”; and finally “surplus post”. The information as contained in the grid does not throw any light on the distribution of the workload among the educators. As each subject is listed separately, an additional step is required to allocate groups of subjects to teachers. If one merely goes by the information on the grid, 9 surplus posts are identified, while 4 PL1 and 1 PL2 posts were in question according to the staff establishment. Furthermore, by only collecting the information subject by subject, it was then not possible to group subjects and to allocation of teach loads in terms of the available teaching resources.
The department argued that it was not possible to compile a time-bale before the right-sizing had taken place. However, para 6.2.2(b) is quite specific about the requirements “more particularly in relation to the specific curriculum obligations of the institution, the number of classes, the time-table and the allocation of learners to classes”. The compilation of a provisional time-table would have allowed an examination of the needs of the school as a whole, the workloads and responsibilities of all the educators would have been taken into consideration at that point.
• The right-sizing meeting
At the right-sizing meeting, Mr Benjamin, the principal testified that the information in the grid was used in making the determination. The union led testimony that in considering the PL2 posts all the teachers in those posts were not considered and the profiles of all the PL2's were not available. In determining which PL2 post should be declared in excess, the needs of the school as a whole as indicated above would have provided the guidance to do so. Issues such ad the experience and qualifications fo the respective educators, the total number of learners expected and the additional management responsibilities of PL2's should have been taken into account. No evidence was led that this was indeed done. Furthermore, the profiles of all the PL2 educators should have been examined when identifying which person should be declared in excess.
With regard to the disputant therefore, two essential steps in the process were missing i.e the assessment of which Pl2 pos should be abolished and then the assessment of all the educators on PL2 to determine which person was to be declared in excess.
7 . DETERMINATION
7.1 The compilation of the grid by the principal based on the information collected by the subject heads was inadequate to constitute a thorough needs assessment as envisaged by the resolution 6/98 para 6.2.2(b). The compilation of a time-table would have allowed for the examination of the needs of the school as a whole.
7.2 No assessment of the PL2 posts in the context of the needs of the school as a whole was done. By focussing only on the needs per subject, the grouping of subjects into departments or the possible re-arrangement of departments was not done.
7.3 All five PL2 teachers should have competed against each other. Criteria to make the decision would depend on the needs assessment, their respective qualifications, and experience. In this regard, the provisions of para 6.2.2(d) could also have been applied.
7.4 I therefore determine that the provisions of resolution 6/98 were not fairly applied and that the rationalisation process was not fairly conducted at the Mountview Senior Secondary School.
8 . AWARD
8.1 The department is therefore ordered to redo the rationalisation process at the Mountview Senior Secondary School according to the provisions of resolution 6/98. In re-doing the process, the conditions prevailing at the time the process was conducted are to be taken into account.
22 APRIL 1999.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CMA000058 WC
APPLICANT MR I D J FILLIS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE RIGHT SIZING / EXCESS PERSONNEL
ARBITRATOR ADELE WILDSCHUT
DATE OF ARBITRATION
APPLICANT MR G McKENZIE
RESPONDENT MR K PETERSEN AND MR E HASSEN
1 I therefore determine that the provisions of resolution 6/98 were not fairly applied and that the rationalisation process was not fairly conducted at the Mountview Senior Secondary School.
2 The department is therefore ordered to redo the rationalisation process at the Mountview Senior Secondary School according to the provisions of resolution 6/98. In re-doing the process, the conditions prevailing at the time the process was conducted are to be taken into account.
DATE OF AWARD 22 APRIL 1999