Case Number: PSES CAR 000022 WC
Province: Western Cape
Applicant: M DE KLERK
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 23 April 1999
Arbitrator: EVANCE KALULA
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 000022 WC
In the arbitration between:
M DE KLERK APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . INTRODUCTION
On 12 March 1999 I notified the parties of my award in this dispute. I found that the grievant’s claim, which sought compensation for three months loss of earnings was well-founded. I reserved review of the issues in the dispute and reasons for my finding. The following therefore are the full review of the issues and reasons for my finding.
2 . REVIEW OF FACS AND ISSUES
2.1 It seems to be common cause that the grievant, M de Klerk, had applied for a post at one of the schools under the Department’s jurisdiction, which was advertised in Die Burger in May 1998. On 20 June 1998 the grievant was interviewed for the post in accordance with accepted procedures and formalities. On the same day the principal of the school telephonically informed her that she had been successful. The school then went into recess.
2.2 Two days before the start of the new term, on 13 July, the grievant was shown around the school to familiarise her with what would be her new work environment. No indication was given at that point that the post would not be available to her. The day before term time, the principal telephoned the grievant to inform her that the post had been frozen. On 15 July, the grievant spoke to the circuit inspector who advised her to wait for a final decision in the matter. The grievant then tried to get in touch with the principal on 30 July, there was no answer to her telephone. Finally the principal informed her that although she had been nominated for the post she had not been appointed as the post in question had been frozen.
2.3 At the hearing the grievant contended that her understanding all along was that she had the post, that the procedures involving the Department were a mere formality and that she knew of cases where formal letters of appointment only materialised long after teachers had started working. On account of the expectation for the post at the school she had not applied for any other posts. As a result she was out of gainful employment for a period of three months. Her claim was therefore for loss of earnings for the period.
2.4 In response, the Department contended that the grievant, had no locus standi, she was not an employee of the Department. In its view the grievant had no case. She could not claim to have been unfairly dismissed under the Labour Relations Act 1995 and in terms of the Employment of Educators Act 1994, as amended, she had not been appointed. The Department pointed out that due to financial constraints all schools under its jurisdiction had been instructed, in a letter of 14 July 1998 to all area mangers, that all appointments were subject to its approval. Where such procedures as had been specified were disregarded, the Governing Bodies of the culprit schools would be responsible for the remuneration of any staff taken on. The grievant should have known that any offer of employment was subject to the Department’s prior approval and confirmation of the existence of a post. She therefore had no legitimate expectation of a post and was not entitled to compensation for loss of earnings as claimed.
2.5 The letter in question, that of 14 July 1998 from the Department to the area managers, setting out the procedures relating to appointments, was said to have been received by the principal in this case on 18 July 1998.
3 . DISCUSSION
3.1 In my view the pertinent issues in this dispute relate to :
3.1.1 Whether the process through which the grievant went resulted into any legitimate offer of employment, alternatively whether any legitimate expectation was created;
3.1.2 In the event that any employment relationship or legitimate expectation had been created, whether the Department was liable to make good any such claim arising out of such a situation.
3.2 The Department in its argument referred to the legislation relating to the employment of educators and the Labour Relations Act, 1995. Three pieces of legislation which apply to the employment of educators in the public school system seem to be relative to this dispute. These are :
3.2.1 The South African Schools Act 84/1996 including Schedule 2 which amends Educators Employment Act 1994 which came in force on 15 November 1996.
3.2.2 The Employment of Educators Act 76/1998 which came into force on 2 October 1998 which repeals the Educators Employment Act 1994.
3.2.3 The Schedule to the Employment of Educators Act released by the Minister of Education in relation to the Terms of Conditions of Employment of Educators, which came into force on 18 February 1999.
3.3 I have reviewed the relevant provisions of the legislation. As the grievant’s claim of employment was after 15 November 1996, the South African Schools Act of 1996, including Schedule 2 is applicable. In my review of the evidence presented to me, I find no difficulty under this legislation. The procedures stipulated seem to have been followed.
3.4 The Employment of Educators Act 1998 affects persons employed after 2 October 1998. The grievant’s claim of employment is clearly prior to the above date. It therefore seems to me the procedures thereunder would not necessarily apply. Even if the procedures were applicable, the only point of contention would be whether the freezing of the post in question excluded the grievant’s claim, other aspects of the procedures having been followed.
3.5 The Schedule to the Employment of Educators Act came into force on 18 February 1999. The Schedule stipulates stringent procedures, including the need for authorisation of the advertisement of vacant posts. Is the schedule to be applied retrospectively? In my view it is not to be so applied.
3.6 As for the Labour Relations Act 1995, it is clear from Schedule 7, part B, item 2 that for the purposes of sub-item 1(a), ‘employee’ includes applicant for employment. It therefore seems to me that the grievant has locus standi to claim against the Department as the employer.
3.7 The main question then is whether in fact the grievant has got any valid claims against the Department in the face of explicit Departmental procedures requiring approval of appointments. Did the grievant have any legitimate expectation of employment at the school?
3.8 She had gone through all the motions in good faith. Until when she was told the post was not available, she had no reason to suppose, other than for purposes of routine formality, that it was subject to the stringent procedures of approval that the Department had instituted. There was clearly implied authority on the part of the school authorities on which the grievant as third party could rely. Whether the Governing Body in disregard to Departmental regulation is liable for the claim is a matter of internal responsibility to be dealt with as between the Department and the School.
3.9 I choose not to address the issue of receipt of departmental instructions by the school principal concerning the hearing procedure sent out on 14 July 1998. The principal was absent from the hearing and the matter was therefore not probed. In any event, in the light of the above discussion that was a matter between the Department and the School. It would not affect the grievant’s rights in this matter.
4 . MY FINDING
I therefore confirm my finding which was earlier notified to the parties, to the effect that the grievant’s claim is well-founded. The grievant is entitled to the equivalent of three months pay, for loss of earnings, being the period she was out of gainful employment.
Date : 23 April 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CAR 000022 WC
APPLICANT M DE KLERK
RESPONDENT DEPARTMENT OF EDUCATION
NATURE SALARY (LOSS OF EARNINGS)
ARBITRATOR EVANCE KALULA
DATE OF ARBITRATION 12 MARCH 1999
I therefore confirm my finding which was earlier notified to the parties, to the effect that the grievant’s claim is well-founded. The grievant is entitled to the equivalent of three months pay, for loss of earnings, being the period she was out of gainful employment
DATE OF AWARD 23 APRIL 1999