Case Number: PSES DE HEAD OFFICE
Province: Eastern Cape
Applicant: G STOBIE
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 26 April 1999
Arbitrator: PROFESSOR K GOVENDER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES DE HEAD OFFICE
In the arbitration between:
G STOBIE APPLICANT
THE DEPARTMENT OF EDUCATION AND CULTURE PROMOTIONS DIRECTORATE RESPONDENT
TERMS OF REFERENCE
1.1 It was agreed that my terms of reference would be in terms of resolution 7 of 1997 Clause 2.1 states:
“The terms of reference of the arbitrator shall be to arbitrate any dispute referred to him/her, and to award the remedy which he/she considers fair and/or appropriate in order to settle the dispute.”
1.2 The Union was represented by Mr Pierce and the Department by Mr Sunil Mahabeer. I am grateful to both representatives for the detailed arguments made in this matter.
2.1 On 17-9-1997, the Department advertised school based promotions. It stated that the closing date for the applications would be 21-11-1997. It also listed inter alia, the procedures to be followed when applying, the minimum qualification and service requirements, the procedure and criteria to be adopted in short listing and selecting the successful candidates and a list of the vacancies. Relevant for our purposes, was 2.3 (the original rule of eligibility) :
“Those educators who at their own request, have been retired prematurely on pension, on medical grounds or Voluntary Severance package are precluded from applying for posts advertised in this bulletin.”
2.2 There were no other express exclusions. It is common cause that the Grievant did not fall within this restriction and was thus entitled to apply for the positions stated in the advertisement.
2.3 In reliance on this advertisement, the Grievant applied for positions, was interviewed in respect of three schools and from the evidence, may have been the preferred candidate at least at one and possibly at two schools. The Grievant states that at Alexandra Boys High School, he was the only candidate that was a non-serving educator in the department. A decision had been made by the governing body which had to be reviewed in a emergency meeting after a second circular from the Department, restricting the applicants to serving educators. He concluded from this that his successful application was being rescinded in favour of another candidate because of the Departmental circular.
2.4 On 10-2-1998, the Director of Promotions, Mr MM Moodley, dispatched a circular to the Regional Chief Directors. In terms of clause 1.1 of this circular, only serving educators were eligible for transfer/promotion to post level 2 and higher posts level vacancies in education. In effect this circular materially altered the disqualification clause contained in the original circular issued on 17-9-1997. The Grievant was an educator, employed by a non-governmental organisation, and as a consequence of the second circular was rendered ineligible for the posts advertised.
3.1 Did the Department commit an unfair labour practice by changing the rules of eligibility after the process was started in terms of the previous rules? The Grievant argued that it did and that I was requested to direct the Department to appoint him to a post equivalent in rank to that for which he had been short listed at Alexandra boys.
4.1 The evidence, at best for the Grievant, was that he was the preferred candidate of the governing body of Alexandra Boys High School. It was clear that the power to make a formal offer of employment as an educator nature vested in the Secretary of Education of the province. The Department detailed steps which have to be followed after the decision of the governing body and before the final decision of the secretary. The Grievant was aware that a binding offer of employment was made by or on the Department to the Grievant.
4.2 The Department acknowledged changing the rules and offered some justification for disqualifying all educators not employed as educators in state schools. The new rule would allow internal applicants to have opportunities for promotions and thus promote moral. Further the austerity measures and right sizing may result in educators having to leave the Department. In this context, it would be incongruent to invite educators from outside the Department to join the employ of the Department. The new rules are rationally related to legitimate state objectives. No satisfactory explanation was offered for the adoption of the criteria in the circular of 17-3-1997 which contained the original rule regarding eligibility. The Union pointed out that prior to this circular being issued the Department had completed its voluntary severance package programme and approximately 2000 educators left the Department. The action of the Department in inviting teachers from the outside to apply for posts after it had engaged in a process to reduce its numbers is perplexing and difficult to understand.
4.3 In short, the Department rescinded a rule of questionable rationality in favour of a rational rule and disqualified the Grievant in the process. It is in my opinion, that the Department has the right to change its policies and correct incorrect rules. However, no satisfactory explanations was offered for the initial circular of 17-3-1997. It appears, that the criteria for selection in this circular was determined without the Department considering all relevant factors.
4.4 As no formal offers was made to the Grievant, no contract existed between the Department and him. He thus has no claim in contract. A further issue is whether the equitable principal of estoppel by representation is applicable in this instance. In terms of this principle:
“...a person is precluded, is stopped from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice. (Baxter Administrative Law (Juta 1994) 400.)
4.5 There appeared to be no real substantive prejudice to the Grievant in this case. No direct representation of a job offer was made. In the course of the hearing, the Grievant testified that he had left his employment in anticipation of receiving a post in the Department. He acknowledged that he did not receive an offer either from the governing body or from any person acting on behalf of the Department. He stated that he felt satisfied that he had performed well in the interview and handed in his resignation on that basis. The premature action on the part of the Grievant is not reasonable. My finding is that the Grievant had not handed in his resignation on the basis of anything said or done on behalf of the Department. He chose to resign for his own reasons. The principle of estoppel is thus not applicable.
4.6 After the Department decided on the new rule, the matter was put before the Promotion Sub-Committee of the Chamber of the Kwazulu-Natal Department of Education and Culture which comprises representatives of the Department and unions representing educators. The revised rule was accepted at a meeting of this body on 7-5-1998.
4.7 The new rule regarding eligibility then formed the basis for selecting candidates for promotion. The Grievant argues that the Department had created a legitimate expectation, having advertised the old rule, to abide by them. A government department is legally entitled to adopt a chance of policy if it deems this chance to be prudent. If the chance in policy unjustifiably infringes the rights of others, then the government must compensate individuals for such infringement. In my opinion, the government department must act fairly when changing rules. Fairness, in this context, would impose the following obligations on the Department:
• It had to consult with the representative unions
• It had to treat similarly situated educators equally.
• It had to provide a rational explanation for the chance to individuals in the position of the Grievant.
• It must recompense people who have incurred loss or damage on the basis of relying on the old rule.
4.8 The Department consulted with the unions after the decision was made and I was informed that the unions supported the new rule of eligibility. Preferably and normally, these consultations must take place before the decision is taken. However, I accept that on the facts of this case, that the Department had to act quickly as some schools were short listing and interviewing on the old criteria. All persons in the position of the Grievant were disqualified. Thus, no non-serving educators were eligible for appointment. As indicated earlier there was a rational explanation for the adoption of the new rule and the Grievant was informed of the reason for adopting the new rule. The adoption of the new rule was thus not procedurally unfair.
4.9 As no satisfactory explanation was offered to the adoption of the original rule of eligibility, I must conclude that it was promulgated in error or negligently. This error resulted in inconvenience and loss to the Grievant. The new rule of eligibility rendered void all hi efforts. The Grievant travelled to interviews and may have taken a day off work. He has every right to feel aggrieved. In the circumstances, I am of the opinion that at the very least, he must be compensated for the actual expenses incurred in attending the interviews. He must be compensated for travelling from his home to the school for the interviews and if he submits proof that he took leave for a day, then he must be compensated for that. His travelling expenses should be determined in accordance with the tariff used by the provincial government to compensate people using their vehicles for government work. If the parties cannot reach agreement on the amount, then that issue can be referred o me.
CONCLUSION AND AWARD
5.1 The grievance is dismissed.
5.2 The Department is ordered to reimburse the Grievant for all actual expenses incurred in attending the interviews.
Dated at Durban on 26-4-1999
PROFESSOR K GOVENDER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES DE HEAD OFFICE
APPLICANT G STOBIE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPLICATION (FOR POST)
ARBITRATOR PROFESSOR K GOVENDER
DATE OF ARBITRATION
APPLICANT MR PIERCE
RESPONDENT MR SUNIL MAHABEER
1 The grievance is dismissed.
2 The Department is ordered to reimburse the Grievant for all actual expenses incurred in attending the interviews.
DATE OF AWARD 26 APRIL 1999