Case Number: PSES CAR 000036
Province: Eastern Cape
Applicant: MS KUTWANA
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 29 April 1999
Arbitrator: L J KRIGE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR000036 WC
In the arbitration between:
MS KUTWANA APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . DETAILS OF HEARING AND REPRESENTATION
1.1 This arbitration was conducted at Worcester offices of the Western Cape Education Department on 13 April 1999.
1.2 Mr Nohesi of the Cape African Teachers’ Union (CATU) appeared for Ms Kutwana and Mr I Matthews assisted by Mr M S Fakier appeared for the Education Department.
2 . THE ISSUES
2.1 The main issue is whether the disputant Ms Kutwana was entitled to be appointed permanently with the Education Department. She had been previously employed as a temporary teacher in the place of Ms Thamage who had gone off on study leave of Good Hope College in an upgrading programme.
2.2 A further issue was whether the Department’s decision not to pay Ms Kutwana for the 1998 academic year amounted to a dismissal.
3 . SUMMARY OF THE EVIDENCE
3.1 Ms Kutwana, who testified, at the hearing has a junior primary diploma from the Good Hope College and started teaching at the P J B Cona Primary School in Worcester in 1995. She taught there until the end of 1997. During 1995/1996 she was employed as a temporary teacher in the place of Ms Thamage who was on study leave at the Good Hope College. Ms Thamage failed at the end of 1995. It was stated that the Department’s case was that Ms Thamage was not on study leave but was on extended vacation leave to study during 1996.
3.2 At the beginning of 1998, Ms Kutwana, testified a letter had been received with the names of the people that were on the protected list. This was addressed to the area manager in Worcester. Her name was not on the list and the implication was that she did not have a post. She stated that she taught from January 1998 at the P J B Cona Primary School until the end of April 1998. She visited the circuit office with her union and was advised to request a nomination form from the principal who was asked to sign. The principal did not sign and instead she was informed that the principal would not recommend her for an appointment that year. The disputant stated she continued teaching until April when she received a fax from the circuit manager, Mr Augustyn that she did not qualify because she was not on the protected list. She then stopped working at the end of April 1998.
3.3 She conceded under cross-examination that she knew that Ms Thamage was permanent and that she was employed in a substitute post. She knew that Ms Thamage was on study leave in 1995 but denied that she knew that she was on study leave in 1996. Upon being asked why she felt she was protected in terms of Resolution 3 of 1996 the disputant replied it was because Ms Thamage was not at school in 1996. She said that Ms Thamage instead of being at college in 1996 in fact was working for another company M I B Tholwana.
3.4 Ms M F Matross testified and said that she knew Ms Thamage and found out that she was working for M I B Tholwana and was not studying in 1996.
3.5 Ms P Bushwana also testified at the arbitration and said that she was in the same class as Ms Thamage at the Good Hope College and knew that she was not there in 1996. This was furthermore confirmed by another witness, Ms M N Cekiso.
3.6 Ms Boniswa August, the principal of the P J B Cona Primary School in Worcester testified for the Department. She said that Ms Thamage had gone off on study leave in 1995 and when she was informed that Ms Thamage may not be studying in 1996 as she was supposed to have been she made enquiries in approximately July 1996 and was informed by the Registrar of the Good Hope College that she was in fact still a student. She could not recommend the disputant as they were in excess and she did not allocate any class to her because she was not on the protected list of educators. Ms August stated that the disputant did not teach between January and April 1998. She was at the school because CATU had said that she should be there to help out. It was put to her that there was no such a thing as vacation leave in place of study leave. She also conceded that at the end of 1996 when Mr Thamage had taken the voluntary severance package she recommended the disputant for permanent appointment but this was not accepted.
4 . ARGUMENT AND ANALYSIS OF THE EVIDENCE
4.1 The union argued that Ms Thamage did not go on study leave in 1996. She used the study leave as extended in terms of the form dated 8 December 1995 (exhibit “F”) for private purposes. Ms Thamage had acted unfairly by maintaining a post at the P J B Primary School while working for M I B Tholwana. Had she resigned there at the end of 1995, the post in which the disputant was employed as a substitute would have become substantively vacant. The disputant consequently fell within the category of substitute educators who in terms of Resolution 3 of 1996 para 1.9(b)(ii), (iii) and (iv) should be considered for permanent employment because her service were used in such a way that she had been denied employment on a permanent basis.
4.2 It was further argued that the submission by the Department that Ms Thamage was on vacation leave for study purposes should be dismissed as there was no evidence that supported its claim. The only evidence available was that study leave was approved for 1996 not vacation leave. The approval of study leave for a person who failed their courses had never been done by the Department hence it was submitted that she was on vacation leave.
4.3 It was further argued that the Department’s failure to provide mid and end year results as per the letter from the union dated 20 May 1998 is a true testimony that Ms Thamage was not studying in 1996. This is further strengthened by Ms Bushwana who knew Ms Thamage as a friend and as a student at the Good Hope College of Education as well as Ms Cikeso who was doing her second year at the same college in 1996.
4.4 In a nutshell the union requested that the award be to the effect that Ms Kutwana be permanently employed by the P J B Cona Primary and that she be remunerated for January up to September 1998. This was the period during which Ms Kutwana was not working. From October 1998 to date Ms Kutwana was working in a temporary capacity as a temporary teacher in Hermanus.
4.5 The Department argued that it was common cause that the disputant was not in a substantive post in 1995 to 1996. Subsequently she was not a protected teacher as specified in paragraph 1.9(b)(ii) of resolution 3 of 1998. It was pointed out that both the disputant and Ms Matross conceded that the disputant was not in a substantive post. It was submitted that whatever happened with Ms Thamage was not relevant. It was for the Department to decide to whom it wanted to grant leave or study leave and that for the union to try to dictate to the Department what kind of leave it could grant to an educator was unprecedented and did not concern CATU nor the disputant. Enquiries had been made at the Good Hope College in 1996 and their information was that Ms Thamage was in fact enrolled at the college in 1996, the Registrar having verified this.
4.6 It was further argued that the disputant was not disadvantaged within the meaning of paragraph 1.9(b)(ii) of Regulation 3 of 1996.
4.7 The essence of the union’s argument was that the Department should have been aware that Ms Thamage was not on study leave by 30 June 1996 and had they done their job properly they would have found out and forced Ms Thamage to resign. That means that the disputant would have been in a substantive vacant post. However this was not done.
4.8 It seems to me however that it is common cause that the disputant was not in a vacant substantive post within the meaning of paragraph 1.9(b)(ii) of Regulation 3 of 1996. That is a factual enquiry. One simply cannot wish this away by stating that if Ms Thamage had resigned then the disputant would have been protected.
4.9 Furthermore there is insufficient evidence that the disputant was allocated classes and went about the Department’s business during January to April 1998. It was conceded that the union had advised her to be at the school. There is no evidence from the principal Ms August that any classes were allocated to her.
4.10 In the circumstances I am unfortunately unable to find in favour of the disputant and grant the award that she seeks.
L J KRIGE
Date : 29 April 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CAR 000036
APPLICANT MS KUTWANA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE PERMANENT APPOINTMENT
ARBITRATOR L J KRIGE
DATE OF ARBITRATION 13 APRIL 1999
APPLICANT MR NOHESI (CATU)
RESPONDENT MESSRS I MATTHEWS , M S FAKIER
Mr Woods was not dismissed.
At all relevant stages, Mr Woods was a temporary employee.
DATE OF AWARD 29 APRIL 1999