PSES CMA 000066 WC
PSES CMA 000066 WC
Award Date:
30 April 1999
Case Number: PSES CMA 000066 WC
Province: Western Cape
Applicant: SADTU obo J R SASS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 30 April 1999
Arbitrator: ADELE WILDSCHUT
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CMA 000066 WC
In the arbitration between:
SADTU obo J R SASS APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . INTRODUCTION
1.1 The dispute arose following the rationalisation process conducted at the Hex Park Primary School, during the period November 1998 and December 1998 during which 7 educators 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, a ‘certificate of unresolved dispute’ was issued and the matter continued into arbitration.
2 . TERMS OF REFERENCE
The terms of reference agreed to by the parties 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 J R Sass, represented by SADTU, contended that he had been incorrectly identified in excess and that the rationalisation process was unfair for the following reasons:
3.1.1 It was procedurally incorrect in that ‘years of service’ was used without considering the other criteria such as years of experience in a subject.
3.1.2 The curriculum needs of the school were not taken into account in determining persons in excess.
3.1.3 The mandate from the staff and governing body was not adhered to in that the criteria of ‘productivity’ and ‘credit for assistance in other phases’ was not taken into account.
3.2 The department on the other hand contended that :
3.2.1 The principle of LIFO was an applicable one to be used in the process; that the curriculum needs of the school were determined and used in the process.
3.2.2 That ‘productivity’ was not a criterion laid down in resolution 6/98 and therefore should not be applied;
3.2.3 That the Department is required to take the views of the educators into account and not ‘negotiate’ with the educators.
3.2.4 That paragraph 6.3 last two bullets and bold paragraph of circular 148/98 relied upon was withdrawn by the department after a PTT meeting and is no longer applicable.
4 . EVIDENCE
4.1 The following facts emerged as undisputed from the evidence and argument :
4.1.1 A staff meeting was held at the Hex Park Primary School on 27 November 1998 during which the process of carrying out the needs assessment was discussed.
4.1.2 On 2 December 1998, a joint meeting between the staff and the governing body of the school was held. The purpose of the meeting was to give the staff an opportunity to present their proposal for rationalisation and to receive input from the governing body.
4.1.3 At the meeting of 2 December 1998, several terms were clarified and the number of posts to be declared in excess at senior and junior primary levels was presented.
4.1.4 3 Junior primary and 4 senior primary educators had to be declared in excess, including one deputy principal.
4.1.5 A right-sizing meeting was held on 2 December 1998 at which 7 educators were declared in excess.
4.1.6 A staff meeting was held on 8 December 1998 to report back on the results of the right-sizing meeting. Mr Sass was included in the list of 4 senior primary educators declared in excess.
4.1.7 Minutes of the 3 meetings and a report on the right-sizing meeting was handed to the arbitrator.
5 . ARGUMENT
5.1 Mr McDillon for the Union contended that in the right-sizing process paragraph 6.2.2 (d) of Resolution 6/98 was applied incorrectly. LIFO was applied in the first instance and the curriculum needs of the school and years of experience in a particular subject were not taken into account. Curriculum needs would include practical and academic subjects.
5.2 Mr Sass, the disputant was incorrectly identified as being in excess, as he had more experience in mathematics than Mr Ontong, the deputy principal. Mr Sass’ experience in the subject should have been taken into account during the right- sizing process. He also regularly made valuable contributions at the subject meetings, convened the school choir and is involved in many of the sport-codes offered in the extra-mural activities at the school.
5.3 In addition, the mandate given by the staff and the governing body was not followed in that the additional criteria of “productivity” and “credit for helping out” were not taken into account during the right-sizing process.
5.4 Mr Petersen for the Department contended the consultation envisaged in the Resolution did not imply negotiation and therefore the staff and governing body could not introduce additional criteria.
5.5 As far as the determination of the curriculum needs of the school is concerned, the Department contended that it played a less significant role at the senior primary school. There all educators are qualified to teach all the subjects offered at the school (with the exception of practical subjects such as needlework and handwork). All educators at this level, provided that they are professionally qualified, must be treated equally. “Years of experience” in a particular subject is therefore not decisive. In this context then, the LIFO principle becomes relevant when deciding whom to declare in excess.
5.6 In the case of Mr Sass, the Department argued, he had the least years of service of all the senior primary educators (i.e. 5 years) and therefore was correctly identified. Mr Strauss, the principal of Hex River Park School agreed that Mr Sass was a valuable staff member and that he offered much to the school. However, the school would be in a position to offer the same subjects and activities through the remaining educators at the school.
6 . DISCUSSION OF EVIDENCE
6.1 In terms of the evidence presented and the arguments put forward by the parties I must consider whether the procedure was fairly conducted.
6.2 In this regard I will now consider the following issues :
6.2.1 The relevance of the criteria established by the staff and governing body. In his closing argument, Mr McDillon for the Union made a strong request for the involvement of the governing body of the school in the right-sizing process, if the process were to be re-done. He also asked that this be done strictly according to the mandate form the staff and governing body and that the criteria of ‘productivity’ should also apply.
6.2.2 Resolution 6/98 does not envisage a role for the governing body of a school in the right-sizing process. The Circuit Manager, in consultation with the principal of the school, is responsible for this decision. The resolution is a negotiated agreement between the Department of Education and the Unions. Therefore, the Circuit Manager must apply the criteria laid down in the agreement. Additional criteria, which a particular school may find relevant, cannot be applied in terms of the resolution. The request that the governing body and the additional criteria established by the school should be used cannot be entertained.
6.2.3 The application of paragraph 6.2.2 of 6/98. Mr McDillon argued that the resolution was incorrectly applied as paragraph 6.2.2 (d) i.e. LIFO was applied in the first instance, rather than as a last step. As a result, Mr Sass was declared in excess due to the number of years of teaching experience.
6.3 According to the minutes of 27 November 1998 and 1 December 1998, the needs of the school were determined in relation to the number of learners per grade and phase, the number of classes per grade, the number of educators per phase and the subjects offered at the school. The Union did not question the accuracy of the minutes and therefore I accept that they are correct.
6.4 According to the testimony of the principal Mr Strauss and the report on the right-sizing process, the minutes of the meeting of 1 December 1998 were handed to the Circuit Manager. I am satisfied that a needs assessment was done and that the curriculum needs of the school were taken into account at the right-sizing meeting.
6.5 In determining the person to be declared in excess, consideration must first be given to posts to be declared in excess. I find the argument of the Department that at a primary school all educators are regarded as equally professionally qualified to teach the respective phases compelling. Teaching and learning is done in classes, rather than per subject and educators therefore have similar duties as referred to in paragraph 6.2.2 (c). In this case, then, the application of paragraph 6.2.2 (d) i.e. LIFO to the educators in the respective phases is appropriate.
6.6 I must deal with the Union’s argument that had experience in a subject been taken into account, the disputant could not have been declared in excess, as he had more experience in mathematics than the deputy principal, Mr Ontong. He relied on the decisions taken at the staff/governing body meeting of 1 December 1998 and circular 146.98. It was pointed out during the hearing that years of experience in a particular subject was not decisive as the last two bullets of paragraph 6.3 of circular 146.98 were removed after a PTT meeting.
6.7 Finally, the Union requested an investigation into the action of the principal unrelated to the dispute on hand. It was pointed out at the hearing that the arbitration was an inappropriate forum to raise such a request and therefore it could not be entertained. The Union was invited to raise their concerns at a more appropriate forum.
7 . DETERMINATION
7.1 The governing body of the school and the staff were not in a position to establish additional criteria, as this was not provided for in the resolution. In addition, the resolution does not envisage a role for the governing body in the right-sizing process.
7.2 The right-sizing process was done in terms of Resolution 6/98 and the declaration of Mr Sass as an educator in excess was done in terms of paragraph 6.2.2(d). He had to compete with other educators at the same level and with the same qualifications. He had the least years of experience in the senior primary phase and was therefore correctly declared in excess.
8 . AWARD
I find that the right-sizing process at the Hex River Primary School was done in terms of Resolution 6/98 and that Mr Sass was not unfairly declared in excess.
_______________________
ARBITRATOR
ADELE WILDSCHUT
Date : 30 April 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CMA 000066 WC
APPLICANT SADTU obo J R SASS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIRLY RATIONALISED
ARBITRATOR ADELE WILDSCHUT
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT SADTU via Mr W V McDILLON
RESPONDENT MR K PETERSEN
AWARD:
I find that the right-sizing process at the Hex River Primary School was done in terms of Resolution 6/98 and that Mr Sass was not unfairly declared in excess.
DATE OF AWARD 30 APRIL 1999
Province: Western Cape
Applicant: SADTU obo J R SASS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 30 April 1999
Arbitrator: ADELE WILDSCHUT
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CMA 000066 WC
In the arbitration between:
SADTU obo J R SASS APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . INTRODUCTION
1.1 The dispute arose following the rationalisation process conducted at the Hex Park Primary School, during the period November 1998 and December 1998 during which 7 educators 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, a ‘certificate of unresolved dispute’ was issued and the matter continued into arbitration.
2 . TERMS OF REFERENCE
The terms of reference agreed to by the parties 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 J R Sass, represented by SADTU, contended that he had been incorrectly identified in excess and that the rationalisation process was unfair for the following reasons:
3.1.1 It was procedurally incorrect in that ‘years of service’ was used without considering the other criteria such as years of experience in a subject.
3.1.2 The curriculum needs of the school were not taken into account in determining persons in excess.
3.1.3 The mandate from the staff and governing body was not adhered to in that the criteria of ‘productivity’ and ‘credit for assistance in other phases’ was not taken into account.
3.2 The department on the other hand contended that :
3.2.1 The principle of LIFO was an applicable one to be used in the process; that the curriculum needs of the school were determined and used in the process.
3.2.2 That ‘productivity’ was not a criterion laid down in resolution 6/98 and therefore should not be applied;
3.2.3 That the Department is required to take the views of the educators into account and not ‘negotiate’ with the educators.
3.2.4 That paragraph 6.3 last two bullets and bold paragraph of circular 148/98 relied upon was withdrawn by the department after a PTT meeting and is no longer applicable.
4 . EVIDENCE
4.1 The following facts emerged as undisputed from the evidence and argument :
4.1.1 A staff meeting was held at the Hex Park Primary School on 27 November 1998 during which the process of carrying out the needs assessment was discussed.
4.1.2 On 2 December 1998, a joint meeting between the staff and the governing body of the school was held. The purpose of the meeting was to give the staff an opportunity to present their proposal for rationalisation and to receive input from the governing body.
4.1.3 At the meeting of 2 December 1998, several terms were clarified and the number of posts to be declared in excess at senior and junior primary levels was presented.
4.1.4 3 Junior primary and 4 senior primary educators had to be declared in excess, including one deputy principal.
4.1.5 A right-sizing meeting was held on 2 December 1998 at which 7 educators were declared in excess.
4.1.6 A staff meeting was held on 8 December 1998 to report back on the results of the right-sizing meeting. Mr Sass was included in the list of 4 senior primary educators declared in excess.
4.1.7 Minutes of the 3 meetings and a report on the right-sizing meeting was handed to the arbitrator.
5 . ARGUMENT
5.1 Mr McDillon for the Union contended that in the right-sizing process paragraph 6.2.2 (d) of Resolution 6/98 was applied incorrectly. LIFO was applied in the first instance and the curriculum needs of the school and years of experience in a particular subject were not taken into account. Curriculum needs would include practical and academic subjects.
5.2 Mr Sass, the disputant was incorrectly identified as being in excess, as he had more experience in mathematics than Mr Ontong, the deputy principal. Mr Sass’ experience in the subject should have been taken into account during the right- sizing process. He also regularly made valuable contributions at the subject meetings, convened the school choir and is involved in many of the sport-codes offered in the extra-mural activities at the school.
5.3 In addition, the mandate given by the staff and the governing body was not followed in that the additional criteria of “productivity” and “credit for helping out” were not taken into account during the right-sizing process.
5.4 Mr Petersen for the Department contended the consultation envisaged in the Resolution did not imply negotiation and therefore the staff and governing body could not introduce additional criteria.
5.5 As far as the determination of the curriculum needs of the school is concerned, the Department contended that it played a less significant role at the senior primary school. There all educators are qualified to teach all the subjects offered at the school (with the exception of practical subjects such as needlework and handwork). All educators at this level, provided that they are professionally qualified, must be treated equally. “Years of experience” in a particular subject is therefore not decisive. In this context then, the LIFO principle becomes relevant when deciding whom to declare in excess.
5.6 In the case of Mr Sass, the Department argued, he had the least years of service of all the senior primary educators (i.e. 5 years) and therefore was correctly identified. Mr Strauss, the principal of Hex River Park School agreed that Mr Sass was a valuable staff member and that he offered much to the school. However, the school would be in a position to offer the same subjects and activities through the remaining educators at the school.
6 . DISCUSSION OF EVIDENCE
6.1 In terms of the evidence presented and the arguments put forward by the parties I must consider whether the procedure was fairly conducted.
6.2 In this regard I will now consider the following issues :
6.2.1 The relevance of the criteria established by the staff and governing body. In his closing argument, Mr McDillon for the Union made a strong request for the involvement of the governing body of the school in the right-sizing process, if the process were to be re-done. He also asked that this be done strictly according to the mandate form the staff and governing body and that the criteria of ‘productivity’ should also apply.
6.2.2 Resolution 6/98 does not envisage a role for the governing body of a school in the right-sizing process. The Circuit Manager, in consultation with the principal of the school, is responsible for this decision. The resolution is a negotiated agreement between the Department of Education and the Unions. Therefore, the Circuit Manager must apply the criteria laid down in the agreement. Additional criteria, which a particular school may find relevant, cannot be applied in terms of the resolution. The request that the governing body and the additional criteria established by the school should be used cannot be entertained.
6.2.3 The application of paragraph 6.2.2 of 6/98. Mr McDillon argued that the resolution was incorrectly applied as paragraph 6.2.2 (d) i.e. LIFO was applied in the first instance, rather than as a last step. As a result, Mr Sass was declared in excess due to the number of years of teaching experience.
6.3 According to the minutes of 27 November 1998 and 1 December 1998, the needs of the school were determined in relation to the number of learners per grade and phase, the number of classes per grade, the number of educators per phase and the subjects offered at the school. The Union did not question the accuracy of the minutes and therefore I accept that they are correct.
6.4 According to the testimony of the principal Mr Strauss and the report on the right-sizing process, the minutes of the meeting of 1 December 1998 were handed to the Circuit Manager. I am satisfied that a needs assessment was done and that the curriculum needs of the school were taken into account at the right-sizing meeting.
6.5 In determining the person to be declared in excess, consideration must first be given to posts to be declared in excess. I find the argument of the Department that at a primary school all educators are regarded as equally professionally qualified to teach the respective phases compelling. Teaching and learning is done in classes, rather than per subject and educators therefore have similar duties as referred to in paragraph 6.2.2 (c). In this case, then, the application of paragraph 6.2.2 (d) i.e. LIFO to the educators in the respective phases is appropriate.
6.6 I must deal with the Union’s argument that had experience in a subject been taken into account, the disputant could not have been declared in excess, as he had more experience in mathematics than the deputy principal, Mr Ontong. He relied on the decisions taken at the staff/governing body meeting of 1 December 1998 and circular 146.98. It was pointed out during the hearing that years of experience in a particular subject was not decisive as the last two bullets of paragraph 6.3 of circular 146.98 were removed after a PTT meeting.
6.7 Finally, the Union requested an investigation into the action of the principal unrelated to the dispute on hand. It was pointed out at the hearing that the arbitration was an inappropriate forum to raise such a request and therefore it could not be entertained. The Union was invited to raise their concerns at a more appropriate forum.
7 . DETERMINATION
7.1 The governing body of the school and the staff were not in a position to establish additional criteria, as this was not provided for in the resolution. In addition, the resolution does not envisage a role for the governing body in the right-sizing process.
7.2 The right-sizing process was done in terms of Resolution 6/98 and the declaration of Mr Sass as an educator in excess was done in terms of paragraph 6.2.2(d). He had to compete with other educators at the same level and with the same qualifications. He had the least years of experience in the senior primary phase and was therefore correctly declared in excess.
8 . AWARD
I find that the right-sizing process at the Hex River Primary School was done in terms of Resolution 6/98 and that Mr Sass was not unfairly declared in excess.
_______________________
ARBITRATOR
ADELE WILDSCHUT
Date : 30 April 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CMA 000066 WC
APPLICANT SADTU obo J R SASS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIRLY RATIONALISED
ARBITRATOR ADELE WILDSCHUT
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT SADTU via Mr W V McDILLON
RESPONDENT MR K PETERSEN
AWARD:
I find that the right-sizing process at the Hex River Primary School was done in terms of Resolution 6/98 and that Mr Sass was not unfairly declared in excess.
DATE OF AWARD 30 APRIL 1999