Case Number: PSES CAR 000031
Province: Western Cape
Applicant: R NOORDIEN
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 14 May 1999
Arbitrator: D F MIAS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR000031 WC
In the arbitration between:
R NOORDIEN APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . TERMS OF REFERENCE
1.1 The dispute between the parties is referred to arbitration after a failed conciliation by the Education Labour Relations Council.
1.2 Verbal and documentary evidence was tendered at the arbitration proceedings.
1.3 I am required to decide whether the termination of Mr Noordien’s employment at the end of 1996 constituted an unfair labour practice and to award a remedy which I consider fair or appropriate in order to settle the dispute.
2 . THE ISSUES IN DISPUTE
2.1 Mr Noordien had been employed as a temporary teacher at various schools. The present dispute arise from his employment as a replacement teacher at Paulus Joubert Secondary School in Paarl from May 1996 until December 1996.
2.2 The terms of his appointment at Paulus Joubert Secondary are indicated by a Nomination for Appointment as Teacher document handed in by the parties. This document indicates that from 20 May 1996 to 30 September 1996. Mr Noordien was employed as a substitute teacher in place of one Mr Arendse who was absent from his permanent post on sick leave. Though their contract expired at the end of September 1996, the contract was renewed for the last quarter of 1996.
2.3 The factual history of Mr Noordien’s employment with the Department and at Paulus Joubert Secondary School is not in dispute.
2.4 It is clear that at the time that Mr Noordien commenced employment at Paulus Joubert he arrived there as a substitute teacher.
2.5 On or about 12 August 1996 the South African Democratic Teachers Union wrote to the employer requesting that Mr Noordien be treated as a permanent teacher as contemplated in paragraph 1.9(b)(ii) of Resolution 3 of 1996 of the Education Labour Relations Council. This Resolution is contained in Government Gazette No 5711 of 31 May 1996.
2.6 Paragraph 1.9(b)(ii) provides that for purposes of redeployment, temporary educators employed (not as replacements) in substantive posts .. “Will be treated in the same way as permanent educators”.
2.7 It was common cause between the parties that Mr Noordien had been employed at Paulus Joubert Secondary School as a temporary educator but also on a replacement basis. In terms of the rationalisation policies and resolutions of the council Mr Noordien therefore did not qualify to be classified as redeployable.
2.8 On 18 November 1996 a letter was written by a certain J H Hurter and addressed to Mr Noordien at Paulus Joubert Secondary. This letter confirms that a decision had been taken that Mr Noordien had been declared in excess at the school and was therefore redeployable. The letter goes on to advise that his employment at Paulus Joubert ends on 31 December 1996. He was also required to give co-operation in seeking a new post at another school. In accordance with the rationalisation and redeployment process agreed at the bargaining chamber Mr Noordien’s name was entered on a list of redeployable temporary teachers who could apply for vacant posts at other institutions and could be employed on a permanent basis provided he was appointed to such post by the governing body of the school concerned.
2.9 The employer in this matter took the view that whilst Mr Noordien was technically entitled to have been placed on the redeployment list. It was prepared to concede that his name should stay there and that he should be free to apply for any post in the normal course that became vacant and if nominated by the school his appointment would in the ordinary course be confirmed.
2.10 This dispute relates to the termination of employment as of the end of December 1996. In terms of the rationalisation process of educators that had been declared in excess and were occupying permanent posts at institutions, they were required to remain on the staff of their schools until such time as they were redeployed, preferentially as permanent teachers in excess. The employer argues in this matter than Mr Noordien as a substitute and temporary teacher occupy a post which had not been declared in excess was not entitled to preferential treatment to any other vacant post.
2.11 The letter of 18 November 1996 was the central program in this matter. It was argued by SADTU on behalf of Mr Noordien that the letter of 18 November 1996 constituted an unambiguous declaration of Mr Noordien as being in excess. He should therefore have remained at the school after the end of 1997 and have been paid as a serving employee of the employer in the normal course. For some reason which was never explained or declared at the arbitration proceedings, the letter of 18 November 1996 never reached Mr Noordien. It was only when he called at the offices of the employer in January 1998 that he discovered, accidentally, that such a letter had been written in 1996. He thereupon commenced his dispute by consulting the union and starting the necessary process.
2.12 Mr Noordien did teach at various schools in 1997 and for various periods, the details of which are not relevant for the purposes of this award. All of these teaching jobs since the end of 1996 had been temporary and on a substitute basis. He complaints, understandably, that he had been seriously prejudiced by not being kept on at Paulus Joubert at the end of 1996 when he had been informed by the Principal that his time with the school had come to an end. In 1998, upon discovering the letter of 18 November 1996 he attempted to present himself for work at Paulus Joubert but was turned away. The employer thereafter wrote to Mr Noordien on 6 February 1998 pointing out to him that the letter of 18 November 1996 had been written in error and upon the factual misrepresentation of the Acting Principal on 15 October 1996 that Mr Noordien was a teacher in excess employed on a temporary basis. The letter of 6 February 1998 apologises for any inconvenience and prejudice but takes the view that Mr Noordien cannot be treated as a permanent teacher in excess. His change of status as substitute teacher to redeployable was however confirmed.
3 . EVIDENCE FOR THE EMPLOYEE
3.1 Mr Noordien himself gave evidence as to how he had started with the employee in 1989 and that he been posted to various schools on a substitute basis. Whilst he was at Paulus Joubert from May to December 1996 the request had been made for him to be translated to redeployable and his status changed to that of a permanent teacher in excess. On 10 October 1996 he had a discussion with a certain Mr Heiberg, Circuit Inspector, In the Principal’s office. The Circuit Inspector had promised that he would discuss the matter with the Head Office of the employer. To this end the Circuit Inspector had made a telephone call to the Head Office. At 10:25 am that day he was informed by the Circuit Inspector, in the presence of 6 or 7 senior personnel of the school, that his status had been changed. He confirmed that he had never received the letter of 18 November 1996 and could offer no real explanation as to why this has not been handed to him. On 11 October 1996, with the intention of getting married, he had purchased furniture. As at the date of the arbitration he was still unmarried as he could not give effect to his personal plans. He had not had any employment for 1999. He felt that in all the circumstances he had been treated unfairly.
3.2 The Union called Mr Raymond Julies, a teacher at Paulus Joubert. He stated how in October 1996 he had been in an office at the school when the Circuit Inspector, Mr Heiberg, had in his presence informed Mr Ephraim, Acting Principal, to give attention to placing Mr Noordien’s name on the list of teachers in excess who were reployable. His understanding was that this could only be done if you were a permanent employee.
4 . THE EVIDENCE FOR THE EMPLOYEE
4.1 The employee called Mr Heiberg, the Circuit Inspector, who explained how he had been informed that Mr Noordien insisted at the beginning of 1998 that he should be employed at Paulus Joubert. He investigated the matter and came to the conclusion that Mr Noordien was not a permanent teacher but a substitute. He confirmed that the letter of 18 November 1996 had been written in error and upon a misrepresentation contained in the documents submitted by the Acting Principal.
4.2 Mr Heiberg also stated that whilst it was competent for him to make a recommendation that Mr Noordien be classified as redeployable (voluntary) he could not have suggested a change in status from temporary to permanent.
4.3 When it was put to Mr Heiberg in cross-examination that he had instructed the Acting Principal in October 1996 to have Mr Noordien’s name placed on the redeployment list, he stated that he could not recall this.
4.4 It was further put to Mr Heiberg in cross-examination that his letter of 6 February 1998 cannot be supercede the letter of his Area Manager of 18 November 1996. Mr Heiberg insisted however that the letter of 18 November 1996 was written on the basis of erroneous information. He agreed however that expectations had been created on the part of Mr Noordien, but insisted that Mr Noordien’s classification as redeployable remained and he was therefore entitled to apply for any vacant post.
4.5 The employer also called the Acting Principal, Mr Ephraim who had completed the return, Form K, which indicated that Mr Noordien was a temporary teacher (not substitute). It was only in 1998 when it was pointed out to him that he realised that he had made a mistake and conceded that the mistake was prejudicial to Mr Noordien.
4.6 In cross-examination it was put to Mr Ephraim that it was in fact not a mistake but that he had been given instructions to treat Mr Noordien as redeployable. When he was asked whether the Circuit Inspector had ever discussed Mr Noordien’s status with him he admitted that there had been discussions. When asked whether he could recall that he himself had informed Mr Noordien that he was now declare in excess, he stated that he could not remember this.
4.7 It is clear from Mr Ephraim’s evidence that there had been discussions with regard to Mr Noordien’s status change in October 1996. When I asked him to explain the mistake he conceded that he possibly made the mistake as a result of the discussions and what had been said to him by the Circuit Inspector. He had known that Mr Noordien was attempting to have his status changed in 1996.
5 . EVALUATION
5.1 The employer argues that Mr Noordien must have been aware of the legal inability of the employer to change his status to permanently deployable as he had done nothing about the matter for the entire year of 1997. It is only in 1998 January when he discovered the existence of the letter f 18 November 1996 that he attempts to do something.
5.2 This argument of the employer seems to me to have much merit. Mr Noordien taught at a number of schools in 1997 without complaint and after having been released by the Principal of Paulus Joubert on the basis that his contract had expired.
5.3 On the other hand it seems that there had in fact been much discussion at the school with regard to Mr Noordien’s change of status. However, it is not clear whether Mr Ephraim entered his name as a temporary teacher or as deployable on the basis of instructions or information relayed to him by the Circuit Inspector or on the basis of his own(wrong) understanding of the situation.
5.4 The letter of 18 November 1996 was never given to Mr Noordien for reasons that are entirely unclear. What is clear is that it was withheld from him.
5.5 What is also clear is that Mr Noordien behaved in all respects until January 1998 as if he had no claim to be regarded as a permanent redeployable educator.
5.6 According to the Bargaining Council Resolution contained in Governing Gazette No 17226 of 31 May 1996 he certainly did not qualify to be treated as a permanent educator occupying a substantive post in the establishment. Paragraph 1.9(b)(ii) specifically excludes him as a replacement teacher from this benefit. Mr Noordien’s conduct throughout 1997 in not complaining, indicates that he understood this to be the position. It seems to me that expectations arose with him only after January 1998.
6 . AWARD
6.1 In the circumstances I find that Mr Noordien was not unfairly dismissed at the end of 1996.
D F MIAS
Date : 14 May 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CAR 000031
APPLICANT R NOORDIEN
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR D F MIAS
DATE OF ARBITRATION
I find that Mr Noordien was not unfairly dismissed at the end of 1996.
DATE OF AWARD 14 MAY 1999