Case Number: PSES 00/98 GDE
Province: Eastern Cape
Applicant: SUID-AFRIKAANSE ONDERWYSUNIE (SAOU)
Respondent: GAUTENG DEPARTMENT OF EDUCATION (GDE) AND SOUTH AFRICAN COLLEGE OF TEACHERS (SACTE)
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 20 June 1999
Arbitrator: BRIAN CURRIN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 00/98 GDE
In the arbitration between
SUID-AFRIKAANSE ONDERWYSUNIE (SAOU) APPLICANT
GAUTENG DEPARTMENT OF EDUCATION (GDE) AND SOUTH AFRICAN COLLEGE OF TEACHERS (SACTE) RESPONDENT
1 . HEARING AND REPRESENTATION
.1 This is a conciliation/arbitration in terms of paragraph 1 of Resolution 7 of 1997 - the Dispute Resolution Procedure of the ELRC.
.2 The Applicant referred the dispute to the ELRC on February 6, 1998.It was taken through the various stages of conciliation as provided for in paragraph 1 and eventually finalised on Friday June 11, 1999. As far as I am able to make out the lengthy extensions which resulted in this matter taking 16 months to reach fruition were agreed to by the parties, albeit reluctantly by the Applicant. As I understand the spirit of Resolution 7, its intention is to ensure the speedy resolution of disputes. It would be in the interest of sound labour relations if the ELRC were to find ways of safeguarding the intended speedy resolution of disputes.
.3 Besides this determination I was required to make three other determinations during the course of the hearing, namely :
.1 whether the dispute constitutes a dispute of rights;
.2 whether that determination implied that the office hours arrangement was a term an condition of employment binding the Department of Education;
.3 my terms of reference for this arbitration.
.4 These three determinations are dealt with separately. In summary I found that :
.1 the dispute may constitute a dispute of rights;
.2 the above ruling was not intended to imply that the office hours arrangement was a term and condition of employment binding the Department of Education (this still had to be proved)
.3 my terms of reference are to make a final and binding award as to whether the Department of Education unilaterally changed the employees’ terms and conditions of employment, and if so, to permanently restore the terms and conditions of employment that applied before the change.
.5 It is common cause that the Minister of Education determines terms and conditions of employment.
.6 The process followed to determine new terms or amend existing terms and conditions of employment is negotiations between all parties to be ELRC resulting in a Resolution (Collective Agreement) duly signed by the parties and authorised by the Minister of Education, whereafter it is published in the Government Gazette and only then becomes binding on both parties and non parties to the Council. The negotiations involve a comprehensive mandating process from the National and Provincial Departments of Education.
.7 In November 1998 an agreement was reached - Resolution 7 of 1998 - at the ELRC on Workload of Educators (school based) which, inter alia stipulates that educators should be at school during the formal school day which should not be less than 7 hours per day.
.8 In the introduction/preamble to the Resolution, the parties note the absence, over the years, of uniform regulations on workloads and specific working times.
.9 It is also common cause that the parties to the ELRC are in the process of negotiating a similar agreement for educators at Technical Colleges. A draft agreement was tabled for further discussion and final agreement earlier this year. The parties to this dispute are ad idem that this agreement has not yet been concluded and is not a Resolution of the ELRC.
.10 In the absence of the above, there is not a formal contractual arrangement between the Applicant Trade Union and its members on the one hand and the employer - Department of Education - on the other.
.11 However, Applicant sought to prove that there is a binding and enforceable agreement between the College Council, representing the Department of Education, and the Applicant, representing its members. In his opening submission, Mr Klopper stated that in January 1996 the College Council, which included representative from the GDE, instructed the Technicon’s Management Committee to negotiate office hours with employees and/or their Trade Unions. As part of transformation taking place in the Tertiary Education Sector there had been an amalgamation of technicons which effectively gave birth to the South African College of Teacher Education. Coming from different Institutions there had been different office hours needed to be agreed upon in view of the fact that there was at the time, and had been, a vacuum in this regard since the establishment of the GDE in 1994. According to Mr Klopper the Management Committee had been instructed by the Technicon’s Council that they must reach an agreement with staff on office hours. He went on to state that although a collective agreement had not been concluded between SAOU and the Technicon Council or Department of Education, there had been a meeting of minds and, therefore, a binding contract existed between the Union and the Council of SACTE, binding the GDE. The agreement is, according to him, reflected in Annex 18 A in Applicant’s bundle, namely office hours will be daily between 07h00 and 13h30. After 13h30 academic staff are to be available for any academic matters. This agreement would be binding until re-negotiated. In violation thereof, SACTE subsequently changed the office hours unilaterally, without consent of the Applicant or its members.
.12 To prove his case, Mr Klopper called Professor Kruger, who was Rector of the amalgamated Technicon SACTE, at the time. It is not necessary to relate all the detail of this witness’s evidence. He confirmed the process followed in establishing the agreed working hours and stated that if there were to be changes, further negotiations would have to take place.
.13 Under cross-examination, he conceded the following :
.1 there is a distinction between the GDE and a SACTE Council with GDE representatives;
.2 the GDE was not involved in the negotiations which led to the “agreement” with staff on office hours;
.3 he did not regard this agreement as a legally enforceable document but rather an understanding;
.4 the purpose of the negotiations was to reach an understanding with staff about office hours which would be workable and acceptable to the majority of educators;
.5 if no agreement had been reached, he would have made a determination which, on his reading of the situation, was acceptable to the majority;
.6 the Council is not the employer of staff at the Technicon.
.14 Mr Klopper lead no evidence to attempt to prove that the Technicon Council was instructed by, or legally mandated, to bind the Department of Education when the arrangement was made with staff regarding office hours. He, however, made a half-hearted suggestion that the principle of Estoppel could apply.
.15 There is no doubt in my mind that Estoppel will not assist the Applicant in these circumstances, particularly in the context of the Public Sector.
.16 In the absence of any evidence that there is a valid and binding agreement between SAOU, representing its members, and the GDE as employer, which would constitute a term and condition of employment regarding office hours, the Applicant cannot succeed in proving that the Department of Education, unilaterally changed such a term.
.17 Concerning the alleged “agreement” in regard to office hours between SACTE and Applicant’s members, since SACTE is not a party to the ELRC, I have no authority to make a determination in respect of that dispute.
Date : 20 June 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 00/98 GDE
APPLICANT SUID-AFRIKAANSE ONDERWYSUNIE (SAOU)
RESPONDENT GAUTENG DEPARTMENT OF EDUCATION (GDE) AND SOUTH AFRICAN COLLEGE OF TEACHERS (SACTE)
ARBITRATOR BRIAN CURRIN
DATE OF ARBITRATION 6 FEBRUARY 1998 - 11 JUNE 1999
APPLICANT MR KLOPPER
Concerning the alleged “agreement” in regard to office hours between SACTE and Applicant’s members, since SACTE is not a party to the ELRC, I have no authority to make a determination in respect of that dispute
DATE OF AWARD 20 JUNE 1999