Case Number: PSES 000021 EC
Province: Eastern Cape
Applicant: V FAZIE
Respondent: DEPARTMENT OF EDUCATION EC
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 27 July 1999
Arbitrator: W P SCHEEPERS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 000021 WC
In the arbitration between:
CATU obo V FAZIE APPLICANT
EASTERN CAPE DEPARTMENT OF EDUCATION RESPONDENT
1 . HEARING AND REPRESENTATION
1.1 The employer party, East Cape Education Department, was represented by Ms T Poswa, and the Union on behalf of the grievant by Mr M S Nohesi.
1.2 The arbitration hearing took place on 16 July 1999 at the Regional offices of the employer party, Second Floor, Mayekiso Building, Main Street, Butterworth.
2 . ISSUES AND POWERS
2.1 The issue in dispute concerns the non-placement of the grievant as well as the fairness or unfairness of the Education Department in its failure to find alternative employment for Ms Fazie.
2.2 The terms of reference applicable to this arbitration are that I was empowered in terms of clause 2 of Resolution No 7 of 1997 of the EDUCATION LABOUR RELATIONS COUNCIL (ELRC) to award a remedy which is considered fair and/or appropriate in order to settle the dispute.
2.3 I am further empowered to determine the procedure which shall be followed at the hearing.
3 . BACKGROUND
3.1 At the outset of the hearing it was made clear that the issue in dispute had nothing to do with termination of service of the grievant.
3.2 The grievant became ill and was booked off sick by her medical practitioner on 12 May 1998. The parties are in agreement that the medical condition of the grievant was of a temporary nature. This is supported by the relevant documentation marked A.
3.3 Further documentation handed in were:
3.3.1 ANNEXURE “A”. Letter form Dr A T Mtimkulu to CATU. Incapacity of V Fazie & recommendation.
3.3.2 ANNEXURE “B”. Letter from V Fazie to Department of Education dated 13 March 1998 re: Application for translation.
3.3.3 ANNEXURE “C”. Letter from V Fazie to Department of Education dated 15 December 1997. Motivation for translation.
3.3.4 ANNEXURE “D”. Letter from Dr A T Mtimkulu to Department of Education dated 12 May 1998. Medical note.
3.3.5 ANNEXURE “E”. Medical note from Dr L Stenger in respect of V Fazie dated 12 May 1998. Medical note.
3.3.6 ANNEXURE “F”. Letter from Department of Education to V Fazie dated 23 September 1998. Rejection of application for translation.
3.3.7 ANNEXURE “G”. Letter from the Regional Director, Eastern Region Department of Education to V Fazie dated 17 February 1998 for grievant to resume duties
3.3.8 ANNEXURE “H”. Letter from Dr L N Stenger to CATU dated 01 December 1998. Medical note.
4 . EVIDENCE
4.1 The union commenced by leading evidence and called the grievant, Vuyokai Fazie, the grievant’s father Mr Farrengton Fazie and Mr Nkosinathi Nonkonyaan, friend of the grievant.
4.2 The grievant testified that she was in the employ of the Education Department at Upper Matanzima Junior Secondary School since 24 February 1993. She further testified that she became ill with severe tension headaches, memory lapses, paralysis of limbs, asthmatic, affected speech and swollen limbs during or about September 1996 and has been booked off since. She however testified that she is now fit to resume her normal duties a teacher at the school. She further explained in great detail the steps she took to be placed. This was to a large extent confirmed by the witnesses for the employer. She further unsuccessfully applied for various posts within the department. She was also not fully informed of her options.
4.3 She testified that her condition was diagnosed as being of a temporary nature and advanced documentation in this regard, namely the aforementioned annexures and that she would have been able to function in an office environment.
4.4 Her testimony that she had no personal problems with the principal and/or other members of the staff was corroborated by the principal who was called as a witness by the employer.
4.5 Under cross-examination she testified that she never received any correspondence from the employer, although these were correctly addressed. She testified that she never had sight of the correspondence shown to her at the hearing. This however was not supported by her witnesses, who testified that they previously had sight of some of this correspondence.
4.6 The grievant called her father, Mr Vuyani Farrengton Fazie, who testified that he accompanied her to various meetings with the departmental officials concerned. He was however more concerned that she had no income and relied on him for financial support.
4.7 He, however, explained his daughter’s illness as having a tribal origin and further corroborated her version of events except for the fact that he knew about correspondence between his daughter and the Education Department. Under cross-examination he again voiced financial considerations as the main concern.
4.8 The grievant also called her boyfriend, Nkosinathi Nonkonyana who in his testimony confirmed the evidence of the other two witnesses. He further testified that he accompanied her to various meetings with departmental officials.
4.9 The Department called Mxolisi Scott, principal of Upper Matanzima Junior Secondary School who testified that he knew the grievant since her appointment at the school, that she had a good record and that he never had any problems with her, she was a resourceful and reliable teacher. He testified that her absence at the school affected the school negatively and that she is welcome to return to school at any time, since she was still needed there. He further testified that he was aware of her illness through the medical certificates she sent to the school. He however never visited her at home during the period of her illness, since they stay far apart.
4.10 He further testified that he attended a meeting at the district office with the grievant to clarify a misunderstanding that there was bad blood between himself and the grievant. This was settled to the satisfaction of all parties concerned and was merely a misunderstanding. This was confirmed by the grievant in her earlier testimony.
4.11 The Employer then called Mr Temba Templeton Dyasi, the District manager for Ngqaleni who testified that he first met the grievant during February 1997, when she approached his office with her problem. He explained to her the various options open to her at the time.
4.12 The witness was further of the opinion that the grievant will be better placed in a school environment and she would definitely not be suited for an office environment due to the wider range of people and personalities to be found in an office environment. The witness further testified that the grievant is a professional person and would not fit in if used as an ordinary clerk.
4.13 Under cross-examination the witness testified that he did not discuss medical board as an option with the grievant, since in his opinion it was not an option at the time. The witness further explained that at the time of his advise to the grievant, he did not have insight into the medical records of the grievant, which was only submitted at a later stage.
4.14 Under cross-examination the witness explained at length the leave cycle of the grievant and why she was on unpaid leave.
5 . ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 In considering the evidence, I find the witnesses to be credible and honest. I was further addressed at length by the parties on the suitability of the grievant in various posts, her present condition, the reason for the delay in either translating the grievant or re-appointing her in her post, her capacity and the non-payment of the grievant after completion of her leave cycle.
5.2 Although the union on behalf of the grievant disputed the correspondence claimed by the department to have been sent to her, I am convinced that this correspondence found its way to the grievant. I however see no reason why the grievant should deny the receipt of this correspondence.
5.3 The grievant further attempted to lay the blame or the delays herein and the reason for non-payment of salary at the door of the Department. I however could find no evidence in that respect. To the contrary, the Department went a long way to accommodate the grievant and was quite accommodating towards her. I therefore find that the delays herein is of her own doing.
5.4 I further find that the grievant will not be suitable or able to properly adapt to an office environment.
5.5 It was stated on numerous occasions during the hearing that the grievant is now able to take up her post at Upper Matanzima Junior Secondary School. Why the grievant did not to date report for duty is also not of the doing of the Education Department or it’s officials. The grievant herself in testimony indicated that she is ready to resume duty. The Department from its side, in writing communicated to the grievant that she may take up her post.
5.6 I therefore cannot accede to the request from the union that the grievant should be compensated for the time not paid, since the non-rendering of her services by her was of her own doing.
5.7 Although acknowledged earlier, the department in closing disputed the fact that the grievant is well and claimed that her illness is of a permanent nature. No evidence in that respect was however placed before me.
5.8 I turn now to determine the dispute.
6 . AWARD
6.1 In the exercise of my mandate to make an award which I deem appropriate and correct, my determination are as follows.
6.1.1 That Ms Fazie be instated in her position as teacher in the above school on conditions not less favourable than those that existed on her last working day.
6.1.2 That the grievant is not entitled to payment of salary and/or any other benefits, for the period of her absence from school, for whatever reason.
6.1.3 That two quarterly progress recommendations be conducted in respect of the grievant, by no later than 31 March 2000 to determine the suitability of the grievant to continue her employment in a school environment.
6.1.4 Should the grievant be found to be unsuitable to attend to teaching duties in a school environment, the education department, in its sole discretion, shall translate the grievant to a suitable post.
6.1.5 In event of the grievant be found to be translated and no suitable post and/or position be found for the grievant and/or no agreement is reached in respect of the grievant, the arbitrator may be approached to render a further award in this respect.
W P SCHEEPERS
DATED: 27 JULY 1999.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 000021 EC
APPLICANT V FAZIE
RESPONDENT DEPARTMENT OF EDUCATION EC
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR W P SCHEEPERS
DATE OF ARBITRATION 16 JULY 1999
APPLICANT MR M S NOHESI (CATU)
RESPONDENT MS T POSWA
1 In the exercise of my mandate to make an award which I deem appropriate and correct, my determination are as follows.
2 That Ms Fazie be instated in her position as teacher in the above school on conditions not less favourable than those that existed on her last working day.
3 That the grievant is not entitled to payment of salary and/or any other benefits, for the period of her absence from school, for whatever reason.
4 That two quarterly progress recommendations be conducted in respect of the grievant, by no later than 31 March 2000 to determine the suitability of the grievant to continue her employment in a school environment.
5 Should the grievant be found to be unsuitable to attend to teaching duties in a school environment, the education department, in its sole discretion, shall translate the grievant to a suitable post.
6 In event of the grievant be found to be translated and no suitable post and/or position be found for the grievant and/or no agreement is reached in respect of the grievant, the arbitrator may be approached to render a further award in this respect.
DATE OF AWARD 27 JULY 1999