Case Number: PSES GAME 009813 GP
Province: Eastern Cape
Applicant: M M MUKWEVHO
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 21 September 1999
Arbitrator: PROF MZUNGULU MTHOMBENI
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAME 009813 GP
In the arbitration between:
MUKWEVHO MM APPLICANT
THE DEPARTMENT OF EDUCATION RESPONDENT
HEARING AND REPRESENTATION
.1 The Employee was represented by Mr CR Malivhadza, and the Employer by Mr J. Thipe. The arbitration hearing took place on 3 September 1999 at the Gauteng Department of Education, 111 Commissioner Street, Johannesburg in the province of Gauteng.
2 . ISSUE AND POWERS
2.1 The issue concerns the fairness of the procedure followed when the Employee was declared in excess by the Employer. I must determine whether the procedure followed was fair, and have, in terms of the labour Relations Act of 1995 (“the Act”), the power to make an appropriate award.
3 . BACKGROUND
3.1 The Employee had been employed by the Employer for approximately eighteen (18) years. She had been declared to be in excess in terms of Resolution No.6 of 1998 of the Education Labour Relations Council which makes provision for the procedure for the rationalisation and redeployment of educators in the provisioning of educator posts.
3.2 The Employee contends that Resolution No.6 was not followed when declaring her in excess in accordance with the procedure laid down in Resolution no.6.
4 . EVIDENCE
4.1 The Employer led the evidence of two witnesses; namely, Mr E. Ntsibande and Mr D. Moloto.
4.2 Mr Ntsigbande testified that he is employed by the Employer as the District Education Co-ordinator (DEC) for circuit No.4. He is responsible for the management and support of schools in his circuit. He also works in collaboration with the school governing bodies (SGB’s).
4.3 In 1998 he was involved in the rationalisation process at Veritas High School, where the Employee was employed. The school timetable was used to compile a list of subjects and a number of periods for each educator. Educators who had the highest number of periods were retained in their posts. If a tie exists, teaching experience was used as a tiebreaker.
4.4 In this regard, there was a tie between Mr Khangale and the Employee. Mr Khangale had twenty (20) years experience, and the Employee had eighteen (18). In consequence, the Employee had to be declared in excess.
4.5 According to the timetable, in 1998 the Employee was teaching English only. In terms of Resolution No.6 the number of subjects, curriculum needs and the last-in, first-out (LIFO) principle should be taken into account. Extra-curriculum subjects were not considered.
4.6 Mr Moloto gave evidence that he had been the principal at Veritas High School for nine (9) years. He was involved in the rationalisation process in 1998. All the educators who taught English were considered. Mr Khangale and the Employee were identified to be the educators who taught English only.
4.7 The Employee testified that she is employed as an educator at Veritas High School. She was present when the rationalisation process was explained by Mr Machidi to the educators. The educators were informed that curriculum needs were important. All educators who could teach from standard six (6) to ten (10) were not qualified to be at the school. They could, nonetheless, be used for extra-curricular subjects.
4.8 Ms Mpilwane, a co-employee, had supplied all the educators with Circular No. 127 of 1998. According to the Employee, she should not have been declared in excess as she qualified for the curriculum needs of the school. In particular, she was the only educator who was qualified and could teach life skills.
4.9 She did not know all the procedures laid down in Resolution No.6. However, according to Resolution No. 6 curriculum needs of the school should be taken into consideration. This was not done, for she is the only educator in the English department to be declared in excess. Moreover, Circular No. 125 of 1998 provides that life skills educators, among others, should not be automatic choices when institutions have to determine which educators are affected by the rationalisation process.
5 . ARGUMENT OF THE PARTIES
5.1 The Employer contended that the Education Labour Relations Council, in which it and the employee unions are represented, had agreed to the rationalisation process. Resolution No.6 which lays down the procedure to the followed had been complied with.
6 . THE EMPLOYEE’S CONTENTION
6.1 The Employee contended that if the Employer had taken her workload into account, she would not have been declared in excess.
7 . ANALYSIS OF EVIDENCE
7.1 I must determine whether or not the Employer acted fairly
in declaring the Employee in excess.
7.2 There is evidence that there were many educators who taught English, but only two had English as the only subject. The Employee was one of the two. The other was Mr Khangale who had twenty (20) years experience, while the Employee had eighteen (18). For this reason, the Employee was declared in excess.
7.3 The Act emphasises the primacy of collective agreements. Clause 6.2.2 (b) of Regulation 6 provides that “The needs of the institution, more particularly in relation to the specific curriculum obligations of the institution, the number of classes, the timetable and the allocation of learners to classes should be taken into account”. I am satisfied that the Employer considered these factors.
7.4 Furthermore, Clause 6.2.2 (d) makes provision that “If a decision still has to be taken regarding two or more educators competing for the same post, the principle of “last-in first-out” (LIFO)shall be applied. The period of continuous service shall be the service period for the application of LIFO and shall include all continuous service rendered at any public educational institutions”. I am satisfied that the Employer complied with this provision when the Employee was selected to be declared in excess.
8.1 In the light of the above reasons, it is my considered opinion that the Employer complied with Regulation 6 when declaring the Employee in excess.
Dated at Johannesburg on 21 September 1999.
MZUNGULU MTHOMBENI (PROF)
INDEPENDENT MEDIATION SERVICES OF SOUTH AFRICA
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAME 009813 GP
APPLICANT M M MUKWEVHO
RESPONDENT DEPARTMENT OF EDUCATION
NATURE RIGHT SIZING
ARBITRATOR PROF MZUNGULU MTHOMBENI
DATE OF ARBITRATION 3 SEPTEMBER 1999
APPLICANT MR C R MALIVHADZA
RESPONDENT MR J THIPE
1 In the light of the above reasons, it is my considered opinion that the Employer complied with Regulation 6 when declaring the Employee in excess.
DATE OF AWARD 21 SEPTEMBER 1999