Case Number: PSES CAR 000224 WC
Province: Western Cape
Applicant: NICOLETTE BARENDS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: FORESHORE, CAPE TOWN
Award Date: 2 December 1999
Arbitrator: ADV L J KRIGE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 000224 WC
In the arbitration between:
NICOLETTE BARENDS APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . INTRODUCTION
This arbitration was conducted at the offices of the Western Cape Education Department, Foreshore, Cape Town, on Monday 29 November 1999. The Western Cape Education Department (‘WCED’) was represented by Mr K Petersen, and the disputant, Ms Barends was represented by Mr D Herandien of the CTPA.
2 . TERMS OF REFERENCE AND ISSUES IN DISPUTE
2.1 I was informed that the terms of reference was to be the same as the non-arb proceedings to resolve disputes between parties in the education sector, Western Cape, a copy of which was handed to me, with the necessary changes in detail to be applicable to this dispute.
2.2 The issue in dispute comprises a right sizing exercise conducted at the Arcadia Senior Secondary High School in Bonteheuwel in the Cape whereby the disputant was declared in excess. Should I not be convinced that the procedure was substantively and procedurally fair then I would have the power to order that the rationalisation process or part thereof be redone.
3 . SURVEY OF THE EVIDENCE AND ARGUMENT
3.1 This dispute revolves around whether clauses 5 and 6 of Resolution 6 of the 1998 of the Education Labour Relations Council viz the procedure for rationalisation and redeployment of educators in the provisioning of educator posts has been complied with. In view of the argument as it developed in this matter it seems to me that the following clauses are relevant and that this dispute revolves around the proper interpretation of an application of these clauses fo the dispute under consideration :
5.2 The Circuit Manger (the official immediately above the School Principal) together with Principals within his/her circuit/district, shall determine the post/s in excess of the approved establishments as well as the vacant post/s, as the case may be.
5.3 In making such a determination the Circuit/District Manager must take into account the specific curricular needs and circumstances of the educational institution.
5.4 Prior to the meeting with the other Principals and the Circuit/District Manager, all Principals must inform their respective staff on the procedure for rationalisation and redeployment and on the effect it will have on their respective staff establishments. This information must be accessible to all members of staff.
5.5 One representative per trade union party to Council shall be invited by the District/Circuit Manager to observe the process identified in paragraphs 5.2 and 5.3 above and at 6.2.2 below. All information used at this meeting shall be made available, in writing, to the observers and to their unions on request.
6.1 Subject to paragraph 5 above, at the request of the Head of a provincial education department, the Circuit/District Manager, together with the Principals, shall determine the number of posts in excess and the educator/s in excess.
6.2 The procedure for the determination of educators in excess shall be as follows :
6.2.1 The Principal, after consulting with the educator staff of the institution at a formal staff meeting, may recommend that educators who may be declared in excess be absorbed in vacancies that exist or will exist in the near future (not longer than 6 months) at that educational institution, to the head of the relevant provincial education department, via the circuit/district office, who may accept or reject such recommendation.
(Vacancies that will exists in the near future: refers to vacancies as a result of educators, at the particular institution, leaving as a result of retirement, boarding, resignation, promotion and employer initiated discharges, where the date of exist is known).
6.2.2 After considering paragraph 6.2.1 above, the Circuit/District Manager together with Principals shall identify the educators in excess, taking into account the following :
(a) The views of the educator staff of the institution as expressed at a formal staff meeting convened by the Principal;
(b) 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.
3.2 It is not argued that these further provisions not referred to above were not compiled with.
3.3 Disputant had been teaching for 11 years having majored in physical education and history and she had also been teaching English for the last 9 years. However she had been requested to help out in the English Department and consequently had been teaching English.
3.4 It seems to me that upon a proper construction of paragraphs 5.2, 5.3, 5.4 and 5.5 above that the trade unions observe the process and that all information shall be made available in writing to the observers and the unions on request. It seems as if there was a meeting in April 1999 whereat the information relating to the procedure for rationalisation and redeployment and the effect it will have on their respective staff establishments was made available to members of the staff. Disputant complaints that it was only at the meeting itself that it was made available. Be that as it may she stated that she didn’t really feel the need to say anything because they could see how many teachers were needed per subject. She stated further that if she had been told that there were subjects to be declared in excess then she would have intervened with a discussion. She knew the topic for discussion. It was pointed out that in the English Department although there were 6 permanent members only 5 had been considered for redeployment and that the “behoefte/opvoeders” was 3.5. This must have been clear that at least one post was going to be declared in excess in the English Department.
3.5 In any event it seems to me as if the disputant was given an opportunity to have her views recorded and passed on to the Circuit Manager for consideration (see para 6.2.2 above) but did not avail herself of such opportunity.
3.6 It may well be that there are no written records that were forwarded to the Circuit Manger for consideration in determining the actual educators in excess as opposed to the posts in excess. Insofar as the disputant elected not to say anything I would have to be convinced that there were material facts that should have been placed in front of the Circuit Manager before he could properly exercise his discretion. Insofar as there are no facts before me I am unable to find that there was a material misdirection and a flaw in the process.
3.7 In any event the information that the disputant complaints that should have been placed in front of the Circuit Manager, i.e. that she was a physical education specialist and that this was not properly considered is in any event not borne out by the evidence. If I refer to the minutes of the right-sizing meeting of educators at Arcadia High School held at the Area Office on Monday, 3 May 1999, exhibit “C” the consideration of the English Department in which the post and educator that form the subject matter of this arbitration, is discussed as follows :
“5.3.2 English Department
18.104.22.168 In this department there are 5 educators who compete for 4 posts: Mrs Dames, Mrs Johnson, Ms Fortuin, Ms Carolissen and Mrs Barends.
22.214.171.124 Mrs Johnson is the 1st language senior teacher who operates up to Grade 12.
126.96.36.199 Mrs Dames is the 2nd language specialist who operates up to Grade 12.
188.8.131.52 Ms Fortuin offers both 1st and 2nd language.
184.108.40.206 Ms Carolissen is the needlework specialist who assist with English and as NW specialist is a key person.
220.127.116.11 Miss N Barends operates in English department, while she is really a Physical Education specialist.
18.104.22.168 She was allocated English classes in the Junior Secondary phase to make up her time.
22.214.171.124 Consequently Mrs N Barends is considered as least meeting the school’s curricular needs in this department and therefore declared in excess.”
3.8 That Mrs Barends’ status as a physical education specialist was considered appears from paragraph 126.96.36.199 above.
3.9 It was further argued by Mr Herandien that Mr Slingers, the Circuit Manager, who testified for the Department, conceded that specialists should have been utilised in their field and that there was an error on the part of Mr Slingers by failing to utilise the disputant’s speciality. Consequently I would have to consider the detailed reasoning of Mr Slingers. He testified that a distinction was drawn between Woodwork and Needlework and Physical Education as specialist subjects on the basis that the former two were examination subjects whereas the latter was not. Mr Herandien argued that Physical Education was an important speciality because students could be hurt on the exercises. Similarly it may be argued that the core need of a proper education should be directed towards passing matric examination and thereby providing skills for life. Whilst physical education may be an important skill for like I cannot find that it amounts to a misdirection to conclude that the examination subjects should carry more weight than non-examination subjects however important they may be.
3.10 It is argued on behalf of the disputant that the staff had not given their views and that there was no evidence and minutes of this. I would have to be convinced that there were material views that were made of which there was a failure to properly consider. Of this I am not convinced. Mere failure to provide minutes, in itself would not convince me that a procedural and substantive injustice had occurred.
3.11 It seems to me that the determination of the post in excess was substantively and procedurally fair and that no misdirection in this process have been shown. The evidence should have been from the trade union representative who attended these meetings. However such evidence was not tendered before me. Neither was I shown any material misdirection in determining the post in excess. In relation to the educator who was declared in excess similarly I can find no error in the consultation process with the disputant and the staff. In any event each teacher gave their profile and it was stated that their views were considered. Insofar as the disputant says that she did not raise her views at the consultation meeting it should be noted that in any event the views that she did express at the arbitration relating to what factors should have been considered especially in relation to Deputy Principal Gilliland and Gallie who were declared in excess, does not further advance her case. Nor would these have amounted to a material misdirection not to consider. Similarly with her attack on Mrs Carolissen who teaches Needlework and Home Economics, I can find no failure to properly consider this in the minutes of the meeting of 3 May 1999, and in any event, there were reasoned and rational reasons for not redeploying her.
3.12 That the process had been conducted in 1998, and then a dispute lodged as a result of which the rationalisation process in this case was a repetition and in 1999 the disputant was classified in the English Department, cannot be shown to be a misdirection, nor the fact that Mrs Carolissen who was not in the English Department in 1998 but was now included amounted to a misdirection. The proper factors that are to be considered are those that exist at the time of the rationalisation process in question.
3.13 In the circumstances I can find no substantive nor procedural irregularities in the determination of the post and the educator in excess.
4 . AWARD
In the circumstances the disputant’s application is dismissed.
ADV L J KRIGE
Date : 2 December 1999 EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES CAR 000224 WC
APPLICANT NICOLETTE BARENDS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR ADV L J KRIGE
DATE OF ARBITRATION 29 NOVEMBER 1999
VENUE FORESHORE, CAPE TOWN
APPLICANT MR D HERANDIEN (CTPA)
RESPONDENT MR K PETERSEN
The disputant’s application is dismissed
DATE OF AWARD 2 DECEMBER 1999