PSES CAR 000223 WC
PSES CAR 000223 WC
Award Date:
9 December 1999
Case Number: PSES CAR 000223 WC
Province: Western Cape
Applicant: M PARKER
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 9 December 1999
Arbitrator: D F MIAS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 000223 WC
In the arbitration between:
M PARKER APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . INTRODUCTION
1.1 Much of the factual detail in this matter is not in dispute. Mr Parker had been appointed principal of Portlands High School on 1 July 1994. There were difficulties at the school in 1996 when various teachers banded together to make his continued position intolerable. Thus there were various forms of attack on his authority as principal such as protests, occupation of his office and various minor assaults or threats thereof.
1.2 It should be stated at the outset that there was no allegation by the Education Department of any incompetence on Mr Parkers’s part. On the other hand it appears that it was his rigorous attitude to discipline that lead to the reaction of the staff at Portlands High School. Thus, Mr Parker laid charges of misconduct with the Department against various educators at the school but complains that to the date of the arbitration no steps had been taken against any individual as far as he was aware.
1.3 By August 1996 Mr Parker’s position at the school had become intolerable. Mr Parker went off on special leave at the end of the third term on 20 September 1996. This was leave with full pay and without loss of benefits. It needs to be stated that the Education Department was faced with similar problems at a number of schools in the Western Cape. These difficulties at the schools seen to relate more to the nature of the relations between principals and their staff and/or teachers. Principals complained of absenteeism and other forms of misconduct on the part of the educators. Educators responded by agitating for the removal of principals on the basis that they were despots, often in alliance with students in this process. I make no comment as to the rights and wrongs of these struggles at the schools.
1.4 Mr Parker approached the Education Department. Apparently his area manager suggested sick leave or special leave.
1.5 Mr Parker approached the Department for a transfer to another school. He stated that the response of the Department was to give him a bulletin indicating vacancies for which he could apply. It is in terms of this bulletin that the applied for a post at Pelican Park Secondary School. He was duly interviewed by the governing body of the school and offered the post, which he accepted.
1.6 The problem in this matter is that the post at Pelican Park Secondary School was classified in the education bulletin as a “S3" post whereas his post at Portlands High School was a “S4" post. There figures S3 and S4 indicate the grading of the school. S4 carrying a greater number of pupils. This in turn means that a principal of an S4 school earns a higher salary than one of an S3 school.
2 . TERMS IN REFERENCE
2.1 This matter is referred for arbitration in terms of the Dispute Resolution Procedures of the Education Labour Relations Council. The relevant resolution of the council provides that an arbitrator’s terms of reference are to arbitrate any dispute referred to him/her and to award a remedy which he/she considers fair and/or appropriate in order to settle the dispute.
2.2 The parties in this matter submitted a pre-arbitrator agreement from which it appears that they are agreed that I have jurisdiction to hear the dispute in terms of Resolution 7 of 1997 of the bargaining council. This agreement furthermore stipules that the issue to be decided by me is whether the Education Department acted fairly and lawfully in reducing the salary of Mr Parker as from 1 January 1998.
2.3 The dispute in this matter may be characterised as either one relating to a unilateral change in terms and conditions of employment as contemplated in Section 64 (4) of the Labour Relations Act 1995 or an unfair labour practice relating to promotion, demotion or the provision of benefits as set out in Item 2(1)(b) of Schedule 7 to the Labour Relations Act. In terms of the pre-arbitration agreement between the parties I am not required to decide whether the matter is an interest dispute or not as the parties have agreed to the submission to arbitration. The matter is therefore dealt with on that basis.
3 . THE EVIDENCE FOR THE EMPLOYEE
3.1 Mr Majiet Parker gave evidence and stated that he had been a teacher since 1975, that though he was appointed to Pelican Park Secondary School as from January 1997, he was for the entire year of 1997 paid his salary as an S4 principal. He considered the reduction in salary as from January 1998 to be unfair. He submitted that he had been motivated to apply for the post at Pelican Park Secondary School by officials of the Education Department. He stated further that he was unaware that there would be a drop in salary attached to his new position as the school had fewer pupils.
3.2 At Mr Parker’s interview by the governing body for the new position at Pelican Park, there was no discussion as to salary. Although he was informed by letter dated 12 December 1996 that full particulars as to his new position would follow, this never arrived. Mr Parker then went to the Education Department where he was ultimately informed at the salary section that there would be a reduction in salary. He stated that he had been informed by a director of the Education Department, a certain Mr Southgate, that if he did not report for duty at the new school in January 1997, misconduct charges would be brought against him.
3.3 Mr Parker added that as he continued to receive his old salary for 12 months in 1997, he assumed that everything was all right. The reduction in salary was substantial and he estimated it to be approximately R3 5000 per month. This worked undue hardship on him as his wife had at that stage stopped working in order to give more attention to their children. He had believed that his salary would not change.
3.4 Mr Parker was cross-examined and it was put to him that he had at no stage been forced to apply for the new position. This he conceded. He added that it was only in 1997 that he became aware that his salary would drop. He was asked further whether he was aware that there was a difference in salary at various post levels in the education sector. This he conceded. Therefore, a teacher post level 1 received less than a teacher at post level 2 or 3. When asked in cross-examination whether a teacher in post level 3 were to apply for a position at post level 2 whether there would be a reduction in salary, Mr Parker stated that no educator in his right mind would apply for such a lower post. It was put to him that a similar position prevailed with regard to the ranking of school principals at S3 and S4 where a school of more than 631 pupils was ranked a S4 and the principal receive greater pay. In essence Mr Parker protested that he did not now of this difference in salary.
3.5 It was further put to Mr Parker in cross-examination that already on 9 December 1996 he had written to the Department requesting that he be maintained at the same salary as in his earlier post, and that he had in fact received the reply on 12 December 1996 indicating that there would in fact be a drop in salary. In addition on 13 January 1997 he was sent a telegram by the Department informing him that his request for retention of rank and salary had not been approved and that in the event of his taking up the position at Pelican Park, the reduction would follow. The telegram further mentions that in the event of his not seeing his way clear to accepting the principal S3 position, he was at liberty to apply for the cancellation of that appointment. Mr Parker’s evidence is that he was informed by Mr Southgate that if he did not take up the position at Pelican Park, he could face misconduct charges.
3.6 Mr Parker was also clear that he wished to get away from Portlands High School. His special leave at the end of September had been specifically granted in order to ensure his physical safety, to prevent disruption of the normal functioning of the school and to finalise a departmental investigation. The letter also mentions that the Department intended to put a plan of action into place to resolve the situation at the school. It was repeatedly put to Mr Parker that he could have stayed as principal of Portlands, not necessary attend school as principal but stay away from the school until such time that the conflict had been resolved by the Department. The Department put it to him that the last of its cases of such disrupted management at schools had been resolved only a short while before the arbitration in this matter. There had been a number of such instances where principals had been unable to perform their functions but have been negotiated back into their positions. It was therefore submitted that Mr Parker had of his own volition applied for another post in order to leave Portlands High School.
4 . THE EVIDENCE OF THE EMPLOYER
The Department called Mr Southgate who basically refuted any suggestion that he had threatened Mr Parker with disciplinary action were he not to report to Pelican Park School. He also believed that had Mr Parker given the Department sufficient time and opportunity to resolve mattes he might very well still have been at Portands High School, particularly if he had accepted that he could be on special leave until such time as matters were resolved.
5 . EVALUATION
5.1 Mr Parker has been an educator for a long time. He was aware, on his own evidence, of various post levels for educators within the Department. He was aware that different salaries are attached to different post levels. I considered his argument that the education bulletin (in so far as it states S3 and S4 as indicators of the sizes of the schools) was something that he was not aware of. I find it extremely difficult to accept that he did not know that there was a difference in salary attached to being principal of a smaller school. The point is, he did not ask anybody before applying. He really wanted to get away from Portland High School. That was understandable.
5.2 Mr Parker almost immediately after his appointment at Pelican Park sets about writing a letter to the Department in fact pleading to be employed at the same rank and salary as before. To me this indicates that he was all along aware of what the true position was.
5.3 Mr Parker was somewhat dis-ingenious when he stated in his evidence that he first came to hear of the difference in salary in 1997. Clearly he was aware of that difference at the beginning of December already in the previous year. Whilst I must have every sympathy for the situation in which he found himself, somewhere between the proverbial rock and hard place. I do not accept that he was unaware of what he was letting himself into. He had earlier requested a transfer and had been told that that was not possible. A transfer would have meant moving on the same terms and conditions.
5.4 In the view that I have of the matter I find it unnecessary to decide whether Mr Southgate in fact threatened misconduct proceedings. I believe Mr Parker made his decision to move before that and that his desire all along was to get away from Poartlands High School. The tenor of his evidence throughout was to get away from Portlands High School. In any event, Mr Parker was sent a telegram informing him that he need not take up the new position, could cancel it and by implication stay on as principal of Portlands High School. Even if he had been threatened with misconduct by Southgate, I believe that he had sufficient basis, in writing, to ignore any threat from Southgate.
5.5 No evidence was led in this matter as to whether the fact that there are more or less than 631 pupils at a school necessary implies more or less work for a principal. I therefore have no basis to make a decision as to whether there has been an unfair demotion or failure to pay a certain benefit. Mr Parker appears to be a well qualified, capable and presentable educator who genuinely sees himself as having been wronged in the situation. This is entire understandable. Mr Parker complains of a very low level of interest by the Department in his own position at the previous school. His difficulties were not given any attention and he clearly feels neglected. Now he has to pay the price by suffering a reduction in salary. There is no evidence before me that he mismanaged Portlands High school. However my view of all the evidence and argument presented before me is that Mr Parker is in fact the author of his own new position. It is unfortunate that the regulatory framework applicable to his situation does not allow for some degree of flexibility. If it is so that he was compelled to leave Portlands High School due to circumstances beyond his control, then this is the sort of situation for which a special allowance should be made.
6 . AWARD
It is therefore found that there has been no unfair conduct on the part of the Education Department in reducing Mr Parker’s salary as from January 1998. I do not believe that he can legitimately be heard to say that he had an expectation that the salary would continue as before or on an indefinite basis when he had been told in writing and at the beginning that it would be reduced. The Department’s administrative failure to reduce the salary immediately simply worsened an already sad state of affairs.
_______________________
ARBITRATOR
D F MIAS
Date : 9 December 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CAR 000223 WC
APPLICANT M PARKER
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR D F MIAS
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT
RESPONDENT
AWARD:
It is therefore found that there has been no unfair conduct on the part of the Education Department in reducing Mr Parker’s salary as from January 1998. I do not believe that he can legitimately be heard to say that he had an expectation that the salary would continue as before or on an indefinite basis when he had been told in writing and at the beginning that it would be reduced. The Department’s administrative failure to reduce the salary immediately simply worsened an already sad state of affairs.
DATE OF AWARD 9 DECEMBER 1999
Province: Western Cape
Applicant: M PARKER
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 9 December 1999
Arbitrator: D F MIAS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 000223 WC
In the arbitration between:
M PARKER APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
1 . INTRODUCTION
1.1 Much of the factual detail in this matter is not in dispute. Mr Parker had been appointed principal of Portlands High School on 1 July 1994. There were difficulties at the school in 1996 when various teachers banded together to make his continued position intolerable. Thus there were various forms of attack on his authority as principal such as protests, occupation of his office and various minor assaults or threats thereof.
1.2 It should be stated at the outset that there was no allegation by the Education Department of any incompetence on Mr Parkers’s part. On the other hand it appears that it was his rigorous attitude to discipline that lead to the reaction of the staff at Portlands High School. Thus, Mr Parker laid charges of misconduct with the Department against various educators at the school but complains that to the date of the arbitration no steps had been taken against any individual as far as he was aware.
1.3 By August 1996 Mr Parker’s position at the school had become intolerable. Mr Parker went off on special leave at the end of the third term on 20 September 1996. This was leave with full pay and without loss of benefits. It needs to be stated that the Education Department was faced with similar problems at a number of schools in the Western Cape. These difficulties at the schools seen to relate more to the nature of the relations between principals and their staff and/or teachers. Principals complained of absenteeism and other forms of misconduct on the part of the educators. Educators responded by agitating for the removal of principals on the basis that they were despots, often in alliance with students in this process. I make no comment as to the rights and wrongs of these struggles at the schools.
1.4 Mr Parker approached the Education Department. Apparently his area manager suggested sick leave or special leave.
1.5 Mr Parker approached the Department for a transfer to another school. He stated that the response of the Department was to give him a bulletin indicating vacancies for which he could apply. It is in terms of this bulletin that the applied for a post at Pelican Park Secondary School. He was duly interviewed by the governing body of the school and offered the post, which he accepted.
1.6 The problem in this matter is that the post at Pelican Park Secondary School was classified in the education bulletin as a “S3" post whereas his post at Portlands High School was a “S4" post. There figures S3 and S4 indicate the grading of the school. S4 carrying a greater number of pupils. This in turn means that a principal of an S4 school earns a higher salary than one of an S3 school.
2 . TERMS IN REFERENCE
2.1 This matter is referred for arbitration in terms of the Dispute Resolution Procedures of the Education Labour Relations Council. The relevant resolution of the council provides that an arbitrator’s terms of reference are to arbitrate any dispute referred to him/her and to award a remedy which he/she considers fair and/or appropriate in order to settle the dispute.
2.2 The parties in this matter submitted a pre-arbitrator agreement from which it appears that they are agreed that I have jurisdiction to hear the dispute in terms of Resolution 7 of 1997 of the bargaining council. This agreement furthermore stipules that the issue to be decided by me is whether the Education Department acted fairly and lawfully in reducing the salary of Mr Parker as from 1 January 1998.
2.3 The dispute in this matter may be characterised as either one relating to a unilateral change in terms and conditions of employment as contemplated in Section 64 (4) of the Labour Relations Act 1995 or an unfair labour practice relating to promotion, demotion or the provision of benefits as set out in Item 2(1)(b) of Schedule 7 to the Labour Relations Act. In terms of the pre-arbitration agreement between the parties I am not required to decide whether the matter is an interest dispute or not as the parties have agreed to the submission to arbitration. The matter is therefore dealt with on that basis.
3 . THE EVIDENCE FOR THE EMPLOYEE
3.1 Mr Majiet Parker gave evidence and stated that he had been a teacher since 1975, that though he was appointed to Pelican Park Secondary School as from January 1997, he was for the entire year of 1997 paid his salary as an S4 principal. He considered the reduction in salary as from January 1998 to be unfair. He submitted that he had been motivated to apply for the post at Pelican Park Secondary School by officials of the Education Department. He stated further that he was unaware that there would be a drop in salary attached to his new position as the school had fewer pupils.
3.2 At Mr Parker’s interview by the governing body for the new position at Pelican Park, there was no discussion as to salary. Although he was informed by letter dated 12 December 1996 that full particulars as to his new position would follow, this never arrived. Mr Parker then went to the Education Department where he was ultimately informed at the salary section that there would be a reduction in salary. He stated that he had been informed by a director of the Education Department, a certain Mr Southgate, that if he did not report for duty at the new school in January 1997, misconduct charges would be brought against him.
3.3 Mr Parker added that as he continued to receive his old salary for 12 months in 1997, he assumed that everything was all right. The reduction in salary was substantial and he estimated it to be approximately R3 5000 per month. This worked undue hardship on him as his wife had at that stage stopped working in order to give more attention to their children. He had believed that his salary would not change.
3.4 Mr Parker was cross-examined and it was put to him that he had at no stage been forced to apply for the new position. This he conceded. He added that it was only in 1997 that he became aware that his salary would drop. He was asked further whether he was aware that there was a difference in salary at various post levels in the education sector. This he conceded. Therefore, a teacher post level 1 received less than a teacher at post level 2 or 3. When asked in cross-examination whether a teacher in post level 3 were to apply for a position at post level 2 whether there would be a reduction in salary, Mr Parker stated that no educator in his right mind would apply for such a lower post. It was put to him that a similar position prevailed with regard to the ranking of school principals at S3 and S4 where a school of more than 631 pupils was ranked a S4 and the principal receive greater pay. In essence Mr Parker protested that he did not now of this difference in salary.
3.5 It was further put to Mr Parker in cross-examination that already on 9 December 1996 he had written to the Department requesting that he be maintained at the same salary as in his earlier post, and that he had in fact received the reply on 12 December 1996 indicating that there would in fact be a drop in salary. In addition on 13 January 1997 he was sent a telegram by the Department informing him that his request for retention of rank and salary had not been approved and that in the event of his taking up the position at Pelican Park, the reduction would follow. The telegram further mentions that in the event of his not seeing his way clear to accepting the principal S3 position, he was at liberty to apply for the cancellation of that appointment. Mr Parker’s evidence is that he was informed by Mr Southgate that if he did not take up the position at Pelican Park, he could face misconduct charges.
3.6 Mr Parker was also clear that he wished to get away from Portlands High School. His special leave at the end of September had been specifically granted in order to ensure his physical safety, to prevent disruption of the normal functioning of the school and to finalise a departmental investigation. The letter also mentions that the Department intended to put a plan of action into place to resolve the situation at the school. It was repeatedly put to Mr Parker that he could have stayed as principal of Portlands, not necessary attend school as principal but stay away from the school until such time that the conflict had been resolved by the Department. The Department put it to him that the last of its cases of such disrupted management at schools had been resolved only a short while before the arbitration in this matter. There had been a number of such instances where principals had been unable to perform their functions but have been negotiated back into their positions. It was therefore submitted that Mr Parker had of his own volition applied for another post in order to leave Portlands High School.
4 . THE EVIDENCE OF THE EMPLOYER
The Department called Mr Southgate who basically refuted any suggestion that he had threatened Mr Parker with disciplinary action were he not to report to Pelican Park School. He also believed that had Mr Parker given the Department sufficient time and opportunity to resolve mattes he might very well still have been at Portands High School, particularly if he had accepted that he could be on special leave until such time as matters were resolved.
5 . EVALUATION
5.1 Mr Parker has been an educator for a long time. He was aware, on his own evidence, of various post levels for educators within the Department. He was aware that different salaries are attached to different post levels. I considered his argument that the education bulletin (in so far as it states S3 and S4 as indicators of the sizes of the schools) was something that he was not aware of. I find it extremely difficult to accept that he did not know that there was a difference in salary attached to being principal of a smaller school. The point is, he did not ask anybody before applying. He really wanted to get away from Portland High School. That was understandable.
5.2 Mr Parker almost immediately after his appointment at Pelican Park sets about writing a letter to the Department in fact pleading to be employed at the same rank and salary as before. To me this indicates that he was all along aware of what the true position was.
5.3 Mr Parker was somewhat dis-ingenious when he stated in his evidence that he first came to hear of the difference in salary in 1997. Clearly he was aware of that difference at the beginning of December already in the previous year. Whilst I must have every sympathy for the situation in which he found himself, somewhere between the proverbial rock and hard place. I do not accept that he was unaware of what he was letting himself into. He had earlier requested a transfer and had been told that that was not possible. A transfer would have meant moving on the same terms and conditions.
5.4 In the view that I have of the matter I find it unnecessary to decide whether Mr Southgate in fact threatened misconduct proceedings. I believe Mr Parker made his decision to move before that and that his desire all along was to get away from Poartlands High School. The tenor of his evidence throughout was to get away from Portlands High School. In any event, Mr Parker was sent a telegram informing him that he need not take up the new position, could cancel it and by implication stay on as principal of Portlands High School. Even if he had been threatened with misconduct by Southgate, I believe that he had sufficient basis, in writing, to ignore any threat from Southgate.
5.5 No evidence was led in this matter as to whether the fact that there are more or less than 631 pupils at a school necessary implies more or less work for a principal. I therefore have no basis to make a decision as to whether there has been an unfair demotion or failure to pay a certain benefit. Mr Parker appears to be a well qualified, capable and presentable educator who genuinely sees himself as having been wronged in the situation. This is entire understandable. Mr Parker complains of a very low level of interest by the Department in his own position at the previous school. His difficulties were not given any attention and he clearly feels neglected. Now he has to pay the price by suffering a reduction in salary. There is no evidence before me that he mismanaged Portlands High school. However my view of all the evidence and argument presented before me is that Mr Parker is in fact the author of his own new position. It is unfortunate that the regulatory framework applicable to his situation does not allow for some degree of flexibility. If it is so that he was compelled to leave Portlands High School due to circumstances beyond his control, then this is the sort of situation for which a special allowance should be made.
6 . AWARD
It is therefore found that there has been no unfair conduct on the part of the Education Department in reducing Mr Parker’s salary as from January 1998. I do not believe that he can legitimately be heard to say that he had an expectation that the salary would continue as before or on an indefinite basis when he had been told in writing and at the beginning that it would be reduced. The Department’s administrative failure to reduce the salary immediately simply worsened an already sad state of affairs.
_______________________
ARBITRATOR
D F MIAS
Date : 9 December 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CAR 000223 WC
APPLICANT M PARKER
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR D F MIAS
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT
RESPONDENT
AWARD:
It is therefore found that there has been no unfair conduct on the part of the Education Department in reducing Mr Parker’s salary as from January 1998. I do not believe that he can legitimately be heard to say that he had an expectation that the salary would continue as before or on an indefinite basis when he had been told in writing and at the beginning that it would be reduced. The Department’s administrative failure to reduce the salary immediately simply worsened an already sad state of affairs.
DATE OF AWARD 9 DECEMBER 1999