Case Number: PSES 04/99 0269 WC
Province: Western Cape
Applicant: H S ARENDSE
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Venue: OFFICES OF WCED
Award Date: 17 December 1999
Arbitrator: D J G WOOLFREY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 04/99 0269 WC
In the arbitration between:
H S ARENDSE APPLICANT
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
1 . HEARING AND REPRESENTATION
1.1 The arbitration was held at the offices of the Western Cape Education Department (‘WCED’) on 2 December 1999. The WCED was represented by Mr K Petersen, and Mr Arendse (‘the grievant’) by Ms Ralarala of the South African Democratic Teachers’ Union (‘SADTU’)
1.2 My terms of reference, agreed to by the parties at these proceedings, were as follows :
1.2.1 To decide whether the WCED had acted lawfully and fairly when it revoked the notification of 28 October 1997 granting Mr Arendse permanent status;
1.2.2 If it was found that the WCED did not act both fairly and lawfully, the arbitrator should grant appropriate relief.
2 . SURVEY OF EVIDENCE
2.1 The particulars of the grievant’s employment with the WCED, which are relevant to the current dispute, are as follows :
2.1.1 The grievant was employed by the WCED on a series of temporary contracts, at a number of schools, from 1992 until June 1998. It was common cause that the grievant did not occupy a substantive vacant post prior to 1 July 1996, and that he therefore failed to qualify for ‘protected status’ under Resolution 3 of 1996.
2.1.2 On 1 October 1996 the grievant was appointed to the Ikamvaletu Secondary School in a substantive vacant post. The appointment was on a temporary basis. In November 1997 he was informed that his status had been changed to permanent. The events leading up to the notification of change of status were as follows : On the morning of 14 November 1997 the Principal called the grievant into his office and told him that he had a surprise for him, the details of which would be made known at a meeting of the staff later that morning. At the staff meeting, the Principal announced that the grievant had been granted permanent status. After the meeting the grievant was handed a copy of a letter signed on behalf of the Head of the WCED. The letter, which is dated 18 October 1997, is addressed to him and states the following -
‘It is with pleasure that I have to inform you that in accordance with Circular 68/1996 dated 15 July 1996 approval has been granted for your permanent appointment as Teacher with effect from 1 January 1997'.
contract. It is therefore my finding that the WCED did not act lawfully when it revoked the grant of permanent appointment.
2.2 Was the revocation of permanent status fair? I believe that it was. The considerations are different when fairness (rather than legality) is in issue. In applying fairness, an arbitrator is not bound to the strictures of the common law. Fairness calls for a value judgement, based on the arbitrator’s assessment of the appropriate norms. An important consideration in this matter is that the employer and employee parties (through their collective bargaining representatives) have chosen to regulate the procedures for appointments (Resolution 13 of 1995) and the criteria for effecting changes to status (Resolution 3 of 1996). It is in the interest of sound administration that the WCED should seek to give proper effect to these Resolutions. Taking remedial action to correct improper application of these Resolutions is not necessarily unfair. In the present matter, the grievant had not in any way acted to his prejudice as a result of the appointment. If he had, for example, if he had turned down another job, the position would be very different. But in this matter, the revocation merely reversed a fortuitous error that worked in his favour. To undo such an error was not, in my opinion, unfair.
2.3 So much for the substantive fairness of the revocation. The way the matter was handled leaves much to be desired. The grievant was only informed of the revocation after he had made certain inquiries. He was not given any form of hearing before the decision was taken. The audi alteram partem principle, so well entrenched in our law by now, requires that a decision-maker who is clothed with state power should ‘hear the other side’ before he or she takes a decision that will affect vested rights and interests. In this matter, the grievant should have been informed that an error had occurred, and should have been given an opportunity to influence the decision to revoke the grant of permanent status. Participation legitimises a decision, and the grievant may have been much happier to live with it if he had been properly heard prior to the decision being taken. Instead, he was presented with a fait accompli. No proper explanation was tendered to the grievant, until he lodged a dispute when a letter (dated 14 January 1999) was prepared setting out the reasons. These reasons, at the very least, should have been given to the grievant when the decision was taken.
3 . REMEDY
3.1 My terms of reference were to consider both the legality and the fairness of the decision. I have found that the decision to revoke was unlawful in that it constituted a repudiation of an agreement. The contractual measure of damages (the equivalent of one calendar month’s notice) should be applied. I have also found that the decision was procedurally unfair. A further two month’s compensation should be awarded for the procedural unfairness.
3.2 It is therefore ordered that the WCED pay the grievant the equivalent of three month’s compensation by no later than 31 January 2000.
D J G WOOLFREY
Date : 17 December 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 04/99 0269 WC
APPLICANT H S ARENDSE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR D J G WOOLFREY
DATE OF ARBITRATION 2 DECEMBER 1999
VENUE OFFICES OF WCED
APPLICANT MS RALARALA (SADTU)
RESPONDENT MR K PETERSEN
My terms of reference were to consider both the legality and the fairness of the decision. I have found that the decision to revoke was unlawful in that it constituted a repudiation of an agreement. The contractual measure of damages (the equivalent of one calendar month’s notice) should be applied. I have also found that the decision was procedurally unfair. A further two month’s compensation should be awarded for the procedural unfairness.
It is therefore ordered that the WCED pay the grievant the equivalent of three month’s compensation by no later than 31 January 2000.
DATE OF AWARD 17 DECEMBER 1999