Case Number: PSES WC
Province: Western Cape
Applicant: ANGELA JACOBS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 2 February 2000
Arbitrator: KAMLESH KER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES WC
In the arbitration between:
ANGELA JACOBS APPLICANT
THE DEPARTMENT OF EDUCATION RESPONDENT
1 . ISSUES TO BE DECIDED
1.1 Whether the dismissal of Mrs. Jacobs for failure to attend the contractually required number of training sessions whilst under probation was substantively fair.
1.2 Whether, for the purposes of calculating compensation, Mrs. Jacobs' contract was the same as Mr. Stevens' contract.
1.3 Whether an order for costs should be made against Mrs. Jacobs for an unreasonable referral.
2. BACKGROUND TO THE ISSUE:
Mrs. Jacobs was employed by the Adult Basic Education and Training (ABET) project, a project which falls under the WCED. The project trains trainers who in turn train Educators (trained professional teachers) from the WCED with the necessary skills to teach adults who have not been taught to read and write. In terms of the conditions of appointment, all probationers were required to attend at least 80 per cent of the training sessions scheduled. When it became apparent that Mrs. Jacobs had failed to attend the required number of sessions and that there was no way she could have made up the sessions even if she attended all the remaining sessions, the WCED wrote to her, informing her that her contract had been terminated on account of the said failure. The WCED conceded that the dismissal had been procedurally unfair in that Mrs. Jacobs had not been given a hearing. Mrs. Jacobs is aggrieved by the fact that the Department had offered to pay her for all the remaining hours other contract which totaled 160 hours (from 1/1/99 to 30/6/99) whilst Mr. Colin Stevens who had been appointed for 320 hours (from 1/1/99 to 31/12/99) had been paid for the remaining 320 hours. The WCED claimed that Mr. Stevens had been appointed under a full year's contract as he had already been evaluated whereas Mrs. Jacobs was still on probation until 30/6/99- Her appointment would have been confirmed had she successfully completed the required training and been successfully evaluated during the probationary period. She did not dispute that she did not attend the required number of sessions. She however claimed that she had difficulties arranging a babysitter for her children and had financial difficulties and was therefore unable to attend.
3. SUMMARY OF EVIDENCE:
3.1 The employer called one witness, Anneline Coetzee, Chief Planner from ABET, The employee called two witnesses, Mr Colin Stevens, the other dismissed employee and Mrs. Lilian Landau, the training co-ordinator. She also testified on her own behalf. Their evidence can be summarized as follows:
3.1.1 Mrs. Jacobs had been trained during 1998 on a less formal basis. In November, 1998, all the trainees had been called to a meeting where they were told that ABET would be training on a more formal basis. They were told that if they failed to attend at least 80% of the sessions, they would be dismissing themselves.
3.1.2 During her interview, Mrs. Jacobs was specifically asked whether she would have any difficulty in traveling or in fulfilling her obligations m terms of the contract and she said she had none.
3.1.3 In a letter dated 28 December, 1998, Mrs. Jacobs was informed that her probation period as an ABET trainer had been extended for 160 hours starting on 1 /I /99 and ending on 30/6/99. She was requested to attend the capacity building sessions for new trainers and advised to arrange an evaluation with her regional training co-ordinator as soon as is convenient for her. She was referred to the details other employment conditions, duties and responsibilities, which were enclosed. The enclosed conditions stated that she must attend at least &0% of all training sessions conducted by the WCED. It further pointed out that failure to attend would be a breach of the contract. The conditions of employment stated that the period of probation was from 1/1/99 to 30/6/99 and if confirmed, employment would be from 1/1/99 to 30/12/99. At no stage prior to her dismissal, did Mrs. Jacobs complain about the letter.
3.1.4 Unlike Mr. Stevens, she had not been evaluated during the previous year. Those who had already been evaluated successfully were appointed for 320 hours for the full year. Mrs. Jacobs did not request an evaluation during the previous year (1998). Had she done so, and had she been successfully evaluated, she would not have been placed on probation and she would have been appointed for the full year (320 hours).
3.1.5 About 30 trainers were required to attend training sessions. They were given a time- table well in advance, of all the training sessions which had been scheduled until June. 1999. The venues were not indicated. The Training co-ordinator telephoned trainers prior to the events to remind them of the sessions and to supply details of the venue. The trainers were not paid for attending the "block," training sessions (lengthy 5 day sessions) but were paid for attending the other sessions.
3.1.6 Whilst they were being trained, they could train other educators and were paid for this (part of the 160 hours) at the rate of R82-45 per hour.
3.1.7 Of the 30 trainers, three persons did riot attend the required number of sessions, Mr. Stevens and Mrs. Jacobs being two of the three. None of the others seemed to have any difficulties regarding the training.
3.1.8 Mrs. Jacobs was expected to attend at least 80% of a total of 21 sessions. She had attended only five out of The 17 sessions by 5/5/99 when she was dismissed. Even if she had not been terminated on 5/5/99, it would not have been possible for her to make up 80% as the remaining 4 sessions (if she attended all 4), would have given her a total of 9 sessions.
3.1.9 The WCED had not been approached by Mrs. Jacobs about her personal difficulties. Mrs. Jacobs complained after she wag unable to attend a session or when the transport person called at her home to fetch her for the training session. No formal grievance had been lodged. As the trainers were training experienced and highly qualified teachers who in turn had to teach adults, it was imperative that the trainers attended at least 80% of the training.
3.1.10 Mrs. Jacobs claimed that she had not been properly advised of the venue of a three day session. Even if she were given the benefit of the additional three days, it would not have been possible for her to makeup a total of 80% (roughly 17 out of 21 sessions).
3.1.11 Mrs. Jacobs and Mr. Stevens contended that the training sessions were not very useful, that there was a lot of repetition in the training sessions, and that the training was not valuable.
3.1.12 Mrs Jacobs further claimed that it was difficult for her to pay a babysitter for her children when training sessions were conducted out of town. She was not paid to attend the block sessions and was therefore unable to pay a babysitter.
3.1.13 She also felt that the WCED did not afford her an opportunity to correct her behaviour as they did not give her a hearing.
3.1.14 After her dismissal, Mrs. Jacobs lodged a grievance. In a letter dated 24/08/99, the WCED therefore offered to pay compensation for the maximum number of remaining hours left in her contract, amounting to R9,894 before any deduction for tax. The WCED stated that it was of the opinion that if Mrs Jacobs was not satisfied with the offer, conciliation would not be feasable, and that the matter should be referred to arbitration, should she be agreeable. The matter was in fact referred directly to arbitration.
3.1.15 Mrs. Jacobs claimed that she was entitled to receive the same compensation which was paid to Mr. Stevens. He was paid for the maximum remaining hours of the full year, i.e. for an additional 160 hours. He was dismissed for the same reason.
3.1.16 The WCED argued that in the event that the Arbitrator should find in its favour, a costs award should be made against Mrs. Jacobs, for the following reasons:
188.8.131.52 She did not dispute that she had failed to attend the required number of training sessions, yet she continued to use the process to compare her situation with that of Mr. Stevens.
184.108.40.206 Furthermore, the Department had provided full reasons for its actions.
4. ASSESSMENT OF EVIDENCE AND ARGUMENT
4.1 The Labour Relations Act requires that probationers should i.e. be informed of the standard which is required of the probationer.
4.2 The Employer clearly informed the Employee in the letter of appointment that she was required to attend a minimum of 80% of the training sessions.
4.3 A detailed time-table of the training sessions was provided timeously. This was followed up by a reminder by the training co-ordinator. Transport was arranged.
4.4 At no stage did Mrs Jacobs complain that the expectations were unreasonable. Nor did she inform the employer in advance of her personal difficulties.
4.5 Of the 30 trainers who were required to attend the training, only three were unable to attend. None of the others seem to have found the standard unreasonable.
4.6 Both Mrs. Jacobs and Mr. Stevens seemed to think that the training was of no value and that seems to be the reason why Mrs. Jacobs did not attend.4.7 It is clear that the employer made the employee aware of the required standard and provided the necessary structure and support to enable the employee to comply or to report to in advance if the employee had any difficulties.
4.8 The employer applied the standard to all the trainees and had an objective standard by which non-compliance could be measured.
4.9 The employer has conceded that the dismissal was procedurally unfair. If the employer had held a hearing, would Mrs. Jacobs have had an opportunity to correct her behaviour or provide acceptable reasons for her failure to attend.?
4.10 It is clear that Mrs Jacobs would not have been able to "make up" the 80% even if a hearing was held promptly.
4.11 The reasons advanced by Mrs. Jacobs at the Arbitration hearing regarding her failure to attend are unconvincing. She claimed that it was due to her inability to afford a babysitter. Whilst one sympathizes with her personal circumstances, she was specifically asked in her interview whether she would have any difficulties with traveling and she said she had none. She accepted the terms and conditions of employment. She held a very responsible position. The problems she experienced were not unforeseeable or insurmountable.
5.1 I therefore find that even if Mrs. Jacobs had been afforded an opportunity to have a hearing, she would not have been in a position to provide convincing reasons for her failure TO attend the training sessions. Furthermore, the required standard of performance was clear and reasonable.
5.2 Could Mrs. Jacobs validly compare her contract with that of Mr. Stevens? The letter dated 28/12/98 was very clear that she was on PROBATION until 30/6/99. By contrast, Mr. Stevens' letter stated that he had been APPOINTED until 31/12/99. Mrs. Jacobs' letter stated that her total number of hours were 160 hours whilst Mr. Stevens' letter stated 320 hours.
5.3 It is therefore clear that the two contracts were totally different and that any prejudice suffered by Mrs. Jacobs was for the remaining 160 hours at most. The Department's offer of compensation for the maximum remaining hours is therefore a reasonable offer and even if I had been tasked to make a finding regarding procedural fairness, I would not have been able to award more than the amount offered by the Employer.
5.4 The issue of costs remains to be decided. In his evidence, Mr. Stevens contended that the evaluation that he had been through was not what he would regard as a proper evaluation. I have not considered the evidence as I regard it as irrelevant to the issues. I have explained to Mrs. Jacobs that if she had had a problem with that, she should have raised ft at that time, not after she was dismissed. She accepted the terms and conditions other employment. She did not avail herself of the opportunity to be evaluated. It is too late for her to raise A now. It does however seem that Mrs. Jacobs was confused regarding the issues and that she believed that she had been unfairly treated. Had this matter been conciliated, it is possible that this issue and other issues could have been clearer to her, and it is possible that she may not have pursued this matter further. As she was not assisted by a Union, she also seems to be unclear about the legal issues involved. I therefore would find it too harsh to order that Mrs. Jacobs should be ordered to pay the costs of this Arbitration.
6.1 The dismissal of Mrs. Jacobs was substantively fair as Mrs. Jacobs failed to comply with her probation conditions without valid reasons. The Employer's offer of compensation for procedural unfairness is the maximum that could have been awarded under the contract.
6.2 As Mrs Jacobs did not comply with her probation conditions, the contract was validly terminated with effect from the end of the probation period i.e. 30/6/99. Her contract cannot be compared with that of Mr. Stevens.
6.3 Mrs. Jacobs did not act unreasonably in referring this dispute to Arbitration and no costs order is made against her.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES WC
APPLICANT ANGELA JACOBS
RESPONDENT DEPARTMENT OF EDUCATION
ARBITRATOR KAMLESH KER
DATE OF ARBITRATION 2 FEBRUARY 2000
VENUE CAPE TOWN
APPLICANT MRS A JACOBS (IN PERSON)
RESPONDENT MR WANDRAGHT
1. The dismissal of Mrs. Jacobs was substantively fair as Mrs. Jacobs failed to comply with her probation conditions without valid reasons. The Employer's offer of compensation for procedural unfairness is the maximum that could have been awarded under the contract.
2. As Mrs. Jacobs did not comply with her probation conditions, the contract was validly terminated with effect from the end of the probation period i.e. 30/6/99. Her contract cannot be compared with that of Mr. Stevens.
3. Mrs. Jacobs did not act unreasonably in referring this dispute to Arbitration and no costs order is made against her.
DATE OF AWARD 15/02/2000