Case Number: PSES GAAR 003984 GP
Province: Eastern Cape
Applicant: SADTU obo MRS N GUMBI
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 6 March 2000
Arbitrator: EBRAHIM PATELIA
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 003984 GP
In the arbitration between:
SADTU obo MRS N GUMBI APPLICANT
THE DEPARTMENT OF EDUCATION RESPONDENT
1 . This award was submitted on 06 March 2000 due to the parties agreeing to submit their heads of argument to me on 18 January 2000. The applicant's representative then agreed with the respondent's representatives' to submit his heads of argument later. I received the applicant's heads of argument on 28 February 2000 from IMSSA.
2 . HEARING AND REPRESENTATION
2.1 For the sake of convenience The Department of Education - Gauteng Province will be referred to as "the employer" or "the department". Mrs. N Gumbi will be referred to as the applicant.
2.2 Mr. J Thipe of the department and Ms A de Beer of the state attorney's offices represented the employer. Mr. S Narain of Cheadle Thompson and Haysom attorneys, acting on behalf of SADTU, represented the applicant.
3.1 In terms of the Arbitration Agreement as contained in the Education Labour Relations Council Resolution no 7 of 1997, I am required to:
3.1.1 Determine the issues in dispute, as reflected below, on the evidence presented to me;
3.1.2 Award any sanction that I consider to be fair and/or appropriate to settle this matter.
4. ISSUES NOT IN DISPUTE
From the evidence led and the arguments' presented to the arbitration the following issues are common between the parties:
4.1 The applicant served from 1 May 1996 to 31 July 1996 at Parktown Primary School as a temporary educator. She earned a salary based on the annual figure of R40, 830 per annum.
4.2 The department condoned the late referral of this matter.
4.3 The documents referred to is as marked at the arbitration with the parties.
4.4 A formal tape recording of the proceedings was kept on behalf of the ELRC. The department agreed to manage the transfer of this record to the ELRC.
5. THE ISSUES IN DISPUTE
From the arguments and evidence presented by the parties the following issue is in dispute:
5.1 Whether the applicants contract of employment was for a period of eight months (from 1 May 1996 to 31 December 1996) or for a period of three months (from 1 May 1996 to 31 July 1996)?
5.2 Should the period be for eight months, whether the applicant is entitled to a permanent position in terms of Resolution 3 of 1996?
5.3 Should it be necessary, the appropriate sanction in this matter?
6. SUMMARY OF THE EMPLOYER’S CASE
6.1 The employer led the oral evidence of Mrs. Greeve who is the DEC of District C3, which includes Parktown Primary School, Mrs. Pieterse who was employed in the appointments section at the time. Mr. A Rowe who is the principal of Parktown Primary School and Ms E Gearson who is employed as a teacher at Parktown Primary School.
6.2 Mrs. Greeve testified that the document on pages 19 and 20 of the bundle (which will be referred to as the "alleged contract") is simply a recommendation for the appointment of educators made by the principal to the department. This document went out usually before appointments were made. It was possible for the applicant to assume the position before a confirmation and appointment returned from the department.
6.3 The dates’ appearing on the document indicates the period of the vacancy at the school and the period the recommended applicant is available for. In this case both periods were from 1 May 1996 to 31 December 1996. This period in no way indicates the actual period of appointment.
6.4 The department would usually confirm the appointment in a letter as on pages 25 and 43 of the bundle. These letters however do not reflect the true appointment of the applicant as neither was formally presented to her. Document 25 was a document being drawn up for the applicant. The applicant however snatched this document from Mrs. Pieterse before it could be finalized. Mrs. Pieterse testified in corroboration of this point.
6.5 Mrs. Greeve testified that she had no knowledge as to why the period indicated on document 43 ended on 31 December 1996. The letter was however dated 21 September 1996 and obviously reflects the strained administrative burden the department faced. Also the applicant had been appointed in terms of letter 44 at Bramley Primary School for the period 08 October 1996 to 06 November 1996. She obviously could not have been appointed at two schools at the same time.
6.6 Mrs. Greeve further testified that at the time there was a circular in force that allowed for the appointment of temporary teachers for a period of a term at a time. As the applicant started during the term this period was for a fixed time of three months, which is equal to a term. This circular had full force and effect as it was derived from the head office. Mrs. Greeve testified that she was not in possession of the circular.
6.7 Mrs. Greeve further testified that for Resolution 3 of 1996 to apply, the position occupied by the applicant should have been a substantive post. A substantive post is created at schools on me 10^ school day. This is dependent on the number of learners at the specific school. As Parktown Primary School was a new school and missed the 10th school day, none of its posts were substantive.
6.8 She also testified that the effect of circular 38 of 1996 was that educators could be appointed in a temporary capacity if there were vacant substantive posts within the post establishment. Should posts be above or below the post establishment then the vacancy list would be applicable. Where there were open vacancy list the educators were later declared in excess. If the vacancy list was closed those educators stayed on in their positions as normal.
6.9 Mrs. Greeve further testified that the principal complained about the applicant's performance and her lack of qualifications to teach at a primary school level. These were some of the reasons as contained in the document on page 73 and 74 of the bundle, which were made out jointly by her and the principal for not renewing her contract of employment.
6.10 As the applicant believed that she was entitled to stay until December 1996, it was necessary to give her one month notice and confirm her period of appointment as per the document on page 24 of the bundle, which was dated 20 June 1996. The one month notice period was also a standard practice at that time. The witness testified that at all times Mrs. Gumbi was told that her contract was for a fixed period of three months.
6.11 Mrs. Pieterse testified that at the time she worked in the appointments section. She was aware of the circular issued by the SG, Mr. Maseko, directing that all temporary appointments be limited to three months at a time. This period could be extended for other periods of three months each, at the discretion of the employer.
6.12 Mr. Rowe testified that he interviewed the applicant in May 1996. He filled in the form on pages 19 and 20 of the bundle with the applicant. This form is a mere recommendation. Section C (7) on the document reflects the period of the vacancy and section B (4) means "the same thing". At the interview he told the applicant that her contract would be for three months. He testified that Mrs. Gearson was present at the interview. Mrs. Gearson corroborated this point in her testimony.
6.13 Mr. Rowe also testified that at the time the school was new and as such no post establishment was created. He also testified that the document on pages 78 and 79 reflect his observations of the applicant after his class visits. The applicant thanked him for his input at the time.
6.14 Mrs. Gearson testified that she started at Parktown Primary School on 01 April 1996 on a contract period for three months. She was told this at the interview with Mr. Rowe. She testified that her contract period extended on a three months basis until she was made permanent "within the last year". She testified that she was not sure of the process in which she was made permanent. It was maybe a "ruling by the department that if I was appointed as I was before 1 July 1996, then it would be made permanent", the witness testified. She also testified that she was not given an appointment letter at any stage.
6.15 The department argued that the applicants contract lawfully ended after a period of three months.
7. SUMMARY OF THE APPLICANT’S CASE
7.1 The applicant’s representative led the applicant's evidence and that of Mr. J Ngwenya (provincial secretary of SADTU).
7.2 The applicant testified that Mr. Rowe told her that her position at the school would be for a period of eight months. She testified that she met with Mr. Rowe alone at the time. Mr. Rowe wrote out the alleged contract on pages 19 and 20. She only filled in sections 'G' and 'H' of the document. Mr. Rowe never told her of any policy regarding three-month appointments, at the interview.
7.3 During June 1996 Mrs. Greeve and Mr. Rowe called her in to a meeting where she was informed of her contract ending at the end of July 1996.
7.4 Mrs. Greeve who attempted to force her to sign the letter presented her with the letter on page 24, She refused to sign, as the facts within the letter were incorrect. She testified that she never received an appointment letter from the department. The letter of appointment on page 25 was snatched from Mrs. Pieterse. This was due to the fact that she had made the witness wait for over six hours. This letter does not reflect her true appointment.
7.5 "The guy from District 5", at the conciliation of this matter gave the letter of appointment on page 43 to the applicant. This letter reflects the true period of appointment, however the salary reflected on the letter is incorrect.
7.6 She testified that she worked at Bramley Primary School from October to November 1996, then at St Theresa's Convent (a private school) from January to August 1997, then as a substitute at Sacred Heart College from October toDecember 1997, then at Waverley Girls from January to July 1998 and then at Cliffview Primary School from 31 August to 31 November 1998. The department did not place her in any of the schools.
7.7 She testified that if her contract continued until the end of December 1996 she would have been made permanent, as Mrs. Gearson.
7.8 She also testified that she has a senior secondary qualification. The reference to primary school qualification on page 28 is a misprint. She testified that she never lied to the department or the principal regarding her qualifications.
7.9 She testified that the letter on page 23 is the letter Mr Rowe sent regarding her appointment to the bank. She testified that she was not in agreement with the period indicated on the letter.
7.10 The applicant further testified that she underwent harassment from Mrs. Greeve and Mr. Rowe, whilst she was at the school. They made racial remarks and Mrs. Greeve was constantly in her classroom.
7.11 She further testified that she never committed any misconduct and her performance was never below standard. There was no reason for the department to dismiss her. Mr. Rowe told her at the time of her dismissal that it was due to financial constraints that they had to let her go. However another person was appointed and is still appointed in the position she was teaching in.
7.12 Mr. Ngwenya testified that he is the full time General secretary of SADTU as of September 1997, and as such is involved in the negotiations on the collective agreements. During the (unreadable) of Resolution 3 of 1996 and the events of this matter he was a full time principal for the department and a part-time branch chairperson for SADTU.
7.13 He testified that although he did not know Resolution 3 of 1996 in detail he understood it to have declared temporary teachers, employed on a substantive post before 01 July 1996, as permanent. These teachers were then also subject to the rationalization process. In that they could remain at the school as a permanent teacher or be declared in excess. Should they be declared in excess and no alternative position was found for them, they would be entitled to a VSP.
7.14 A non-substantive post would be an additional post to the post establishment of a school. A non-substantive post would not be entitled to the effects of Resolution 3 of 1996. Post establishments are created on the 10th school day, in relation to the number of learners at the school.
7.15 The witness also testified that the rationalization and redeployment process did not run its full course. It was possible for teachers to be appointed outside of the excess list.
7.16 He testified that he understood the alleged contract on pages 19 and 20 to mean a contract of employment. He testified that the HOD has the power to make appointments. During his time as a principal the appointments were confirmed in an assumption of duty form by the department. The principal in certain instances has delegated powers to act on behalf of the department.
7.17 The representative argued that the applicant was dismissed unfairly. Accordingly she should be reinstated with retrospective effect in a permanent capacity as per Resolution 3 of 1996.
8.1 This matter must be determined on the basis of fairness in the particular circumstances.
8.2 This matter presents an interesting puzzle created by the parties. I will deal with the issues in a step-by-step manner. Firstly in deciding the issue of the period of the contract of employment, I will deal with the alleged contract on pages 19 and 20 of the bundle, then the two appointment letters, then the alleged three-month appointment policy of the department and finally the witness testimony on the period of employment will be considered. Secondly I will consider the applicability of Resolution 3 of 1996 to the applicant Lastly I will determine, if necessary, an appropriate sanction in this matter.
8.3 The alleged contract on page 19 and 20 reflects important evidence in this case. The document on the face of it clearly headed “Notice of temporary (unreadable). However, on closer inspection of the document we find that the applicant is clearly referred to as the "recommended incumbent". The clause below the heading also speaks in the language of future possible appointment by stating "In the case of an appointment..."
8.4 Also from the heads of argument of the parties and more particularly the applicants under point 5.6 of his document he states, "It is accepted that the respondent has the power to make appointments". It is also clear form my reading of the Employment of Educators Act 76 of 1998 that the Head of department (HOD) in a provincial appointment has the sole right to make appointments of educators based on the recommendations from the school- The agent acting in the capacity as principal or under the SGB structure has the duty to investigate and interview prospective candidates and make recommendations to the HOD The HOD would then exercise its discretion before confirming the appointment. A similar method of contracting is utilized in most government departments and Is the nature of contracting with some companies.
8.5 I thus find it dear that the HOD is the principle player in this contractual relationship and the principal his agent. The agent who is the principal of the school in this case, can make a recommendation but cannot confirm an appointment. I thus find it more probable that the document referred to in pages 19 and 20 is to be regarded as a recommendation by the principal of the school to the HOD. The HOD would usually confirm the appointment in a letter of appointment like on pages 43 and 44 of the bundle.
8.6 Any action by the principal of the school outside of this delegated authority would be treated as ultravires. However our courts have defined that should an agent (the principal of the school) create the impression to a third party (the applicant) that he has the power to contract on behalf of the agent (the HOD) a contractual relationship could arise. In this particular case it is important to reflect on whether the principal made such remarks or created such an impression to the applicant.
8.7 Neither the applicant nor the respondent dealt directly with this issue. The applicant openly admitted in its heads of argument that the HOD only has the power to appoint. The applicant testified that the principal stated to her at the interview and later she testified during his introduction of her to the learners that she would be working until "the end of the year". At one point during cross-examination she testified that the principal had no discussions with her on the period of employment. As her testimony is contradictory on this point I find it unreliable and of no value.
8.8 The applicant also testified that she relied on the face value of the document on pages 19 and 20. The dates reflected on document gave her the impression that her appointment was for eight months. I find that the applicant's own misinterpretation of the document on its own cannot be blamed on the respondent.
8.9 The respondent's witnesses Mr. Rowe and Mrs. Gearson who testified that they were present during the interview is relevant to this issue. I find that neither witness looked at the point of authority. Their testimony simply went to the period of employment. Both witnesses testified that the applicant was told that her period of employment would be for 3 months only. Mr. Rowe also testified clearly that the document on pages 19 and 20 reflect a recommendation. Mrs. Greeve testified that it was the prerogative of the HOD acting on behalf of the department to make appointments.
8.10 The witness called by the applicant Mr. Ngwenya who is the secretary general of SADTU and worked as a principal for the department testified clearly under cross-examination that only the department has the authority to appoint educators. Under cross-examination the witness testified, "when teachers completed the necessary forms, I (during his tenure as principal) would sign them. submit them and this is not a contract, this would be an application for a post. Then a letter of appointment would come from the department stating the terms of the appointment" I found his evidence to be reliable on this point.
8.11 However, when Mr. Ngwenya was referred to the specific document on pages 19 and 20 he stated that it was a contract of employment. This evidence of his seems strange and dearly contradicts his testimony above. His answers on this point were direct and short. He appeared to have been rehearsed on this point. Whereas his detailed explanation of the process of appointments during his tenure as a principal as described above flowed naturally.
8.12 l cannot find any evidence to suggest that the principal indicated to the applicant that he had the authority to contract on behalf of the department. The applicant in fact testified during cross-examination "We (Mr. Rowe and herself) filled the forms (the alleged contract) together on 01 May 1996 and he (Mr. Rowe) processed the application to the GDE on 07 May 1996" this clearly reflects that she understood that the document needed to be sent to the GDE and was not finalized at the school.
8.13 l accordingly find it more probable that the principal acting as agent for the department in no way made any direct or implied representations to the applicant, to suggest that he had the authority to contract on behalf of the department. The applicant had no reason to believe that he was acting on behalf of the department. Accordingly, even if he had indicated to her a period of three months or eight months, such contract would be ultra vires, as he had no authority to contract on behalf of the department. For a contract to be binding the parties to the agreement must have the contractual ability and delegated authority to do so. In this case there was no real or implied authority. I accordingly find that the document on pages 19 and 20 do not constitute a contract and that the principal had no authority to contract on behalf of the department.
8.14 The department in this case however failed to confirm the appointment of the applicant. It is undisputed that the department never formally presented the letters of appointment on pages 25 and 43 of the bundle. The applicant forcefully removed document 25 from the possession of an administrator of the department. This document clearly contains handwritten information and was never formally presented to the applicant. Accordingly it cannot be considered to be proof of a valid appointment. I find it more probable that the document was in the process of being completed and cannot be considered to be a formal and final appointment.
8.15 Document 43 on the other hand is drafted in a more formal fashion. However the applicant received this document at the conciliation from, according to her own words, "the guy from District". The circumstances of her receiving this document are completely vague. The document also contains as per the applicant's testimony an incorrect salary amount. The document is made out on the letterhead of the department and contains the signature of the SG at the time. However, neither the original of this document nor the author of the document was presented as evidence. Taking into consideration all the above factors I cannot place any evidentiary value on the authenticity of the document.
8.16 The department at no stage presented the applicant with a confirmation of her appointment. For all intents and purposes she worked for the department without a valid appointment. The department however admits that she was appointed. They argue that this was for a period of three months only. 1 therefore must consider the fairness of her termination.
8.17 The witnesses of the department all mention this period of three months. They also rely on a circular from the department indicating that appointments are made for a period of three months at a time. None of the witnesses could provide the circular. All the circulars and documents presented at the arbitration make no reference to the three-month contract, applicable to the applicant's position at the time. The witnesses had no reason not to present such circular. I therefore find that the circular is non-existent for the purpose of this arbitration.
8.18 Mr. Rowe also presented unreliable evidence on this point. He testified that he informed the applicant of the three-month contract at the interview on the 1 May 1996. Under cross-examination he testified that he received the alleged circular from the department in "May sometime". He then changed his testimony to indicate that he received the memo before May 1996. Mrs Pieterse also became evasive during cross-examination on the three-month period. I find after having considered the above that the department's allegation of the three-month contract to be improbable as it lacks evidentiary value.
8.19 In this matter it is undisputed that the department, with a period of notice, terminated the applicants employment. The department thus has the onus of (unreadable) that such termination was substantialy and procedurally fair. In this case the department had the onus of proving its case that the employment relationship as for a fixed term contract of three months.
8.20 Having considered all the above information, it is dear that the department relied on the existence of the alleged circular directing such three-month contract. The department failed to confirm the appointment of the applicant in any manner whatsoever. The vagueness on the period of employment of the applicant was caused as a direct result of the failure by the department to finalise the appointment. The department admits that the applicant was appointed. Both parties are in agreement that the contract was for a fixed period of time. The department however, could not on a balance of probability prove that the period was for three-months.
8.12 The department has thus failed to provide any reason as to why the contract was terminated in July 1996. I accordingly find that the department failed to satisfy its burden of proving that there was a fair reason for the dismissal of the applicant.
8.22 The applicant argued that Resolution 3 of 1996 would have impacted on the applicant had she still been employed with the department. The applicant had the onus of proving such an allegation. He led the evidence of Mr. Ngwenya, who appeared to be his key witness on this point. Mr Ngwenya demonstrated an exact argument on the interpretation of Resolution 3 of 1996, so far as it benefitted the applicant. He however admitted strangely under cross-examination that his knowledge of the resolution was not good.
8.23 He admitted, as the department argued, that the Resolution applied to substantive posts only on a defined post establishment. He also testified in corroboration of the department's testimony that post establishments are created on the 10th school day, based on the number of learners at the school. He was uncertain as to what would happen in the case of the Parktown Primary School, which was created after the 10th school day.
8.24 Mrs. Greeve of the department testified that the posts at the school would be regarded as non-substantive posts. Mr. Ngwenya also testified that the process of rationalization was never completed. Educators on the excess list were not appointed automatically into positions.
8.25 I find that Resolution 3 of 1996 does apply to substantive posts on a defined post establishment. The applicant failed to provide any evidence as to how this impacted on Parktown Primary School- The respondent provided the clear evidence of Mrs. Greeve.
8.26 Mrs. Geareon was unsure of how she was appointed permanently. She thought that it might have been due to her appointment before July 1996. This would give reference to Resolution (unreadable) of the witness and the vagueness of the situation applicable to Partkown Primary School at the time. The applicant failed to provide more probable evidence to corroborate how Mrs Gearson was made permanent. I accordingly do not draw any conclusions from the permanent appointment of Mrs. Gearson.
8.27 I find that the applicant failed to provide a more probable case on this point I find that the only evidence available to decide the point rests with the testimony of Mrs. Greeve who testified that the positions at the school were non-substantive and therefore avoided the effects of Resolution 3 of 1996. Her testimony on this point was the most dear from all the evidence presented on this point.
8.28 I accordingly find that:
8.28.1 The applicant was employed for an uncertain but fixed period.
8.28.2 The department terminated the contract of employment with the respondent with no reason and without any fair process.
8.28.3 The applicant is not affected by Resolution 3 of 1996.
8.29 I find that the following represents a fair sanction in the circumstances:
8.29.1 Most importantly, there is no dispute that the applicant was appointed only for a fixed period. Also I am convinced that the employment relationship between the parties has been strained to such a point that the continued employment relationship would be impossible. The parties during the arbitration reflected an antagonistic and untrusting manner toward each other. I am convinced that renewing the employment relationship would lead to greater problems for all parties concerned. I also find that since it is undisputed that the contract was for a fixed period and that the applicant could not prove the applicability of Resolution 3 of 1996, to impose a permanent employment relationship on the parties would be unfair.
8.29.2 I accordingly believe that a compensation amount be paid to the applicant. Only in deciding this payment I have given the applicant the benefit of the doubt on the period of the fixed term contract. I in no way find this to be the more probable period. My findings above always apply to this issue.
8.20 I accordingly find that the respondent must pay the applicant immediately, an amount equivalent to 5 months her salary at the rate applicable at the time of the termination of her employment.
8.21 I also find that the respondent must pay the applicant 50% of its Segal costs incurred only in the arbitration of this matter. Such costs are limited to party and party costs on the magistrates court scale.
6 MARCH 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR 003984 GP
APPLICANT SADTU obo MRS N GUMBI
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONTRACT OF EMPLOYMENT
ARBITRATOR EBRAHIM PATELIA
DATE OF ARBITRATION 18 NOVEMBER 99 AND 21 DEC 99
APPLICANT MR S NARAIN
RESPONDENT MR J THIPE & MS A DE BEER
1 I accordingly find that the respondent must pay the applicant immediately, an amount equivalent to 5 months her salary at the rate applicable at the time of the termination of her employment.
2 I also find that the respondent must pay the applicant 50% of its Segal costs incurred only in the arbitration of this matter. Such costs are limited to party and party costs on the magistrates court scale.
DATE OF AWARD 6 MARCH 2000