Award  Date:
18 April 2000
Case Number: PSES GAME 9922 NW
Province: Eastern Cape
Applicant: NP MODISANA
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 18 April 2000


In the arbitration between:





1 .

1.1 This arbitration was conducted in terms of Resolution of 7 of the Education Labour Relations Council (the ELRC”). It was conducted over a number of days. The complainant was represented by Mr Abdool Osman of Stemmet and Coetzee Attorneys. The department was represented by Mr Managa and Mrs Modipa. I thank all of them for their able assistance in this matter.

1.2 The arbitration was established as result of the union and the complainant registering a dispute with the ELRC. The dispute concerned a complaint with the conduct of the department. The dispute was registered in terms of item 2(1)(b)of schedule 7 of the Labour Relations Act No 66 of 1995 (“the Act”). Item 2(1)(b) provides:

“2 Residual unfair labour practices
(1) For the purposes of this item, an unfair labour practice means any unfair act or omission that arises between any employer and an employee, involving-
(a) ....
(b) the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee.”

1.3 All the facts in this case are common cause.

1.4 The complainant was employed at Gojela Secondary School in the Makewereleng District since 1989 (“Gojela”). He was a senior teacher at Gojela.

1.5 Early in 1997 the department advertised the post of principalship at the Nonchimudi Primary School ("the post”). The complainant applied for the post. He was duly interviewed by the School Governing body (“the SGB”). The interview occurred in December 1997.

1.6 On or about 10th July 11998 the complainant received a letter from the Regional Director of the department, informing him that he has been appointed to the post. The letter reads:

1 I have the pleasure to inform you that approval has been obtained to appoint you as a principal at Nonchumudi School with effect from 1 July 1998 permanently but on 12 months probation.
a) your salary and scale will be made known to you in due course.
2 This appointment is subject to the Regulations Promulgated under RSA Government Notice 15961 dated 2 September 1994.

3 The department congratulate you on your appointment and hope that you will enjoy your stay in your new spheres of work.”

1.7 The complainant was taken to Nonchumudi Primary School ("the school") by the Circuit Manager of the department on 22nd July 1998. The Circuit Manager introduced him as the new principal to some of the members of the SGB, including the chairperson of the SGB. These members of the SGB represented the entire SGB. They indicated to the Circuit Manager that they do not accept the complainant as principal, as he was not the candidate they recommended.

1.8 The SGB recommended one Mrs FA Maraba who was also a candidate for the post and who was also interviewed by the SGB. Mrs Maraba was at that point acting in that post. All the interviewees were given scores during the interviewing process, and were ranked accordingly. Mrs Maraba was ranked first and the complainant was ranked second.
1.9 After The SGB refused to accept the complainant, he was asked to accompany the Circuit Manager to the District Office where he met the Regional Director who said he will look into the matter. The Regional Director is the same person that sent him the letter quoted above. He was asked to return the next day. The next day her reported to the District Office. Members of the SGB were also present at the District Office. The SGB was adamantly refused to accept the complainant as principal. The Regional Director was not able to solve the problem.

1.10 The complainant was told by the Circuit Manager to report daily to the District Office while the department attempted to solve the problem posed by the attitude of the SGB. This he did. He continued to report to the District Office, where he was asked to perform certain clerical duties, while the department attempts to resolve the problem. A week later he was asked to report to the Makwereleng Academy Finishing Centre ("the Centre") to assist the principal there with administrative duties. Again, he did so. He worked at the Centre for the rest of 1998. There was no work for him at the Centre after that. While working at the Centre, he regularly visited the District Office to enquire about the progress regarding the department's attempt to resolve the problem. The Centre closed down at the end of the 1998 academic year.

1.11 In January 1999 when the schools re-opened he went to the District Office for further instructions. He was not yet informed of the progress achieved by the department in its efforts to resolve the problem posed by the SGB at the school. After six months the department was still unable to resolve the problem. He was told to choose any school in the district where he wish to provide services in terms of his contract of employment. He chose to return to Gojela. It was understood by all that his return to Gojela was temporary as the department was still attempting to resolve the problem at the school.

1.12 On 8th March 1999 he received a letter from the Regional Director of the department once again. This letter reads:

“Mr Modisana MP
Nonchumudi Primary

1 The above matter refers.

2 I regret to inform you that your application (sic) for the abovementioned post has been withdrawn.

3 .....

4 The Department thanks you for your participation in this regard and hope that you will succeed (sic) in the near future.”

1.13 While the complainant only received it on 8th March 1999, it was dated 4th February 1999, and stamped on the 5th March 1999. The department sat on the letter for more than a month. In the meantime, the complainant was told to await the department's efforts to resolve the problem at the school.

1.14 The content of the letter it must be said is strange. It is addressed to the school, yet the department was fully aware that he was not located there. He was still awaiting the outcome of the department's efforts to resolve the problem at the school. The complainant had not withdrawn his application. It was not possible for the department to withdraw his application, but it had done so. The application was "withdrawn" some fourteen months after it was lodged. In the meantime the complainant had been interviewed and given an appointment letter. The department was, to say the least, extremely tardy in the way it dealt with the complainant. No attempt was made to explain this tardiness to the arbitration.

1.15 The complainant then declared a dispute with the department and registered the dispute with the Education Labour Relations Council ("the ELRC"). This arbitration is the culmination of that dispute. In the meantime, he continued to perform duties at Gojela. Presently he has been declared “in excess” at Gojela.

1.16 Those then are the facts. The department’s case is that it had erroneously sent the complainant a letter of appointment and, therefore, it did not commit an unfair labour practice as contemplated in item 2(1)(b) of schedule 7 of the Act.

1.17 It is common cause that the appointment of the complainant is subject to the South African Schools Act 84 of 1996 (''SASA'') Section 20(1)(I) of SASA requires the SGB to recommend the appointment of educators to the Head of Department. It reads:

“20 Functions of all governing bodies

(1) Subject to this Act, the governing body of a public school must - .....
(1) recommend to the Head of Department the appointment of educators at the school, subject to the Educators Employment Act, 1994, .... and the Labour Relations Act 1995 ....” (emphasis added)

1.18 It is true the SGB did not recommend the complainant, and was, therefore not willing to accept his appointment. This posed a serious problem for the department. It could overrule the SGB or accept that it erred in ignoring the recommendation of the SGB.

1.19 According to the Head of Department, the former choice was non-existent. In terms of s 20 of SASA, the department was bound to follow the recommendation of the SGB. Section 20(1) specifically grants the SGB the power to choose the candidate. This is manifested in the usage of the word “must”. Hence, the department had no choice but to withdraw the appointment of the complainant as he was not the one that was recommended by the SGB.

1.20 The department accepts that its conduct was most unfair to the complainant. It caused the complainant not only a considerable amount of embarrassment, but also a fair amount of prejudice. If the department were decisive as soon as it learnt of its error, which was when the SGB refused to accept the complainant, the complainant would not have been forced to move from pillar to post.

1.21 As this matter is brought in terms of item 2(1)(b) of Schedule 7 of the Act, I am no doubt required to deal with it in terms of this section. Item 4(2) of Schedule 7 spells out the terms on which the dispute should be determined. It reads:

“The arbitrator has the power to determine any dispute that has been referred to it in terms of item 3 on reasonable terms.”

1.22 In my view, this dispute would be fairly and reasonably resolved by the department paying the complainant compensation for the unfair treatment it meted out to him.

1.23 I have canvassed this with both parties at the arbitration. The department provided a quantification of the prejudice suffered by the complainant. The amount provided by the department was thirty-four thousand. eight hundred and thirty-three rands (R34 833-00). This amount was accepted as being correct by the complainant. However, Mr Osman submitted that in the light of the extreme tardiness of the department the complainant should be awarded some punitive damages for the treatment meted out to him. As I agree that the department’s conduct was not something it should be proud of, I found this submission appealing. However, upon more mature reflection and upon exploring the authorities I have to say that there is not much merit in the submission. The Labour Appeal Court sitting in terms of the old Labour Relations Act has held that the computation of damages must be based on the following:

"(a) (T)here must be evidence before the court of actual financial loss suffered by the person claiming compensation;
(b) there must be proof that the loss was caused by the unfair labour practice;

(c) the loss most be foreseeable, ie not to remote or speculative;

(d) the award must endeavour place the applicant in monetary terms in the position which he would have been had the unfair labour practice not been committed;

(e) in making the award the court must be guided by what is reasonable and fair in the circumstances. It should not be calculated to punish the party;”
Ferodo (Pty) Ltd v De Ruiter (1993) 14 ILJ 974 (LAC) at 981C-H

1.24 This approach to compensation has been accepted as correct by the present Labour Appeal Court (see: Woolworths v Beverly Whitehead (LAC) (unreported) at para 51)

1.25 In the premises, I issue the following award:

The department is to compensate the complainant with an amount of thirty-four thousand eight hundred and thirty-three rands (R34 833-00). This amount is to be paid within fifteen days of the dat of this award.

18 APRIL 2000





The department is to compensate the complainant with an amount of thirty-four thousand eight hundred and thirty-three rands (R34 833-00). This amount is to be paid within fifteen days of the dat of this award.

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