PSES CAR 000290 WC
PSES CAR 000290 WC
Award Date:
4 May 2000
Case Number: PSES CAR 000290 WC
Province: Western Cape
Applicant: RMG VAN NEEL
Respondent: DEPARTMENT OF EDUCATION WC
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 4 May 2000
Arbitrator: DAVID MIAS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 000290 WC
In the arbitration between:
RMG VAN NEEL APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATOR’S AWARD
1 . TERMS OF REFERENCE
1.1 The dispute between the parties concerns post 0498 as advertised on the Education Departments vacancy list number 1 of 1999. Mr. Van Neel had applied for the post» was not short-listed and therefore not nominated for the post. A certain Ms. C Davids had been nominated.
1.2 Both verbal and documentary evidence was tendered at the arbitration hearing- However, at the conclusion of the evidence for the employee, an application was made for absolution from the instance by the department. That application for absolution was granted by me on the day of the hearing when oral reasons were given by me for the granting of the application. This award records the reasons in writing.
2. BACKGROUND TO THE DISPUTE
2.1 Post 0498 was advertised in February 1999. K was an appointment at post-level 1. The school through its governing body had determined that the post should be for 'handwerk/musiek”. The needs of the school had been determined as primarily for “handwerk”., After discussions between the principal and the governing body it had been decided to add music to the requirement and the post was advertised as such.
2.2 The post was incorrectly advertised as one for post at level 2. That mistake was rectified by subsequent advertisements in newspapers. Mr. Van Neel was al all times aware that the post was for level 1 and that it was for 'handwerk/musiek. He made his application for the post on that basis after drawing the principals attention to the mistake in the advertisements.
2.3 For various reasons the short-listing of possible candidates for the post took place only on 22 November 1999. Mr Van Neel did not make the short-list. He was excluded on me basis that he bad no qualifications in ‘handwerk’. It appears that he had as a matter of fact taught this subject at the school on a temporary basis for various periods since April 1997 until 31 December 1999. At the time of his application he was therefore a temporary contract teacher at the school. The appointment to post 0498 was to have been a permanent appointment.
2.4 However, by circular numbered 0121/1999 the department informed all schools that in the event that a school already had twenty or more permanent posts, no more than one person could be appointed at post-level 3 on a permanent basis. Any additional appointment to post-level 1 positions could only be by temporary contract and for a specific period. Panarama Primary, the school concerned in this matter, had more than twenty permanent posts and there was already an existing appointment on a permanent basis at post-level 1.
2.5 Mr. Van Neels complaint in this matter arises from the fact that ha had applied for the position as initially advertised namely a permanent position and had not been short-listed. His grievance letter had attacked the very basis upon which the curriculum needs the school bad been identified with regard to the initial description of the post. According to him there were more than sufficient music teachers at the school. His argument goes farther however in that it was alleged on his behalf that at the short-listing meeting the governing body had jettisoned the handwork element to the post entirely and had nominated someone who had neither qualifications nor experience in handwork.
2.6 A further complaint made on behalf of Mr. Van Neel was that up to the stage of the nomination of Ms C Davids by the governing body, there was no reference whatsoever to circular 0121/1999 by which no permanent appointment could be made. The fact that the principal could make a nomination for a contract position was not conveyed to staff or governing body.
3. THE EVIDENCE FOR THE EMPLOYEE
3.1 The union called two witnesses namely Mrs. C F Barends and Mr M J Adonis. The first was a senior teacher at the school who explained the process by which the principal together with senior staff had arrived at the definition of the vacancy as handwork/music. This process is as outlined above. She also gave details as to the mistaken way in which the matter was firstly advertised in the education bulletin, how another mistake was made in the subsequent local newspaper advertisement until the matter was eventually rectified by a proper advertisement in Die Burger. When she was asked as to how Mr Van Neel had been prejudiced, she could not state any specific prejudice. It appeared that she only became aware on the day of the arbitration that Ms C Davids had been appointed on a contract basis.
3.2 Mr Adonis, as a union representative, had attended the short-listing process. He explained how the governing body had received more applications from persons qualified to teach music. He also explained how Mr Van Neel’s application was rejected on the basis that he had no qualifications in either handwork or music. He also stated that circular 0121/1999 was not discussed at this meeting at all. In fact the meeting proceeded as if it were going to make a permanent appointment to post 0498 as originally advertised. He as a union representative had not lodged any complaint about the shift of emphasis of the short-listing exercise with either the principal or the department.
3.3 The applicant in the matter was not called as a witness after Barends and Adonis had given evidence. The reason for this appeared to be that the applicant and his union only on the day of the arbitration began to understand that Ms C Davids had been appointed on a contract basis and only until June 2000.
3.4 Mr. N Jones of SADTU represented Mr Van Neel.
4. THE EVIDENCE FOR THE EMPLOYER
Application for absolution was made by the department at the end of the evidence of the two witnesses above.
5. 5.1 Mr. Peterson argued that as the matter concerned an alleged unfair labour practice, there was an onus on the employee to make out a case to which the department had to reply. The submission was that this had not been done. In fact Mr. Van Neel had himself not given any evidence on which unfairness or prejudice may be inferred.
5.2 I raised with the parties the question as to the utility of any finding on the short-listing process. The appointment of Ms C Davids was made under authority granted to the principal by circular 0121/1999 and not as an appointment made after nomination for a permanent post as originally advertised. Mr. Jones could only indicate that it would be beneficial to Mr Van Neel's long term position if any cloud was left hanging over the process of short-listing. I do not think it is necessary for me to make any finding in this regard. Mr Jones indicated that he was coming to arbitration with an unfair labour practice dispute and to my mind that is the issue which I have to address.
5.3 There is no evidence or argument to suggest that any kind of discrimination was exercised by the short-listing committee against Mr. Van Ned. In any event, if such discrimination had been alleged to exist, the matter could not have been dealt with at arbitration but would have required a referral to the labour court.
5.4 The residual of unfair labour practice definition contained in Schedule 7to the Labour Relations Act provide in Item 2 1 b that an arbitrator might determine an unfair labour practice dispute relating to ‘the unfair conduct of the employer relating to the promotion, demotion or training of an employee ...’ Mr Van Neel was an employee but a temporary contract employee in November 1999 when he applied for post 0498. I fail therefore to see how the matter can relate to promotion, demotion or training. It is for this reason that the application for absolution was granted on the day of the hearing.
6. AWARD
In the circumstances I confirm that absolution was granted on 3 May 2000.
DAVID MIAS
ARBITRATOR
4 MAY 2000
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CAR 000290 WC
APPLICANT RMG VAN NEEL
RESPONDENT DEPARTMENT OF EDUCATION WC
NATURE APPLICATION (FOR POST)
ARBITRATOR DAVID MIAS
DATE OF ARBITRATION 3 MAY 2000
VENUE CAPE TOWN
REPRESENTATION:
APPLICANT MR JONES (SADTU)
RESPONDENT MR PETERSON
AWARD:
In the circumstances I confirm that absolution was granted on 3 May 2000.
DATE OF AWARD 4 MAY 2000
Province: Western Cape
Applicant: RMG VAN NEEL
Respondent: DEPARTMENT OF EDUCATION WC
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 4 May 2000
Arbitrator: DAVID MIAS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR 000290 WC
In the arbitration between:
RMG VAN NEEL APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATOR’S AWARD
1 . TERMS OF REFERENCE
1.1 The dispute between the parties concerns post 0498 as advertised on the Education Departments vacancy list number 1 of 1999. Mr. Van Neel had applied for the post» was not short-listed and therefore not nominated for the post. A certain Ms. C Davids had been nominated.
1.2 Both verbal and documentary evidence was tendered at the arbitration hearing- However, at the conclusion of the evidence for the employee, an application was made for absolution from the instance by the department. That application for absolution was granted by me on the day of the hearing when oral reasons were given by me for the granting of the application. This award records the reasons in writing.
2. BACKGROUND TO THE DISPUTE
2.1 Post 0498 was advertised in February 1999. K was an appointment at post-level 1. The school through its governing body had determined that the post should be for 'handwerk/musiek”. The needs of the school had been determined as primarily for “handwerk”., After discussions between the principal and the governing body it had been decided to add music to the requirement and the post was advertised as such.
2.2 The post was incorrectly advertised as one for post at level 2. That mistake was rectified by subsequent advertisements in newspapers. Mr. Van Neel was al all times aware that the post was for level 1 and that it was for 'handwerk/musiek. He made his application for the post on that basis after drawing the principals attention to the mistake in the advertisements.
2.3 For various reasons the short-listing of possible candidates for the post took place only on 22 November 1999. Mr Van Neel did not make the short-list. He was excluded on me basis that he bad no qualifications in ‘handwerk’. It appears that he had as a matter of fact taught this subject at the school on a temporary basis for various periods since April 1997 until 31 December 1999. At the time of his application he was therefore a temporary contract teacher at the school. The appointment to post 0498 was to have been a permanent appointment.
2.4 However, by circular numbered 0121/1999 the department informed all schools that in the event that a school already had twenty or more permanent posts, no more than one person could be appointed at post-level 3 on a permanent basis. Any additional appointment to post-level 1 positions could only be by temporary contract and for a specific period. Panarama Primary, the school concerned in this matter, had more than twenty permanent posts and there was already an existing appointment on a permanent basis at post-level 1.
2.5 Mr. Van Neels complaint in this matter arises from the fact that ha had applied for the position as initially advertised namely a permanent position and had not been short-listed. His grievance letter had attacked the very basis upon which the curriculum needs the school bad been identified with regard to the initial description of the post. According to him there were more than sufficient music teachers at the school. His argument goes farther however in that it was alleged on his behalf that at the short-listing meeting the governing body had jettisoned the handwork element to the post entirely and had nominated someone who had neither qualifications nor experience in handwork.
2.6 A further complaint made on behalf of Mr. Van Neel was that up to the stage of the nomination of Ms C Davids by the governing body, there was no reference whatsoever to circular 0121/1999 by which no permanent appointment could be made. The fact that the principal could make a nomination for a contract position was not conveyed to staff or governing body.
3. THE EVIDENCE FOR THE EMPLOYEE
3.1 The union called two witnesses namely Mrs. C F Barends and Mr M J Adonis. The first was a senior teacher at the school who explained the process by which the principal together with senior staff had arrived at the definition of the vacancy as handwork/music. This process is as outlined above. She also gave details as to the mistaken way in which the matter was firstly advertised in the education bulletin, how another mistake was made in the subsequent local newspaper advertisement until the matter was eventually rectified by a proper advertisement in Die Burger. When she was asked as to how Mr Van Neel had been prejudiced, she could not state any specific prejudice. It appeared that she only became aware on the day of the arbitration that Ms C Davids had been appointed on a contract basis.
3.2 Mr Adonis, as a union representative, had attended the short-listing process. He explained how the governing body had received more applications from persons qualified to teach music. He also explained how Mr Van Neel’s application was rejected on the basis that he had no qualifications in either handwork or music. He also stated that circular 0121/1999 was not discussed at this meeting at all. In fact the meeting proceeded as if it were going to make a permanent appointment to post 0498 as originally advertised. He as a union representative had not lodged any complaint about the shift of emphasis of the short-listing exercise with either the principal or the department.
3.3 The applicant in the matter was not called as a witness after Barends and Adonis had given evidence. The reason for this appeared to be that the applicant and his union only on the day of the arbitration began to understand that Ms C Davids had been appointed on a contract basis and only until June 2000.
3.4 Mr. N Jones of SADTU represented Mr Van Neel.
4. THE EVIDENCE FOR THE EMPLOYER
Application for absolution was made by the department at the end of the evidence of the two witnesses above.
5. 5.1 Mr. Peterson argued that as the matter concerned an alleged unfair labour practice, there was an onus on the employee to make out a case to which the department had to reply. The submission was that this had not been done. In fact Mr. Van Neel had himself not given any evidence on which unfairness or prejudice may be inferred.
5.2 I raised with the parties the question as to the utility of any finding on the short-listing process. The appointment of Ms C Davids was made under authority granted to the principal by circular 0121/1999 and not as an appointment made after nomination for a permanent post as originally advertised. Mr. Jones could only indicate that it would be beneficial to Mr Van Neel's long term position if any cloud was left hanging over the process of short-listing. I do not think it is necessary for me to make any finding in this regard. Mr Jones indicated that he was coming to arbitration with an unfair labour practice dispute and to my mind that is the issue which I have to address.
5.3 There is no evidence or argument to suggest that any kind of discrimination was exercised by the short-listing committee against Mr. Van Ned. In any event, if such discrimination had been alleged to exist, the matter could not have been dealt with at arbitration but would have required a referral to the labour court.
5.4 The residual of unfair labour practice definition contained in Schedule 7to the Labour Relations Act provide in Item 2 1 b that an arbitrator might determine an unfair labour practice dispute relating to ‘the unfair conduct of the employer relating to the promotion, demotion or training of an employee ...’ Mr Van Neel was an employee but a temporary contract employee in November 1999 when he applied for post 0498. I fail therefore to see how the matter can relate to promotion, demotion or training. It is for this reason that the application for absolution was granted on the day of the hearing.
6. AWARD
In the circumstances I confirm that absolution was granted on 3 May 2000.
DAVID MIAS
ARBITRATOR
4 MAY 2000
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CAR 000290 WC
APPLICANT RMG VAN NEEL
RESPONDENT DEPARTMENT OF EDUCATION WC
NATURE APPLICATION (FOR POST)
ARBITRATOR DAVID MIAS
DATE OF ARBITRATION 3 MAY 2000
VENUE CAPE TOWN
REPRESENTATION:
APPLICANT MR JONES (SADTU)
RESPONDENT MR PETERSON
AWARD:
In the circumstances I confirm that absolution was granted on 3 May 2000.
DATE OF AWARD 4 MAY 2000