Case Number: PSES NP
Applicant: MS A E VAN AS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 4 August 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES NP
In the arbitration between:
A E VAN AS APPLICANT
THE NORTHERN PROVINCE DEPARTMENT OF EDUCATION RESPONDENT
1 . In this arbitration the Applicant seeks an order that the Department pay her salary (inclusive of benefits), from September 1999 to May 2000.
2 . It is the Department’s case, however, that the Applicant did not render nor tender any services during the period in question, and therefore, is not entitled to receive any remuneration.
3.1 Applicant chose to commence first. I shall deal with the evidence of the Applicant, Ms van As.
3.2 She has been in the service of the Department for approximately 20 years. She worked at the Kwena- Moloto College of Education.
3.3 A rationalisation took place at the College, and the lecturers received Directives concerning the anticipated redeployment.
3.4 This process commenced in 1997 and ender in September 1999.
3.5 Applicant was deployed to the Shingwedzi College of Education.
3.6 Shingwedzi is approximately 250 km from Petersburg. Applicant testified that she was the only educator who complied with the Directive and accepted the post at Shingwedzi.
3.7 She said that she had a property in Pietersburg and that her children were at school in Pietersburg.
3.8 In January 1999, she formed a relationship with a friend in Phalaborwa and requested the Department to transfer her there. This request was not granted.
3.9 She visited Pietersburg, shortly thereafter, and observed that her house was in a state of disrepair. At the same time, her child had just started at high school.
3.10 Applicant put in a formal request to be transferred to Pietersburg.
3.11 She met with the Superintendent General, Mr Ntsandeni and, she said, Professor Mahlangu, and explained her request. She said that the rector at Shingwedzi, Dr Lowan, supported her request to be transferred.
3.12 She said that Messrs Ntsandeni and Mahlangu said that she could come back to Pietersburg. At that time, she testified, there was to be a rationalisation process at Shingwedzi. Because of her anxiety and financial insecurity, the Applicant applied for a voluntary severance package (VSP) in or about April 1999.
3.13 She left Shingwedzi in April and returned only to obtain a document, to support her application for the VSP.
3.14 She said that she enquired from time to time about the VSP. In August, she was advised that the application had been declined.
3.15 Applicant testified that Professor Mahlangu had informed her that there was no problem with her relocating back to Pietersburg, providing she could find a post. In this regard, she went to the Technical College, the General Piet Joubert School and Oxa (not sure of the spelling), but was not successful in securing a post.
3.16 She said that the rector, Dr Lowan, suggested that she should communicate with her ex-colleagues at Kwena-Moloto. She went to Kwena- Moloto three or four times, but could not find any of her colleagues there.
3.17 She said although she had not received a specific directive, Dr Lowan, the rector, released her from his staff in March 1999. She said that her position had been declared redundant by Dr Lowan.
3.18 In May/June she joined a private institution, Polokwane Academy School, merely, as she put it, to provide assistance. She did not receive a salary, but merely received compensation of R2000.00 for her assistance.
3.19 Applicant said that she realised that she had mace a mistake to accept this appointment, while she was in the employ of the Department. She said that she was frustrated and did not think the matter through properly.
3.20 She said that in July she was still waiting for a response from the Department concerning her application for the VSP. She made an enquiry in July at the Venda Regional Office, and was informed that the application had been declined, and that she was to face a disciplinary enquiry. She was told to wait for the charges to be formulated. She received a letter to this effect in the middle of August.
3.21 She sought legal advice on this matter and the aspect of the threatened disciplinary enquiry. Dr Lowan, the rector, said he had no knowledge of any disciplinary investigation.
3.22 At the end of September, Applicant’s salary was not paid. Her counsel was advised that payment was stopped due to the fact that she had not tendered her services to the department. She and Advocate Van Den Ende, her counsel, went to the Department’s offices to enquire. They saw Mr Sekgole, Chief Director of Human Resources. They were informed that the salary was stopped because she had not tendered her services and because she had worked privately. Mr Sekgole told her that she was stationed at Shingwedzi and that she should be at her station.
3.23 She then reported to Dr Lowan at Shingwedzi. He informed her that her post was redundant and that there was no work for her to do. Advocate Van Ende advised her to tender her services and she took a letter to this effect to Dr Lowan on 29 September 1999.
3.24 The letter contained a tender in the following terms:
“Kindly confirm that my client is not absent without leave. Please confirm that my client may immediately return to her working station at your college, pending the payment of her severance payment.
She is well aware that her position at your College has become redundant, but she has no other work station to report to.”
3.25 Dr Lowan put certain documents in an envelope, including a letter drafted by him, and sealed the envelope.
3.26 The envelope was handed by Applicant and Advocate Van Ende to Mr Croukamp, a regional director.
3.27 Applicant said that neither she nor Advocate Van Den Ende received a response to their correspondence. This is a reference to the fact that Mr Sekgole had suggested that they write a letter to the Department setting out the position. This Adv. Van Den Ende did during September.
3.28 Applicant declared a dispute in November, and pursuant to partial settlement, obtained a placement, but only in July 2000.
3.29 It was put to the Applicant in cross-examination that she was not entitled to be paid, because she had not tendered her services during the period in question.
3.30 Applicant denied that she had not tendered her services and referred to her visits to the Kwena-Moloto College and to the various institutions referred to above. She earlier made reference to her written tender to take up her position in Shingwedzi in September 1999. It was put to her that Shingwedzi was in fact, her station and her place of work, and that her failure to be at her place of work could not be regarded by the Department as anything less than absenteeism from work. It was further put to the Applicant that the Kwena-Moloto College was still functioning in April, 1999, the time that Applicant said she had not seen anyone there.
3.31 It was further submitted that she had no right to merely leave her station, Shingwedzi, without first receiving some formal Notification, possibly in the form of a Directive from the Department.
3.32 ADVOCATE VAN DEN ENDE testified on behalf of Applicant. He said that he was consulted in July, when Applicant’s VSP was declined, together with the threat of a disciplinary enquiry. He telephoned the Department and was told that she should wait for the charges to be formulated.
3.33 In September, when her salary was not paid, Adv Van Den Ende again phoned the Department. He was told that it was because she was not on duty. He advised the Applicant to report for duty at Shingwedzi. It was at this stage that Applicant took his letter and went to see Dr Lowan at Shingwedzi.
3.34 He also went to see Mr Sekgole with the Applicant. They were informed that payment had been stopped because of the pending disciplinary enquiry and because of her private work.
3.35 The witness asked Mr Sekgole where she should go to work as she had already been released from Shingwedzi. He said that Mr Sekgole was most unhelpful. At that stage, he telephoned Dr Lowan and advised him that Applicant wanted to come back to the College. He confirmed that he sent a letter with the Applicant, dealing with the redundancy of her post.
3.36 He said that he took the sealed envelope which Applicant had brought from Dr Lowan and gave it to Mr Croukamp. Croukamp said that he would send it, together with a report, to Mr Sekgole.
3.37 He telephoned Mr Sekgole who confirmed that he had never received any documents from Mr Croukamp. This wan in October 1999.
4.1 MR SEKGOLE testified on behalf of the Department. He is Chief Director of Human Resources in the Department. He manages recruitment, disciplinary matters, retirement, discharges and redeployment of staff.
4.2 He said that he saw the Applicant on 2 occasions in relation to,
4.2.1 Stoppage of salary, and
4.2.2 The application for the VSP.
4.3 He said the question of placement came up, but was not the dominant theme of the meetings.
4.4 He said he asked Applicant if she knew of any reason why the payment had been stopped, and she replied in the negative.
4.5 Mr Sekgole said that he made an enquiry. He said he checked with his region and determined that the salary had been stopped because Applicant had apparently absconded from Shingwedzi. He said that Applicant was based at Shingwedzi and due to the fact that she had absconded, she was not entitled to receive payment.
4.6 He said, furthermore, that he established thereafter that Applicant had taken up employment at a private institution, without the permission of the department.
4.7 Mr Sekgole said that in his position as Chief Director of Human Resources, he was the only official in the region who could authorise transfers of senior employees. He said that the rector of a college did not have the authority to declare a post redundant, nor the authority to authorise a transfer. He said that in the event of a redundancy, the matter would be referred to the MEC and the MEC would be asked to abolish the post. He said that this was a formal process. He said, upon a post being declared redundant, the department would try and find alternative employment for the educator concerned. He said that he would personally be responsible for this action, and that the rector had no authority in this regard.
4.8 He said that if a rector did perform this function, this process would be regarded as null and void by the department.
4.9 He said, in the event of an application for a transfer, an applicant would have to wait for the transfer to be approved before actually physically moving. The Director of a specific region, he said, could make a decision regarding an application for transfer. This could not be done, he said, by the rector of a college.
4.10 It was put to the witness, in cross-examination, that Applicant had testified that she had a verbal agreement with Professor Mahlangu, wherein, Prof Mahlangu had said that she could come to Pietersburg and look for a post. The witness said that he was not aware of this agreement and could not admit or deny it.
4.11 With regard to the envelope that Dr Lowan had given to the Applicant, and which the Applicant and Adv Van Den Ende had given to Mr Croukamp, the witness said that he had no knowledge of this envelope, nor were the contents thereof brought to his attention. He said that he did not normally receive envelopes in his office and that the procedure would be that the documents would be removed from the envelope and that the documents would be placed in the Educator’s file. However, he said, that he had not received such documents.
4.12 It was furthermore put to the witness that the Applicant tendered her service to Dr Lowan at Shingwedzi, and that having so tendered, Applicant was entitled to receive remuneration. Mr Sekgole responded by saying that as far as he knew, the Applicant was till “at large” at this stage.
4.13 The next witness called on behalf of the Department, was PROF. MAHLANGU.
4.14 In chief, it was put to Prof Mahlangu that the Applicant had testified that she had reached an agreement with him whereby a transfer to Pietersburg had been granted on condition that she was to find a post. This was denied by Prof Mahlangu.
4.15 The witness furthermore denied that he had met with Applicant and Ntsandeni, as alleged. He said that if he had received a request for transfer as alleged by the Applicant, he would have referred such a request to the Chief Director. He said that the entire process of redeployment was removed from him and taken over by the Chief Directorate in 1999.
4.16 Mr Osman, on behalf of the Applicant argued that she was entitled to be paid her salary from the period September to May 2000. He said that the Applicant had not absconded nor had she ever received a notice to attend a disciplinary enquiry. In denying that Applicant had not provided service to the department, Mr Osman submitted that she was not allowed to tender her services. He referred to the tender contained in Advocate Van Den Ende’s letter and the physical tender when Applicant attended at the College on 29 September 1999. He said that this was pursuant to Mr Sekgole’s instructions that she must report to her workstation, which she immediately did. He said that the ball was in the Department’s court. If it chose to proceed by means of a disciplinary enquiry, it had the right to do so. However, by not proceeding with a disciplinary enquiry, the Department waived its rights to rely on the Applicant’s failure to provide her services.
4.17 With regard to the two months that she provided assistance to the Polokwane Institution, Mr Osman argued that it was unfair to punish the Applicant for a two month indiscretion after she had served the department loyally for 20 years. He said that Applicant should be paid her salary and that the period in question, namely May and June, should be deducted. He said that Applicant also tendered her service by going to the Kwena-Moloto Institution to ascertain if any positions were available.
4.18 He submitted in conclusion that it would be fair and just if her salary for the period September to May was paid and that the amount of four thousand rand, ie the money paid to Applicant in May and June was deducted therefrom.
4.19 It was argued, on behalf of the Department, that when an employee failed to tender services, that employee was not entitled to be remunerated. It was argued further that Applicant had left Kwena-Moloto on receipt of an instruction in the form of a Directive. No such Directive was received when Applicant left Shingwedzi. It was argued further that the Rector of Shingwedzi did not have the authority either to declare the Applicant’s post redundant, or to release her from her post. In this regard reference was made to the evidence to Mr Sekgole. It was argued that the Applicant did not approach the regional Director in order to gain assistance in finding a post, but only approached the Regional Director once she realised that her salary had been stopped. The purpose of this visit, it was submitted, was merely to determine why her salary had been stopped.
4.20 It is further submitted that the Applicant was not prevented from tendering her services. It was suggested that Applicant left Shingwedzi voluntarily in the hope that her voluntary severance application would be successful.
5.1 Having heard the evidence led at the arbitration, I am not wholly unsympathetic to the Applicant’s position. I appreciate the difficult circumstances, she found herself in during 1999. I think that the difficulties were exacerbated by the failure of the Department to revert back to her about her application for a voluntary severance package. The same goes, with respect to the formal application to be transferred to Pietersburg.
5.2 On the question of the transfer to Pietersburg, it is Applicant’s contention that she obtained the verbal permission of both Mr Ntsandeni and Professor Mahlangu, to relocate to Pietersburg, on condition that she could find herself a post. Professor Mahlangu has denied this arrangement. I do not wish to make credibility findings because I do not believe it is in the interest of the parties that such a finding be made. There is an ongoing relationship between them, and I believe that what is required at this stage is a rebuilding of that relationship rather than any negative input. However, I am satisfied that, even if Mr Mtsandeni and Prof Mahlangu had given the Applicant such verbal assurances, such arrangement could not be accepted as a valid agreement, due to the fact that it lacked any formality.
5.3 Furthermore, I am satisfied that Dr Lowan did not have the authority to declare the Applicant’s post redundant, and to release her from her services at the College. I believe that the Applicant, having being in the service of the Applicant for almost 20 years, should have been alive to this position.
5.4 I am also not satisfied that the Applicant can be regarded as having tendered her service by merely going though the motion of visiting the few institutions that she visited in or about April 1999, merely to ascertain whether any posts were available.
5.5 I do accept, however, that Applicant’s indiscretion in May and June is understandable in the circumstances which she presented in her evidence.
5.6 Mr Osman argued that Applicant should be paid from September, this being the date that she tendered her service to Dr Lowan. However, with due respect, I do not believe that I can just accept this tender in isolation. It has to be read within the context of the entire matter. If I accept, which I do, that Applicant ought not to have merely left the college in April and relocated herself to Pietersburg, which she did, it was just nog good enough, some six months later to physically arrive at the college and tender her services. It should have been known to Applicant that this tender could not have been accepted for practical and logistical reasons alone. I am pleased that Applicant has now obtained a post and I am satisfied that she will rebuild her relationship with the department.
5.7 However, I do not believe that Applicant is entitled to the relief that she seeks in this arbitration, and accordingly, the relief is denied.
Date: 4 AUGUST 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES NP
APPLICANT MS A E VAN AS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE SALARY & BENEFITS (NOT PAID)
DATE OF ARBITRATION
1 However, I do not believe that Applicant is entitled to the relief that she seeks in this arbitration, and accordingly, the relief is denied.
DATE OF AWARD 4 AUGUST 2000