Case Number: CAR 000 336
Province: Eastern Cape
Applicant: M CAROLUS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 11 August 2000
EDUCATION LABOUR RELATIONS COUNCIL:
Case no: CAR 000336
In the matter between:
M CAROLUS Applicant
DEPARTMENT OF EDUCATION:
(WESTERN CAPE PROVINCE) Respondent
The grievant is Ms Miriam Carolus of the Mimosa Primary School, Bonteheuwel. The dispute before me arose over the “rightsizing” process that led to the grievance being declared supernumerary in February 2000.
The relevant section of my terms of reference reads: “To determine whether the rightsizing process at Mimoza Primary School resulting in the selection of Ms Carolus to be subject to redeployment was procedurally and substantially fair”. The parties relied on Resolution 6 of 1998 and Circular 0146 of 1998 in support of their conflicting submissions about the process.
3.THE ISSUES AND THE EVIDENCE:
3.1 Mr Abrahams, for the grievant, based his challenge first on the failure by the Respondent to apply weighting in performing the calculations leading to determining the number of teachers permissible in the Junior Primary section at the school and secondly on the allegedly unfair criterion used to distinguish between the grievant and the only other junior primary colleague vulnerable to rationalisation at the time
3.2 In her evidence the grievant contended that she had been given insufficient time to respond to the process and that there had been inadequate consultations on the matter by the Principal of the school.
3.3 She did, however, expressly state that there was a need to cut one teaching post at the school, but contended that the senior primary section had the surplus. It became apparent during her evidence that some members of the senior primary staff were junior to her and that she was capable of teaching at senior primary level.
3.4 The evidence was that the junior section or “phase” had 8 teachers and 288 pupils leading to an unweighted ratio of fewer than 39 pupils per teacher, while the senior phase had 8 teachers to cope with 317 pupils at the relevant time. The application of weighting, it was contended would allow an extra teacher i.e 8 in the junior phase and make the ratio in the junior phase better than of the seniors on whom the blow would then fall more appropriately.
3.5 The grievant, who was a good witness, as were all of those called to testify, explained why she felt there had been inadequate consultation, and dealt with her objection to the manner in which LIFO had been applied against her.
3.6 Resolution 6, the minutes of the staff meeting and the evidence of her Principal, clearly showed nothing untoward about the consultation and timing of the procedure and the minutes show that details relating to the grievant were corrected by here.
3.7 The grievant’s objection to the application of LIFO is that she and the other potential “retrenchee” had exactly the same length of service, save that the grievant had only been made a permanent member of staff much later.
3.8 The provision reads:
“Of a decision still has to be taken regarding two or more educators competing for the same post, the principle of LIFO shall be applied. The period of continuous service shall be the service period for the application of LIFO and shall include all continuous service rendered at any public educational institution”.
3.9 Mr Abrahams pointed out that paragraph 6.2.2(d) defines LIFO only in terms of continuous service and that the greivant’s temporary status should not have prejudiced her and that the spinning of a coin would have been fairer. Ironically, it was the Union Representative, Mr Snayer, who had suggested the distinction in order to resolve the problem when the decision was taken.
3.10 Mr Ross, the principal, testified about the dramatic drop in Grade 1 numbers as a result of the new age restrictions and how last year he had offered the grievant another teacher option of moving to senior primary which the grievant had declined to do.
3.11 Mr Edwards, the Circuit Manager, testified about weighting in general and about the right-sizing process at the school in particular. His evidence about weighting was not seriously challenged in cross-examination, although I required him to explain the whole principle at length. In brief his evidence was that weighting was only used to ensure that no school had a less favourable teacher pupil ration that 1:39. Given the numbers I have set out above weighting did not come into the picture.
3.12 He was vigorously cross-examined on the LIFO issue. His position was that there had been consensus on the point, though the decision had ultimately been his, and that he regarded permanency as having been an objective yardstick to resolve a novel problem.
4.1 In his argument, Mr Abrahams contended that if weighting was to be used only for the school as a whole and not for the junior grades alone, then LIFO should be applied in the same manner.
4.2 The argument interprets the function of weighting quite differently from the explanation given by Mr Edwards, but, even assuming it is correct, it falls foul of paragraph 5.7 of Resolution 6, which clearly targets educators in excess “per phase” rather than educators per school. The question of LIFO only becomes applicable within the separate phases.
4.3 My own contention about persons who would be able to transcend phases, such as the grievant, and benefit from LIFO in the other phase, are also dealt with by paragraph 5.7 which is itself justified by practicalities within the cumbersome system of a large education department.
4.4 Mr Abrahams said there is a precedent for the lottery approach for persons of equal seniority which was implemented in a case involving 6 persons of equal seniority at AZ Burman School. I have been unable to find the case, but find the principle undesirable anyway. In my view, other objective criteria relating to the educators themselves should be established in such a case rather than external chance.
4.5 That being my view, it remains to be considered whether the approach adopted in this case was justifiable. The words “continuous basis” are used and defined in paragraph 3.9 of Resolution 6 in the following context:
“3.9.1 who does not meet the minimum requirements for appointment; and
ii. who has been employed on a continuous basis by a provincial department …
shall be treated in the same way as a permanently employed educator for the purpose of rationalization and redeployment.
(Continuous basis means a period where there is no break in service, including instances where annual fixed term contracts were used, provided that the period of non service from on contract to the next was 120 days or less”.
4.6 It seems to me that the purpose of paragraph 6.2.2 is solely to exclude broken service and to include continuous service at different education institutions. The fact remains that the LIFO definition in the Resolution makes no distinction between permanent and temporary and the definition of “continuous basis” in paragraph 3.9 expressly incorporates instances of annual contracts. Paragraph 3.6 which deals with currently temporary educators of two kinds, is of no assistance in this matter. The ELRC, in setting the LIFO as the crucial criterion, was clearly trying to impose an objective yardstick.
4.7 In general, where two employees have equal seniority am employer forced to retrench one of them would be entitled to apply other criteria which should be as objective as possible, but may relate to individual merit. In this case, Mr Ross refused to be drawn into an assessment of the two teachers, which led to the suggestion by Mr Snayers.
4.8 In principle it is a perfectly reasonable and objective suggestion, and, as submitted by Mr Peterson for the Department, it took place within a transparent and objective process. Had it been decided on a factory unfettered by the provisions of paragraph 3.9, it would have been a completely acceptable solution.
4.9 As it is, it clearly offends against paragraph 3.9, even though it was agreed on by all concerned, and therefore cannot be held to have been procedurally and substantially fair.
I accordingly direct that the right-sizing process be repeated and recommend that in the event of a tie in seniority in terms of Resolution 6, another means of determining the person subject to redeployment be agreed upon.
11 AUGUST 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER CAR 000 336
APPLICANT M CAROLUS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE RIGHTSIZING PROCESS
DATE OF ARBITRATION 11 AUGUST 2000
The right-sizing process should be repeated and in the event of a tie in seniority in terms of Resolution 6, another means of determining the person subject to redeployment be agreed upon.
DATE OF AWARD 11 AUGUST 2000