Case Number: PSES 0135 NAT
Applicant: Department of Education
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 20 October 2000
Arbitrator: KS TIP (SC)
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 0135 KZN
In the arbitration between:
DEPARTMENT OF EDUCATION RESPONDENT
1 . INTRODUCTION:
1.1 This dispute has its origin in a change of system that was implemented by the Department in relation to the conduct and marking of examination scripts. Briefly described, the examinations here in question had previously been treated as “external” to the relevant schools and/or colleges and, correspondingly, as additional to the normal functions of CS educators. Accordingly, it had been the practice that educators who undertook such marking were remunerated thereof.
1.2 With the change of system, such examinations were viewed as being “internal” to the education process within a particular establishment. Hence, the marking of them was considered by the Department to be part of the normal range of duties of educators, consequently, they were no longer to be remunerated for such work.
1.3 For purposes of the present dispute, Examination Instruction number 8 of 1999, dated 3 March 1999, is the pertinent one. Paragraph 5.2 thereof provided as follows:
1.3.1 “Lecturers/Markers are expected to do the marking as part of their normal duties and they will therefor not be additionally remunerated for services rendered. No claim forms in this regard must be submitted to the DIR.: NEA. According to current national and international policies and practices, it is part and parcel of the functional duties of any lecturers? CS educator to lecture and assess the progress of their own students without additional remuneration”.
1.4 Examination Instruction number 8 of 1999 followed upon instruction number 23 of 1998, which I understand to have been in substantially similar terms.
1.5 The first step in the dispute process was taken on 18 February 1999 by SAUVSE, an affiliate of NAPTOSA, in the Kwazulu Natal region. That regional dispute was subsequently withdrawn and a national dispute was declared by NAPTOSA.
1.6 The dispute was referred to conciliation on, 7 May 1999, which process resulted in an advisory award made by Advocate Barlow. Thereafter, an arbitration was conducted before Mr Currin on, 11 August 1999. In essence, it was Mr Currin’s determination that he was empowered only to decide a dispute coached in terms of an allegation that there had been “unfair” conduct, relating to the provision of benefits to an “employee”. He held that he was unable to conclude that the conduct of the Department amounted to the withdrawal of a benefit.
1.7 Mr Currin, held further, that this terms of reference did not extend to a dispute relating to “whether or not the employer’s actions constituted a unilateral change to terms and condition of employment”. He accordingly made no finding in relation thereto.
1.8 Thereafter, on 1 February 2000, NAPTOSA declared a fresh dispute on the basis that the examination instruction amounted to an unlawful and unilateral change to the terms and condition of employment of the relevant CS educators. That dispute came before me in conciliation proceedings on 22 May 2000, which resulted in an agreement that the matter should proceed to arbitration, where the Department would raise an in limine objection that the dispute was res judicata. It is precisely that in limine objections that forms the subject matter of the present arbitration.
1.9 These proceedings were held on, 6 October 2000. On behalf of NAPTOSA, Mr Nolte contended that the dispute as presently formulated, had not been decided at any earlier stage and was thereof not res judicata. Appearing for the Department, Mr Kennedy argued that the present dispute is in essence the same dispute as the one previously declared by NAPTOSA in April 1999 and that it was resolved by arbitration in terms of the arbitration award of Mr Currin in August 1999.
2 . A REVIEW OF THE DISPUTE AND ITS DEFINITION:
2.1 In order to evaluate the rival contentions advanced by the parties, it is necessary to examine in greater detail, the manner in which the dispute has been formulated from time to time, in the course of the history, I have briefly reviewed the above. As already indicated, the dispute was initially declared by SAUVSE on, 18 February 1999 and the letter of dispute are in the following terms:
2.1.1 The dispute is declared on behalf of CS educators who are fully paid-up members of the South African Union for Vocational and Specialised Education (SAUVSE), in the Kwazulu Natal Education Department in terms of, Schedule 7 of the Labour Relations Act: Residual Unfair Labour Practices, par 2 (1) (b), which reads as follows:
18.104.22.168 “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”.
2.1.2 The Kwazulu Natal Education Department refuses to remunerate CS educators for duties performed in respect of public examinations in terms of, par.1 of Chapter E of the Personnel Administration Measures (PAM), which reads as follows:
22.214.171.124 “A person who has been appointed to perform duties in respect of a public examination, shall be remunerated for actual work done in respect of a specific category of examination-related work”.
2.2 The conversion of the regional dispute into a national one, was affected through inter alia a letter for NAPTOSA to the Department, dated 15 April 1999. That letter included the following statements:
2.2.1 “A dispute was declared against the Kwazulu Natal Education Department by the SAUVSE and affiliate of NAPTOSA, regarding the unilateral change in the conditions of service of CS educators by not remunerating these CS educators who act as marker of examination scripts. (N1 - Instructional offering in the engineering field of study)”.
2.2.2 “NAPTOSA, herewith declares a dispute against the Department of Education (national) as the department responsible for the change in policy, which resulted in the non-payment of the markers and also against the nine provincial education departments as the employing departments of these educators. The attention of the Department is specially drawn to the instruction in the PAM, Chapter E”.
2.3 The original dispute declared against the Kwazulu Natal Education Department attached as, Annexure C and must be regarded as the basis for the dispute against the Department of Education and the provincial departments of education.
2.4 As is apparent from these passages, although NAPTOSA had incorporated SAUVSE’s reference to a dispute concerning “benefits”, it at the same time described the dispute as one “regarding the unilateral change in the conditions of service”.
2.5 Although Advocate Barlow delivered only and advisory award, that award was referred to in the proceeding before me on the basis that it gave an insight into the view of the parties in relation to the nature of the dispute that had been canvassed by the parties in their submissions to him. Paragraph 9 of the advisory award is in the following terms and I draw attention of his reference to “change the terms and conditions”:
2.5.1 “It is my considered opinion that the following issues fail to be decided in determining this dispute:
126.96.36.199 Does the examination instruction direction to lecturers to internally mark the scripts of their students without remuneration constitute a change to the terms and conditions of employment of those lecturers?
188.8.131.52 If so, has that change to the terms and conditions of employment had been achieved with the consent of the lecturers concerned?
184.108.40.206 If, however, the examination instruction direction does not contravene the terms and conditions upon which the lecturers agree to be employed, then and in that event, there is no change to the terms and conditions of employment whatsoever”.
1.1 Advocate Barlow came to the following conclusion:
2.6.1 In the circumstances, I am of the view that I am compelled to the conclusion in this advisory award based upon the evidence adduced, that the examination instruction calling upon lecturers to perform marking of answers books for N1 instructional offerings in the engineering field of study constitutes a unilateral change to the terms and conditions of employment of the lecturer. However, I do not agree with the NAPTOSA contention that the examination instruction constitutes the withdrawal of a benefit. The contractual terms of employment do not appear to contain such a term which could be construed as a “benefit”, such term being defined as an entitlement arising out of the terms of the contract of employment, e.g. medical aid contribution, car allowance, etc.”.
1.2 Reacting to the advisory award, NAPTOSA addressed the Department in the following terms:
2.7.1 “NAPTOSA, is in receipt of the advisory award by Advocate Barlow, emanating from the conciliation meeting which took place on, Friday, 7 May 1999.
2.7.2 NAPTOSA notes that “calling upon lecturers to perform marking of answers books for N1 instructional offerings in the engineering field of study, constitute an unilateral to the terms and conditions fo employment of the lecturer”.
2.7.3 In the light of the above, NAPTOSA wishes to enquire from the Department of Education how it intends to address this irregularity”.
1.3 Responding to this communication, the Department recorded its position in a letter dated, 7 June 1998, as follows:
2.8.1 “The Department of Education is of the view that the advisory award by Advocate Graham Barlow is in favour of the Department.
2.8.2 This is borne out by the following extract from the advisory award:
220.127.116.11 “However, I do not agree with the NAPTOSA contention that the examination instruction constitutes the withdrawal of a benefit. The contractual terms of employment do not appear to contain such a term which could be contend as a “benefit”, such term being defined as an entitlement arising out of the terms of the contract of employment, e.g. medical aid contribution, car allowance, etc.”.
2.8.3 The Department of Education is still of the view that it has not unilaterally changed the terms and conditions of employment of these lecturers. It is our view that these lecturers do not qualify for any additional remuneration as the duties performed are part of their official duties and responsibilities towards their own students.
2.8.4 Secondly, we believe that the compilation of term marks and internal marking (without remuneration), has been an accepted practice in technical colleges since 1992, in all instructional programmes, except the Engineering field of study. The extension of term marks and internal marking to the Engineering field of study, is regarded as part of the phasing in process of an education policy which had followed the correct channels”.
1.4 For the purpose of the submission of the dispute for arbitration by Mr Currin, the Department field written submissions. In the introduction to those submissions, the Department set out its understanding of the dispute, in the following terms:
2.9.1 “Following the conciliation and advisory arbitration meetings in which the dispute was defined, the Department’s submissions are based on the understanding that the dispute is:
18.104.22.168 “that the requesting of lecturers to perform marking of answer books for N1 instructional offering in the Engineering Field of study in technical colleges through circular (Examination instruction) no.8 of 1999 dated, 3 March 1999, addressed to, Technical Colleges, the Committee of Technical Colleges principals and the Technical Colleges of South Africa, constitutes a unilateral change to the terms and conditions of employment of the lecturer”.
1.5 A perusal of the written submissions, which were substantial, reveals that, consistently with the introductory remarks, they were for the greatest part concerned with the issue of “unilateral change” and only to a very minor extent with the issue of “a benefit”. The material placed before me did not include any written submission that may have been filed by NAPTOSA in the arbitration before Mr Currin. However, there is nothing to suggest that NAPTOSA had taken up the position that the Department had misconceived the nature of the dispute. Indeed, it is clear form the issue of “unilateral change”. See paragraph 11 of that award:
2.10.1 “Although both parties, during the course of their respectable arguments used the terms “unilateral change of terms and conditions of employment”, that is not the basis of this dispute as declared by the Union. Paragraph 1.2 (d) of Resolution 7 of 1997 provides for the declaration of a dispute resulting from a unilateral change to terms and conditions of employment as contained in Section 64 (4) of the Labour Relations Act. As already mentioned, this dispute refers to an alleged unfair labour practice as contemplated in Schedule 7, item 2 (1) of the Act”.
1.6 Mr Currin then went on to define his understanding of the dispute he was required to determine, in the following manner:
2.11.1 “It is trite law that an Arbitrator is strictly bound by his or her terms of reference. In the circumstances, I am, in law, obliged to consider this matter on the basis of the dispute declared. Therefore, although there were allegations and argument regarding the alleged unilateral change to the terms and conditions of employment, I am not entitled to make any finding in that regard.
2.11.2 The question which I am required to consider, is whether or not Examination Instruction No. 8 of 1999 dated, 3 March 1999, constitutes unfair conduct by the employer relating to the provision of benefits to an employee. The question in this case is whether or not the relevant Examination Instruction amounted to the withdrawal of a benefit”.
1.7 Having thus, defined the nature of the dispute before him, Mr Currin concluded that he was unable to find that the conduct of the employer had amounted to the withdrawal of a benefit. He observed further:
2.12.1 “Had the Union, with the consent of the Department, amended the terms of reference by referring the dispute in terms of paragraph 1.2 (d) of Resolution 7 of 1997, I would have been able to make a finding as to whether or not the employer’s actions constituted a unilateral change to terms and conditions of employment”.
1.8 From this, it follows that the particular question as to whether or not the examination instruction constituted a “unilateral change to terms and conditions of employment” has not been determined. Mr Nolte relied on this and the corollary fact that distinct grounds of dispute are reflected in, respectively, paragraph 1.2 (d) and paragraph 1.2 (h) of ELRC Resolution No. 7 of 1997, in support of his argument that the dispute now before me, is not res judicata.
1.9 Mr Kennedy countered this submission by distinguishing between, on the one hand, a “dispute” and on the other, the “grounds” that may be advanced in support thereof. Put differently, he relied on a difference between the true nature of the “dispute” and the particular content of the “argument” that might be presented in relation thereto. Mr Kennedy contended further that the real dispute has at all times been whether or not the Department was lawfully entitled to implement the relevant examination instruction, which had the effect that educators who had previously been remunerated, would no longer be so. Hence, ran this argument, a formulation in terms of the “withdrawal of a benefit” is merely a ground raised in support of the relief sought, which essentially amounted to the reinstatement of the previous remuneration system. So, too, was the reference to “a unilateral change of terms and conditions of employment” to be treated as a ground in support of the rue relief sought.
1.10 Mr Kennedy referred to the judgement of Conradie JA in Dumisani & another vs Mintroad Sawmills (Pty.) Limited (2000) 21 ILJ (LAC):
2.15.1 It is against public opinion that a litigant should on the sam grounds be able to keep demanding the sam relief from the same adversary. The rule is expressed by saying that a valid defence of res judicata may be raised where the same thing has on the same ground earlier been demanded from the party.
22.214.171.124 “Where a court has come to a decision on the merits of a question in issue, that question, at any rate as a causa petendi of the same thing between the same parties, cannot be resuscitated in subsequent proceedings”.
126.96.36.199 African Farms & Townships Limited vs Cape Town Municipality 1963 (2) SA 555 (A) at 562D per Steyn CJ, approved in Horowitz vs Brock & others 1988 (2) SA 160 (A) at 178H-J.
2.15.2 It does not, in my view, matter that the “thing demanded” in the firs application was an interdict preventing the respondent from proceeding with the retrenchments without having complied with the provision of s 189 (3) and in the second application, was a declaration that the retrenchees had been unfairly dismissed and were to be reinstated. In each case the essential facts in dispute were the same and the same principles of law required to be applied. The judgment in Kommissaris van Binnelandse Inkomste vs ABSA Bank Bpk 1995 (1) SA 653 (A)
Has now made it clear that the doctrine of issue estoppel, as it has been applied in our law, has led to a new appreciation of the traditional res judicata doctrine?”
1.11 It will be noted that Conradie JA referred in paragraph 6 to “the same grounds”. In my respectful view, the use of that phrase must be interpreted within the context of the decision. It does not literarily mean that the doctrine of res judicata will apply only where an identical ground is reproduced from one action to the next. I interpret the phrase to be equivalent to the notion of “cause of action”.. If it were not so, the judgement would be authority for it being legitimate to pursue the same relief on one ground and, in the event of it failing, to institute a fresh action from the same relief on the basis of a different ground, which process could continue for so long as ingenuity produced new and apparently plausible grounds in support of the relief sought. Plainly, with respect, that was not the intention of the LAC in this case.
1.12 Mr Kennedy relied also and more pertinently on the decision of the Labour Appeal Court in Fidelity Guards (Pty.) Limited vs Professional Transport Workers Union & others (1999) 20 ILJ 82 (LAC). The judgement of Myburgh JP set out some general considerations relating to the defence of res judicata:
2.17.1 :The cause of action is the same whenever the same matter is in issue. The same issue must have been adjudicated upon. As issue is a matter of fact or question of law in dispute between two or more parties which a court is called upon by the parties to determine and pronounce upon in its judgement, and is relevant to the relief sought. The reason fo the rule is to prevent difficulties arising from discordant of mutually contradictory decisions die to the same action being aired more than once in different judicial proceeding, Voet 44.2.1. The object of the rule is that of public policy which requires that there should be an end to litigation and that a litigant should not be harassed twice upon the same cause. The ratio underlying the rule is that the law requires a party with a single cause of action to claim in one and the same action whatever remedies the law accords him upon such cause. The strict common law requirement for the defence of res judicata should not be taken literally and in all cases applied as inflexible rules. There is room from the adaptation and extension of the rules. Every case has to be decided on its own facts” (At 86 B-G).
1.13 See also paragraph (8) of the judgement at 86 H-I:
2.18.1 “The enquiry in this matter is whether the cause of action in the first application (heard by Revelas J) was the same in the second application which is the subject-matter of this appeal. In both applications the contention was that the strike was unprotected. What differed was the basis for that contention. In my view, the cause of action was nevertheless the same, namely that the strike was unprotected fro want of compliance with the provisions of the 1995 Act.”
1.14 See further the question postulated and answer given at 87 D - F:
2.19.1 “If an employer in the initial application contends that the strike is unprotected because of a procedural defect, such as that the 48 hours’ notice has not been given, and fails in its application, can the employer thereafter approach the court on another basis, for example, that the strikers are bound by a collective agreement that prohibits a strike in respect of the issue in dispute?
2.19.2 The answer must be in the negative. In an application for a declaratory order and an interdict on the basis that a strike is unprotected, the employer is obliged to raise all its contentions in that application. It is not entitled to litigate piecemeal with the union and its members”.
1.15 In my view, this analysis is applicable directly to the facts and circumstances fo the matter before me and, it follows, I consider Mr Kennedy’s submissions to be well found. On a proper construction, there are not two disputes, the first being equivalent to “the unfair withholding of remuneration for marking examination scripts, as a result of the wrongful withdrawal of a benefit”, with the second dispute being tantamount to “the unfair withholding of remuneration for the marking of examination scripts, as a result of a unilateral change to the terms and conditions of employment of educators”.
1.16 There is only one dispute. The dispute is whether or not educators should be paid for this work. There were two grounds upon which that dispute could have been advanced. The on related to the “benefit” contention and the other ground related to the “unilateral change” ground. Ideally, those two grounds should have been pleaded in the alternative as the basis upon which the dispute was to be determined.
1.17 Mr Nolte sought to meet this difficulty a contention that the relief sought pursuant to the first formulation of dispute (i.e. the “benefit” contention) was intended to achieve only a declaratory order, whereas the new and current referral of the dispute was intended to achieve substantive relief. I am unable to agree with this submission. There is no warrant for the view that the union was initially interested in no more than a declaratory order. Indeed, it is clear from the very first letter recording the dispute, being that of, 18 February 1999, that it was squarely contended that union members were “entitled to receive remuneration for this work”. That was coupled with the statement that many educators had indicated that they would not make themselves available for examination related work. Plainly, that statement bore directly upon the practical issue of whether or not they would be remunerated for such work.
1.18 The notion that there are two entirely discreet disputes is also not borne out by the approach of the parties, including NAPTOSA, in the course of the processing of the dispute that ultimately led to the arbitration hear by Mr Currin. I have already and extensively set out in this award the relevant portions from the associated documentation. As is evident therefrom, the contention that there had been a unilateral change to the forms and conditions of the affected educators was broached at an early stage and remained part of the process thereafter, up to and including the contentions advanced to Mr Currin. Against that perspective, Mr Kennedy argues, rightly in my view, that the only relief open to NAPTOSA, once Mr Currin had delivered this determination, was to assail that award on the ground that Mr Currin had take, too narrow and technical a view of the terms of reference that had been placed before me by the parties. What was not open to th union, was to embark upon a fresh round of litigation concerning the same essential factual matrix and in which the same essential relief was to be achieved. In this regard, NAPTOSA has taken up a clear position. Mr Nolte argued that Mr Currin had correctly performed his duties as an arbitrator and that there was no room at all for a review of that award.
1.19 Among the authorities cited by Mr Nolte in his submission to me was the decision of the Labour Appeal Court in Zeuna-Starker Bop (Pty) Ltd vs National Union of Metal Workers of South Africa (1999) 20 ILJ 108 (LAC) at 110 A - D. In my view, those dicta do not assist NAPTOSA. They concern the duty of a conciliator to determine the true dispute between the parties. They do not concern the application of the res judicata doctrine in case such as the present one.
1.20 Mr Nolte also relied on FGWU & Others vs Picardi Hotels Ltd (1999) 12 BLLR 1274 (LC) at 1277 - 8. The facts in that case were however different from those before me, in that Mlambo J found that the res judicata defence had disposed on only portion of the relief claimed. The remainder, he held, still presented an intact and justiciable claim. The circumstances of the case before me differ from this in Picardi Hotels, since there is here only one claim, being for a determination that educators should be remunerated for marking examinations scripts of the kind here in question. Although there are different grounds upon which the claim could be pursued, the claim itself does not lead itself to fragmentation.
1.21 Ultimately, consideration of equity underline the defence of res judicata. See Kommissaris van Binnelandse Inkomste vs ABSA Bank Bpk 1995 (1) SA 653 (A) at 676 C. That there is in the present matter a substantial consideration on grounds of equity in favour of NAPTOSA and, in particular, its members, is my view clear. Although there was reference in the relevant documentation (as set out above) to the view that there had been a unilateral change to the terms and conditions of employment of educators who marked examination scripts, the cogency of that contention has never been decided. One can readily appreciate, not without sympathy, that a potential for frustration is to be found herein.
1.22 Against the recognition of such elements of equity must however be weighed the considerations that underpin the doctrine of res judicata for those, too, are grounded in strong considerations of equity and public policy. For present purposes, paramount amongst them is the entitlement of one party to a dispute to be called upon only once to meet a particular grievance, It was at all times open to NAPTOSA to ensure that its referral of the dispute was sufficiently comprehensive.
1.23 In the context of this matter and its attendant circumstance, it is my conclusion that this latter se of considerations outweighs the first. The Department has in no culpable sense been the instrument of the frustration of NAPTOSA and its members.
1.24 It is accordingly my conclusion that the Department was entitled to raise the defence of res judicata and that such defence satisfies the applicable test. It is my determination that the in limine objection raised by the Department is upheld. There is no order as to costs.
KS TIP (SC)
DATED: 13 OCTOBER 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 0135 NAT
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR KS TIP (SC)
DATE OF ARBITRATION 06 OCTOBER 2000
APPLICANT MR NOLTE
RESPONDENT MR KENNEDY
1 It is accordingly my conclusion that the Department was entitled to raise the defence of res judicata and that such defence satisfies the applicable test. It is my determination that the in limine objection raised by the Department is upheld. There is no order as to costs.
DATE OF AWARD 20 OCTOBER 2000