Case Number: PSES 0665; 0671; 0664; 0663NP
Applicant: J TLOU, N MANTOME, R MONARE, M SEROTO
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 5 December 2000
Arbitrator: J LE ROUX
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 0665; 0671; 0664; 0663NP
In the arbitration between:
J TLOU FIRST APPLICANT
N MANTOME SECOND APPLICANT
R MONARE THIRD APPLICANT
M SEROTO FOURTH APPLICANT
DEPARTMENT OF EDUCATION NORTHERN PROVINCE RESPONDENT
1 . HEARING AND REPRESENTATION
1.1 This arbitration came before me as a result of the provisions of clause 2.8 of Resolution 6 of 1998, the Procedure for Rationalization and Redeployment of Educators in the Provisioning of Educator Posts (Resolution 6).
1.2 I was informed, and it was undisputed that the dispute was “discussed” in the relevant Provincial Task Team (PTT), and that the parties were unable to resolve the dispute, where after it was referred to the Inter-provincial Task Team (IPTT). Also at this level the parties failed to resolve the dispute, and it was then agreed that the matter be arbitrated by the Education Labour Relations Council.
1.3 Mr M Maseko appeared on behalf of the Department of Education: Northern Province (the Department of Employer), and the four employees appeared on behalf of themselves.
1.4 Four separate arbitrations were set down, but the parties agreed that because all four employees were from the same school, and the same facts would apply to all four of them, one arbitration would be held.
2 . ISSUES
The only dispute that I need to determine is whether the process of rationalization and redeployment relating to the four employees, and declaring them to be in excess was procedurally and substantively fair, and in accordance with Resolution 6.
3 . BACKGROUND
3.1 On 11 November 1998 an agreement was signed between the Department of Education and three trade unions. The terms of the agreement was made applicable to the employer and all employees of the employer as defined in the Employment of Educators Act of 1998, whether such employees are members of a trade union, party to this agreement, or not. The parties agreed to the content and applicability of a document entitled “Procedure for Rationalization and Redeployment of Educators in the Provisioning of Educators Posts”, known as Annexure A.
3.2 The procedures in Annexure A provided for the Rationalization and Redeployment of Educators within educational institutions to achieve equity in educators staff provisioning in the said institutions in terms of approval policy on educator posts provisioning.
3.3 The following principles are important :
3.3.1 All educators who are affected by the process will be treated fairly.
3.3.2 The continued employment in education of all educators affected will be ensured.
3.3.3 The transfer of educators in posts declared in excess in the process of rationalization is compulsory.
3.3.4 All educators should be treated in the same way. This effectively meant that qualifications of educators would not be taken into account in the process.
3.4 The following factors in the determination of educators in excess are important :
3.4.1 The principal of a school must consult with the educator staff of the institution at a formal meeting, and he then may recommend that certain educators be declared in excess to the head of the Provincial Education Department via the circuit/district office, that may accept or reject such recommendation.
3.4.2 After 3.4.1 above, is considered the Circuit/District Manager together with the principals shall identify educators in excess by taking the following factors into account:
18.104.22.168 The views of the educator staff expressed at the formal meeting.
22.214.171.124 The needs of the institution.
126.96.36.199 If two or more educators are competing for the same post the principle of last in first out (LIFO) shall be applied.
3.5 Although it is not strictly relevant for the purposes of this arbitration, I should mention that all educators who were declared in excess and who cannot be redeployed due to no fault of the educator, shall be held in excess of the present staff establishment until he or she can suitable be redeployed. All costs relating to transfer of educators shall be borne by the Provincial Education Department. The effect of this is that Resolution 6 is not a process of retrenchment but merely a process of ensure that all learners have equal access to the available educators.
4 . FACTS
4.1 Ms Tlou complained that the process of rationalization and redeployment was applied unfairly to her because she was declared in excess after the junior and senior phases of the Secondary School were combined which resulted in her being a junior employee when compared with the other English teachers in both phases. She stated that if LIFO were applied in only one phase then she would not have been declared in excess.
4.2 Ms Tlou’s main contention therefore was that she was treated unfairly because the phases were combined before LIFO was applied. She relief heavily on clause 5.7.3 of Annexure A of Resolution 6 that reads as follows :
“5.7 The Circuit/District Manager must declare an audit in terms of the schools that fall within his/her circuit/district. The audit must include but not limit to, the following information :
5.7.3 Total number of educators declared in excess
Per phase and subject field; and
4.3 Clearly this clause cannot be of any assistance because it pertains to the audit that must be declared by the Circuit/District Manager.
4.4 Determination of educators in excess is regulated in clause 6, and the application of LIFO in phases are not regulated, but are left to the discretion of the principal together with the Circuit/District Manager. Furthermore the addendum to the guidelines document, which was handed in as Exhibit B, and which purpose was to assist heads of the various institutions who determined educators in excess, clearly spelt out that the phases of secondary schools must be combined before LIFO is applied.
4.5 I am therefore of the view that Ms Tlou was not unfairly treated.
4.6 The main complaint of Ms Montane was that in terms of the staff establishment two teachers were needed to teach mathematics at the school and that there were only two teachers that taught mathematics, and still she was declared in excess even though she was one of the two mathematics teachers.
4.7 The employer stated that the Tsonga teacher was also able to teach mathematics and Ms Mantome was not able to teach Tsonga. Because of the needs of the institution, i.e. that a teacher is needed to teach Tsonga, preference had to be given to the Tsonga teacher, and Ms Mantome had to be declared in excess even though she was at the school longer than the Tsonga teacher.
4.8 I have to agree with the employer that the need of the institution is an important factor when considering teachers in excess. If Ms Mantome was appointed and the Tsonga teacher was declared in excess, it would have meant that once the Tsonga teacher was redeployed, the school would have been without a Tsonga teacher although there were learners for Tsonga. Such a situation cannot be fruitful to learning.
4.9 I therefore find that Ms Mantome was not treated unfairly.
4.10 The main complaint of Ms Monare was substantially the same as that of Ms Tlou namely that the two phases were taken together before they applied LIFO. The only difference was that Ms Monare taught Sepedi and not English like Ms Tlou. I am of the view that the same principles would apply, and that the argument of Ms Monare would have the same flaws as that of Ms Tlou.
4.11 Based on the reasoning I applied in Ms Tlou’s case, I also find that Ms Monare was not unfairly treated.
4.12 The main complaint of Ms Seroto was that she was declared in excess as a result of one Mr Mabuza who was given the educator’s post in Geography for the first time, whereas she had been the Geography teacher since 1977.
4.13 The employer argued that the only instance in which qualification could be considered was when the staff establishment required a certain amount of teachers with an HOD Diploma. In the present case the staff establishment required five HOD teachers, and Mr Mabuza was one with a HOD. It also appeared that that specific school ran short of teachers with HOD Diplomas and because Mr Mabuza had an HOD, and could teach Geography the employee had to be declared in excess.
4.14 On the fact of it this would appear unfair, but, having regard to the audit, the consultation process, and that the parties agreed to the minimum requirements regarding HOD Diplomas, I cannot find that the employee was treated unfairly.
4.15 I am therefore of the view that none of the employees were treated unfairly through the process of rationalization and redeployment as set out in Resolution 6.
5 . AWARD
My award accordingly is as follows :
5.1 The process of rationalization and redeployment as conducted by Makhitjisha Senior Secondary School was fair.
5.2 J Tlou, N Mantome, R Monare and M Seroto were treated fairly, and in terms of Resolution 6 of 1998.
J LE ROUX
Date : 5 December 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 0665; 0671; 0664; 0663NP
APPLICANT J TLOU, N MANTOME, R MONARE, M SEROTO
RESPONDENT DEPARTMENT OF EDUCATION
NATURE PROCESS OF RATIONALIZATION
ARBITRATOR J LE ROUX
DATE OF ARBITRATION 5 DECEMBER 2000
RESPONDENT MR M MASEKO
The process of rationalization and redeployment as conducted by Makhitjisha Senior Secondary School was fair.
J Tlou, N Mantome, R Monare and M Seroto were treated fairly, and in terms of Resolution 6 of 1998.
DATE OF AWARD 5 DECEMBER 2000