PSES 11/99 0774 FS
PSES 11/99 0774 FS
Award Date:
16 March 2001
Case Number: PSES 11/99 0774 FS
Province: Free State
Applicant: SADTU obo I R MOLOKE
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Venue: KROONSTAD
Award Date: 16 March 2001
Arbitrator: HANS THABO NGOBENI
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 11/99 0774 FS
In the arbitration between:
SADTU obo I R MOLOKE APPLICANT
and
FREE STATE DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATION AWARD
1 .
INTRODUCTION
1.1 The arbitration was heard on 10 October 1999, 30 October 1999 and 27 February 2001 at the Kroonstad District office. The department was represented by Mr T B I Tleru and the Applicant was represented by SADTU through Mr M Y Duma. The matter that was brought for arbitration was defined as the re-instatement of the Applicant. In this context the arbitration was to decide on the procedural and substantive fairness or otherwise of the matter before myself.
1.2 At the start of the arbitration the two parties submitted that they will lead and submit documentation proof only. However, it emerged that there is a need for oral evidence. It is for this reason that both the documentary and oral evidence was led in this arbitration.
2 .
THE APPLICANT’S CASE
2.1 In his submission the Applicant indicated he was employed as a substitute teacher on a fixed contract from June 1995 to December 1995. Such employment was placed at the Rooipoortjie School. It was also indicated by the Applicant that he was also employed at the Pickery Farm School (PFS) from 1 January 1996 to 31 March 1996. This employment was of a temporary nature. An assumption of duty form was submitted to this arbitration. It indicates that the previous school was Wembley. It was signed by the manager and the circuit inspector. In the process the Applicant did not receive his salary and complained to the Department. The response the Department gave was that the Applicant was not in the employ of the Department since there as no motivation for his employment and as such the Department did not approve of his employment. Based on this response the motivation was written that the Applicant be placed in the said school. It emerged that the school (PFS) was dwindling in terms of the number of the learner intake. As a consequence the Applicant was paced at the Ntswanatsasi Primary School (NPS). This placement took place in the last quarter of 1996. It is the understanding of the Applicant that the placement at NPS was a transfer informed by the circumstances at PFS. In the course of his duties at NPS, the Applicant indicated that the SGB recommended his permanent post in the school. However, such recommendation was declined by the Department because it was established that the Applicant was on list B and not list A. As a result the SGB was informed that they had to exhaust the people in list A prior to considering the people in list B.
2.2 It was intimated by the Applicant that he was taken out of the system as per Resolution 6 of 1998. In the context of this Resolution the Applicant indicated that he has been denied the opportunity to be appointed to a substantive post since he was used as a substitute teacher. This it was said meant that the Applicant had to be considered on individual basis as per Resolution 6 (13.2). The Applicant argues that his case was not considered on its merits. It is further the contention of the Applicant that the was not out of the employ for a period exceeding three months. The Applicant further informed the arbitration that the actions of the Department are against the tenets of Schedule 8 of the Labour Relations Act in so far as it refers to consistency. This point was made to clarify that the educators who were not in the service of the Department before 1 July 1996 and came after but have been confirmed permanent.
2.3 Maria Phumo (MP) was one of the witnesses to be called. She indicated to the arbitration that the school (NPS) had three posts advertised in 1999. She also indicated that she is the member of the SGB. During cross-examination she indicated that she new about the procedure for rationalization and redeployment. She did mention that as the SGB they were informed that the Applicant cannot be considered since he is not in list A. However, they considered the Applicant’s case as a special one together with a certain Baas. Asked of the reasons for making these cases special ones, she referred to submissiveness to authority to have the Applicant’s case to be looked at differently. An affidavit was submitted to the arbitration to confirm that the principal was indeed mandated by the SGB about this matter. The arbitration was told by this witness that the mandate was derived out of a formal meeting.
2.4 The principal of the school (NPS) who came as one of the witnesses for the Applicant informed the arbitration the Applicant was brought to his school as a temporary teacher by a certain Mr Mabitle. He was further told to keep him until a suitable place was found for the Applicant. As a principal he did not have any problem with the arrangement since it was not the first of its kind. He conceded to having been mandated to write to the Department. Asked why it was him to write to the Department and no the secretary, his response was that the secretary was engaged with other matters. The witness further conceded that the reasons in the letter are not part of the requirements of the rationalization and redeployment. He further mentioned that indeed the Applicant was not on list A and further that at the time of writing to the Department the Applicant was no longer in his establishment (NPS). The last day of the Applicant the arbitration was told was 31 March 1999. The letter was a plea and that the mandate was given verbally by the chairperson and his deputy and was never discussed in a meeting. He was asked to “see if nothing van be done for the Applicant”. He reported that he had had no response to his letter. Asked about the affidavit submitted, he said that there was no meeting on 25 October 2000 that came with an affidavit. He therefore doubts the authenticity of such.
2.5 The Applicant argued that the was supposed to be confirmed permanent by virtue of his status. Resolution 6 of 1998 was enacted while the Applicant was still in the employ of the Department. In the process of re-classification, the Applicant was not correctly classified. He was to be classified in list A and not list B.
3 .
THE DEPARTMENT’S CASE
3.1 The Department admitted that the Applicant was employed as a substitute teacher from 1 June 1995 to 31 December 1995. The employment was a fixed contract term and it expired. On the basis of this the employer argues that at no stage was the Applicant dismissed. It is also mentioned by the Department that the Applicant was not in the employ between 1 January 1996 and 31 March 1996. The Department argued that the Applicant was re-appointed at NPS and not transferred. Resolution 6 of 1998 does not affect the Applicant since it was signed in December 1998 when his term expired in June 1998.
3.2 On the issue of appointment, the Department indicated that the SGB should recommend but that the appointment rests with the Head of Department (HOD). There can be no exception to the requirements as stipulated in the rationalization and redeployment processes. The Department argues that the SGB did not follow the procedure in dealing with the matter. The renewal of the contract was based on agreed terms. Such did not happen in the course as indicated by the Applicant.
4 .
DISCUSSION OF THE CASE
4.1 The contradiction of the witnesses in respect to the affidavit submitted merits attention. It is clear that the said document was written after the arbitration had started. I want to accept the version of the principal that its authenticity is in question. This is further accepted and supported by the fact that MP indicated that they were asked to write the affidavit for the purpose of the arbitration. I therefore shall reject the information contained in the affidavit.
4.2 There are thousands of teachers that are not in the system. There also are guidelines for dealing with intake of teachers. Indeed there are special cases that have to be dealt on their merits. However, such also have their own guidelines. If a person is out of your employ as indicated by the principal, there should be reason enough to want to have them back. Such reasons should be in the context of the regulations and procedures laid down. It is clear to me that the letter that was written to the Department was written more out of pity than the fundamentals of the educational requirements and procedures laid down for such processes. The letter of plea thus gets rejected.
4.3 The SGB has an understanding of the rationalization and redeployment processes but for some unclear reasons decided to deal with this mater in parallel to such. Nothing was presented to this arbitration that would clarify such a departure form policy. It is my contention that there is no reason outside of pity for the Applicant. It must be mentioned that there is no system that will be effective if its decisions are based on pity and not considering policies that are in place.
4.4 It is very clear that the Applicant was appointed on a fixed contract term. Neither the Applicant nor the Department is in dispute over this aspect of the case. The fact that the contract term expired is beyond reproach. It is important to reflect on the assertion by the Applicant that he was denied the opportunity to be appointed to a substantive post. It must be remembered that the Applicant was only used at Rooipoortjie as a substitute teacher. On the issue of PFS clearly the Applicant was appointed on a temporary basis and not used as a substitute teacher. There is no evidence that supports the assertion that he was not afforded an opportunity to be appointed to a substantive post since he was used as a substitute teacher.
4.5 The South African Schools Act (84 of 1996) is very clear on the role of the SGB in the process of filling of posts. It stipulates in section 1 (i) that the governing body must :
“Recommend to the Head of Department the appointment of educators at the school ...
4.6 At no stage does it say that the Act say that the SGB does the appointment. On the other hand Resolution 5 of 1998 stipulates some of the criteria that has to be followed in filling the posts. None of those criteria refers to what the principal wrote in his letter of plea. I want to state that the SGB dealt with the matter in disregard to policy.
4.7 The issue of re-classification merits attention. Both the Department and the principal were clear in their assertion that when the process of re-classification took place the Applicant was no longer in the employ of the Department. It therefore becomes wrong and inappropriate to argue the classification of somebody that is not in your employ. The fact of re-classification becomes irrelevant to this case.
5 .
DETERMINATION
The Applicant was not dismissed but his term of contract expired and accordingly therefore re-instatement is denied.
_______________________
ARBITRATOR
HANS THABO NGOBENI
Date : 16 March 2001
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 11/99 0774 FS
APPLICANT SADTU obo I R MOLOKE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE RE-INSTATEMENT OF APPLICANT
ARBITRATOR HANS THABO NGOBENI
DATE OF ARBITRATION 10, 30 OCT, 23 NOV ‘99, 27 FEB 01
VENUE KROONSTAD
REPRESENTATION:
APPLICANT SADTU through Mr M Y DUMA
RESPONDENT MR T B I TLERU
AWARD:
The Applicant was not dismissed but his term of contract expired and accordingly therefore re-instatement is denied.
DATE OF AWARD 16 MARCH 2001
Province: Free State
Applicant: SADTU obo I R MOLOKE
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Venue: KROONSTAD
Award Date: 16 March 2001
Arbitrator: HANS THABO NGOBENI
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 11/99 0774 FS
In the arbitration between:
SADTU obo I R MOLOKE APPLICANT
and
FREE STATE DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATION AWARD
1 .
INTRODUCTION
1.1 The arbitration was heard on 10 October 1999, 30 October 1999 and 27 February 2001 at the Kroonstad District office. The department was represented by Mr T B I Tleru and the Applicant was represented by SADTU through Mr M Y Duma. The matter that was brought for arbitration was defined as the re-instatement of the Applicant. In this context the arbitration was to decide on the procedural and substantive fairness or otherwise of the matter before myself.
1.2 At the start of the arbitration the two parties submitted that they will lead and submit documentation proof only. However, it emerged that there is a need for oral evidence. It is for this reason that both the documentary and oral evidence was led in this arbitration.
2 .
THE APPLICANT’S CASE
2.1 In his submission the Applicant indicated he was employed as a substitute teacher on a fixed contract from June 1995 to December 1995. Such employment was placed at the Rooipoortjie School. It was also indicated by the Applicant that he was also employed at the Pickery Farm School (PFS) from 1 January 1996 to 31 March 1996. This employment was of a temporary nature. An assumption of duty form was submitted to this arbitration. It indicates that the previous school was Wembley. It was signed by the manager and the circuit inspector. In the process the Applicant did not receive his salary and complained to the Department. The response the Department gave was that the Applicant was not in the employ of the Department since there as no motivation for his employment and as such the Department did not approve of his employment. Based on this response the motivation was written that the Applicant be placed in the said school. It emerged that the school (PFS) was dwindling in terms of the number of the learner intake. As a consequence the Applicant was paced at the Ntswanatsasi Primary School (NPS). This placement took place in the last quarter of 1996. It is the understanding of the Applicant that the placement at NPS was a transfer informed by the circumstances at PFS. In the course of his duties at NPS, the Applicant indicated that the SGB recommended his permanent post in the school. However, such recommendation was declined by the Department because it was established that the Applicant was on list B and not list A. As a result the SGB was informed that they had to exhaust the people in list A prior to considering the people in list B.
2.2 It was intimated by the Applicant that he was taken out of the system as per Resolution 6 of 1998. In the context of this Resolution the Applicant indicated that he has been denied the opportunity to be appointed to a substantive post since he was used as a substitute teacher. This it was said meant that the Applicant had to be considered on individual basis as per Resolution 6 (13.2). The Applicant argues that his case was not considered on its merits. It is further the contention of the Applicant that the was not out of the employ for a period exceeding three months. The Applicant further informed the arbitration that the actions of the Department are against the tenets of Schedule 8 of the Labour Relations Act in so far as it refers to consistency. This point was made to clarify that the educators who were not in the service of the Department before 1 July 1996 and came after but have been confirmed permanent.
2.3 Maria Phumo (MP) was one of the witnesses to be called. She indicated to the arbitration that the school (NPS) had three posts advertised in 1999. She also indicated that she is the member of the SGB. During cross-examination she indicated that she new about the procedure for rationalization and redeployment. She did mention that as the SGB they were informed that the Applicant cannot be considered since he is not in list A. However, they considered the Applicant’s case as a special one together with a certain Baas. Asked of the reasons for making these cases special ones, she referred to submissiveness to authority to have the Applicant’s case to be looked at differently. An affidavit was submitted to the arbitration to confirm that the principal was indeed mandated by the SGB about this matter. The arbitration was told by this witness that the mandate was derived out of a formal meeting.
2.4 The principal of the school (NPS) who came as one of the witnesses for the Applicant informed the arbitration the Applicant was brought to his school as a temporary teacher by a certain Mr Mabitle. He was further told to keep him until a suitable place was found for the Applicant. As a principal he did not have any problem with the arrangement since it was not the first of its kind. He conceded to having been mandated to write to the Department. Asked why it was him to write to the Department and no the secretary, his response was that the secretary was engaged with other matters. The witness further conceded that the reasons in the letter are not part of the requirements of the rationalization and redeployment. He further mentioned that indeed the Applicant was not on list A and further that at the time of writing to the Department the Applicant was no longer in his establishment (NPS). The last day of the Applicant the arbitration was told was 31 March 1999. The letter was a plea and that the mandate was given verbally by the chairperson and his deputy and was never discussed in a meeting. He was asked to “see if nothing van be done for the Applicant”. He reported that he had had no response to his letter. Asked about the affidavit submitted, he said that there was no meeting on 25 October 2000 that came with an affidavit. He therefore doubts the authenticity of such.
2.5 The Applicant argued that the was supposed to be confirmed permanent by virtue of his status. Resolution 6 of 1998 was enacted while the Applicant was still in the employ of the Department. In the process of re-classification, the Applicant was not correctly classified. He was to be classified in list A and not list B.
3 .
THE DEPARTMENT’S CASE
3.1 The Department admitted that the Applicant was employed as a substitute teacher from 1 June 1995 to 31 December 1995. The employment was a fixed contract term and it expired. On the basis of this the employer argues that at no stage was the Applicant dismissed. It is also mentioned by the Department that the Applicant was not in the employ between 1 January 1996 and 31 March 1996. The Department argued that the Applicant was re-appointed at NPS and not transferred. Resolution 6 of 1998 does not affect the Applicant since it was signed in December 1998 when his term expired in June 1998.
3.2 On the issue of appointment, the Department indicated that the SGB should recommend but that the appointment rests with the Head of Department (HOD). There can be no exception to the requirements as stipulated in the rationalization and redeployment processes. The Department argues that the SGB did not follow the procedure in dealing with the matter. The renewal of the contract was based on agreed terms. Such did not happen in the course as indicated by the Applicant.
4 .
DISCUSSION OF THE CASE
4.1 The contradiction of the witnesses in respect to the affidavit submitted merits attention. It is clear that the said document was written after the arbitration had started. I want to accept the version of the principal that its authenticity is in question. This is further accepted and supported by the fact that MP indicated that they were asked to write the affidavit for the purpose of the arbitration. I therefore shall reject the information contained in the affidavit.
4.2 There are thousands of teachers that are not in the system. There also are guidelines for dealing with intake of teachers. Indeed there are special cases that have to be dealt on their merits. However, such also have their own guidelines. If a person is out of your employ as indicated by the principal, there should be reason enough to want to have them back. Such reasons should be in the context of the regulations and procedures laid down. It is clear to me that the letter that was written to the Department was written more out of pity than the fundamentals of the educational requirements and procedures laid down for such processes. The letter of plea thus gets rejected.
4.3 The SGB has an understanding of the rationalization and redeployment processes but for some unclear reasons decided to deal with this mater in parallel to such. Nothing was presented to this arbitration that would clarify such a departure form policy. It is my contention that there is no reason outside of pity for the Applicant. It must be mentioned that there is no system that will be effective if its decisions are based on pity and not considering policies that are in place.
4.4 It is very clear that the Applicant was appointed on a fixed contract term. Neither the Applicant nor the Department is in dispute over this aspect of the case. The fact that the contract term expired is beyond reproach. It is important to reflect on the assertion by the Applicant that he was denied the opportunity to be appointed to a substantive post. It must be remembered that the Applicant was only used at Rooipoortjie as a substitute teacher. On the issue of PFS clearly the Applicant was appointed on a temporary basis and not used as a substitute teacher. There is no evidence that supports the assertion that he was not afforded an opportunity to be appointed to a substantive post since he was used as a substitute teacher.
4.5 The South African Schools Act (84 of 1996) is very clear on the role of the SGB in the process of filling of posts. It stipulates in section 1 (i) that the governing body must :
“Recommend to the Head of Department the appointment of educators at the school ...
4.6 At no stage does it say that the Act say that the SGB does the appointment. On the other hand Resolution 5 of 1998 stipulates some of the criteria that has to be followed in filling the posts. None of those criteria refers to what the principal wrote in his letter of plea. I want to state that the SGB dealt with the matter in disregard to policy.
4.7 The issue of re-classification merits attention. Both the Department and the principal were clear in their assertion that when the process of re-classification took place the Applicant was no longer in the employ of the Department. It therefore becomes wrong and inappropriate to argue the classification of somebody that is not in your employ. The fact of re-classification becomes irrelevant to this case.
5 .
DETERMINATION
The Applicant was not dismissed but his term of contract expired and accordingly therefore re-instatement is denied.
_______________________
ARBITRATOR
HANS THABO NGOBENI
Date : 16 March 2001
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 11/99 0774 FS
APPLICANT SADTU obo I R MOLOKE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE RE-INSTATEMENT OF APPLICANT
ARBITRATOR HANS THABO NGOBENI
DATE OF ARBITRATION 10, 30 OCT, 23 NOV ‘99, 27 FEB 01
VENUE KROONSTAD
REPRESENTATION:
APPLICANT SADTU through Mr M Y DUMA
RESPONDENT MR T B I TLERU
AWARD:
The Applicant was not dismissed but his term of contract expired and accordingly therefore re-instatement is denied.
DATE OF AWARD 16 MARCH 2001