Case Number: PSES 05/2000 0582 KZN
Applicant: S HIRMANECK
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 2 May 2001
Arbitrator: S R BALTON
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 05/2000 0582 KZN
In the arbitration between:
S HIRMANEC APPLICANT
DEPARTMENT OF EDUCATION AND
CULTURE (SOUTH DURBAN REGION) RESPONDENT
APPLICANT’S REPRESENTATIVE : Mr A Pierce
TELEPHONE : (031) 563 1966
FAX : (031) 563 1611
RESPONDENT’S REPRESENTATIVE: Mr R C Sibisi
TELEPHONE : (031) 327 0540
FAX : (031) 327 0285
1 . DETAILS OF HEARING AND REPRESENTATION
The arbitration proceeded on 18 April 2001 at the Durban College of Education. The Applicant was represented by Mr A Pierce from APEK and the Respondent by Mr R C Sibisi, the Superintendent of Education and Management, Labour.
2 . ISSUE TO BE DECIDED
The issue to be decided is whether the Respondent committed an unfair labour practice in not awarding Post No 4935, that is, the post of Head of Department Business, Commerce and Management Studies to the Applicant.
3 . BACKGROUND TO THE ISSUE
3.1 The above matter was certified as unresolved at a conciliation hearing on 27 March 2001.
3.2 It is common cause or not in dispute that :
3.3 The Applicant is employed as a Level 1 Educator at Southlands Secondary School.
3.4 The Applicant applied for post 4935, that is, Head of Department Business, Commerce and Management Studies during 1999.
3.5 The Applicant together with six other candidates were short-listed for the post.
3.6 The interviewing panel awarded the highest score of 35 of 49 to one S Chetty who did not accept the post due to the same post being awarded to her at the school where she was teaching.
3.7 Mr N Singh who obtained the second highest score of 33 was awarded the post.
3.8 The Applicant obtained the fourth highest score of 29.
3.9 The relevant procedures of the Procedure Manual for processing school based promotions, (pages 3 - 22 of Exhibit A) reads as follows :
6.3.1 One Departmental representative (who may be the school Principal as a observer and resource person);
6.3.2 The Principal of the school if he/she is not the departmental representative, Except in the case where he/she is an Applicant.
6.3.3 Three or five elected members of the Governing Body or co-opted members;
The following is the minimum requirement in respect of quorum for all meetings of the Interview Committee
6.7.1 At least two members in a committee of three Governing Body/co-opted members;
6.7.2 At least three members in a committee or five Governing Body/ co-opted members
13 Notification to Applicants
Applicants must be given five working days notice to attend the interviews. This period could be reduced if the Applicant is available at a shorter notice.
Telephonic notification should be confirmed in writing.
17 The following FIVE criteria will be Utilized for INTERVIEWS:
a Leadership: Administrative, Management and Related Experiences 7x2
b Organisational Ability and Experience 7x1
c Professional Development/Educational Experience and insight 7x2
d Leadership : Community Related 7x1
e Personality & Human Relations 7x1
4 . SURVEY OF EVIDENCE AND ARGUMENT
The version of the Applicant
4.1 The Applicant testified that she had acted in the post as Head of Department Business, Commerce and Management Studies from 1998 to January 2000. She did not share a good relationship with the Principal due to an incident during the Rationalisation and Redeployment process when the Principal placed an educator who was redundant in a post. The Applicant told the Principal that the learners should choose the educator. The principal was not happy with this.
4.2 She received notification of the interview at about 14h30 on 13 November 1999 for the interview on 14 November 1999. The Principal told her “make yourself available at that time”. She accordingly did not have time to prepare adequately. She attended the interview under “duress” due to the short notice. She however attended the interview because she had received notice to attend and was aware of the time frames within which the processes had to be completed. Her interview lasted for approximately 15 to 20 minutes.
4.3 In her opinion the Principal should not have been part of the panel due to the strained relationship. She further stated that there was no departmental representative present at the interview.
4.4 During cross-examination she confirmed that it was the duty of the Principal to allocate duties to the educators. She stated that because the Principal said that they should not have an accounting department that she did not like her (the Applicant).
4.5 She stated that in her view the Principal influenced the other members of the panel and that the scores were determined before the interviews. She agreed that the signature of the Union observer on page 1 of Exhibit B confirmed that the procedures were followed.
4.6 She stated during cross-examination that she needed at least two days to have prepared thoroughly for the interview. She added that she was nervous and under duress and in such a situation it is possible to say the wrong thing. She regarded the statement “make yourself available at that time” as being duress. She interpreted it to mean that she had to be present and when asked whether she could have said that she is not available she stated that the panel was only at that time. She did not ask for further time. She further stated that she thought that it was normal for them to give one days notice. She subsequently discovered that five days notice should have been given. It was further put to her that she filled in the forms without going through the circular and she stated that she did study the circular. She stated that she had no alternative but to accept the invitation.
4.7 She stated that the interview was short in that she did not have enough time to speak about everything that she had done in her 21 years of service. She regarded half an hour to an hour as appropriate. She stated that her response were immediate and the interviewing panel proceeded with the questions. She was asked whether she made use of the time at the end and she said yes, she thanked the panel.
4.8 She did not object the presence of the Principal at the interview and did not think that it was her right to do so. She agreed during cross-examination that she had a right to have objected to the presence of the Principal at the interview. She now objects to the presence of the Principal because they did not share a good relationship.
4.9 She stated that she was not aware whether the Principal was a party to the short-listing procedure and confirmed that she had read circulars 35 and 37 which dealt with the procedures.
4.10 Upon further questioning about her preparation for the interview she stated that she needed more time to go over the things she had done. She confirmed that everything was in her CV and that she only needed five or ten minutes to go over her CV. She did not need to go to a library or do further research.
The version of the Respondent
4.11 Mrs G Pillay, the Principal of Southlands Secondary School testified. She stated that the departmental representative Mr Sallot attended the interviews in the morning but not the interviews for this particular post. The panel who conducted the interview had previous experience with interviewing. They followed all the procedures and were thoroughly prepared.
4.12 Mr Sallot was unable to attend the interviews for Post No 4035 as he was busy with the promotions at all the various schools on the same day. In the afternoon the committee was satisfied they had a quorum and continued with the interviews. They were competent enough to handle the process. She stated that she shared a professional relationship with the Applicant and all members of her staff and it was a relationship of respect and dignity. She also stated that at no point was any grievance lodged against her and if there was, there is a forum in the staffroom where such matters could be raised.
4.13 She stated that the Redeployment and Rationalisation process did not significantly affected her school. She could not recall exchanging any words with the Applicant about this process.
4.14 She stated that more than a hundred applications were received for the post and could not recall exactly when the short-listing took place. She however recalled that the candidates were advised a day before the interview and all of them agreed to the time. None were advantaged or disadvantaged. If the Applicant had requested further time stating that she was not available it would have been considered by the panel. She stated that she would have been surprised if any of the candidates said that they were interviewed under duress.
4.15 The time allocated to each candidate was in accordance with the document and at the end they were given extra time to explain anything further. The panel was interested in getting the best person for the job. She added that in fact almost each of the candidates thanked the panel at the end. She was adamant that there was no bias in the procedure and the documents and the manuals were arduously adhered to.
4.16 During cross-examination she confirmed that the Applicant was acting in the post. She also stated that she shared a professional working relationship with the management. She did not recall any exchange of words with the Applicant and if any matter was brought forward it would have been discussed. There was no conflict pertaining to the work of the Applicant. She was part of the interviewing panel and played an active role and asked questions. She stated that short notice was given because the due date had to be met and none of the candidates objected to the times. Further, no candidate was disadvantaged because all the times were negotiated with them. She was asked whether she was approached by any candidate to ask when the interview would be held and she said she was unable to recall that.
It was argued on behalf of the Applicant that :
5.1 The time frame in terms of the procedure manual had not been followed.
5.2 Mrs Pillay did not answer questions properly, she evaded questions.
5.3 The length of service of the Applicant was not taken into account.
5.4 The meeting of time frames was more important than giving proper notice.
It was argued on behalf of the Respondent that :
6.1 Mr Sallot was not present at the meeting in the afternoon and this did not harm the process.
6.2 The period of notification was reasonable as everybody got the same notice and no one objected.
6.3 The Applicant failed to define what further preparation she needed.
6.4 The candidates who were interviewed had the same qualifications.
6.5 There was no tangible evidence by the Applicant to prove that the relationship with the Principal was soured.
6.6 The Principal’s evidence that it was normal professional relationship was unchallenged.
7. EVALUATION OF EVIDENCE AND ARGUMENT
The Applicant’s main contentions are that :
7.1 The time frame for notification to attend the interview was not adhered to and the meeting of time frames was more important than giving proper notice.
7.2 The Applicant’s length of service was not taken into account.
7.3 The Principal should not have been part of the interviewing panel due to the strained relationship she shared with the Applicant.
7.4 I will accordingly evaluate the evidence in light of the above contentions.
7.5 As regards the time frames the Applicant conceded during cross-examination that when she filled in her application form that she had studied the manual and circulars.
7.6 The procedure manual provides that five working days notice must be given to attend the interview. However the period could be reduced if the candidate is available at a shorter notice.
7.7 Mrs Pillay’s evidence that all the candidates received the notice at the same time and that none were prejudiced was not disputed. I am satisfied that the short notice was in terms of the manual and the Applicant did not object to same. In fact, she said that she was aware that certain time frames had to be met. The Applicant was not able to substantiate her claim that she attended the interview under “duress”.
7.8 The Applicant was further unable to show that she had been prejudiced by the short notice. She confirmed that all her important information was contained in her CV and that it would only take about 5 minutes to peruse same. She did not need to go to the library or do any research. She was not able to explain what she needed to do to be “adequately prepared’ for the interview. She confirmed that she was given extra time at the end of the interview. She could have used this time to elaborate further on her achievements if she wished to.
7.9 The evidence does not support the Applicant’s first contention.
7.10 The Applicant’s second contention that her length of service was not taken into account must be viewed in terms of the criteria enumerated in clause 17.6 of the Procedure Manual. It is unambiguously clear that length of service is not a criteria. The second contention accordingly fails.
7.11 The principal testified that when the Applicant did not report for work from 28 February 1997 he attempted to contact her by leaving messages with friends and relatives as he did not have a direct contact number or address as she had left her former address. She failed to contact him or to submit a doctor’s certificate or an application for leave. He next heard from her on 15 September 1997 when her husband phoned and asked for a meeting. When he met them on 19 September 1997 she indicated no intention to return to the school but asked him to assist her in obtaining a transfer to a school in Enseleni/Empangeni. She did not explain fully but cited family problems as the reason for wanting the transfer. The school in Empangeni had offered her a post but needed a letter of release or transfer letter. He advised her that he did not have the authority to do such but that he would speak to the SEM. He arranged to see them on 19 September 1997 to give his response but the husband phoned and cancelled the meeting. The Applicant’s pupils, numbering about 50, were divided amongst the remaining teachers who already had overloaded classes and this remained the situation throughout her absence of one year.
7.12 The Applicant’s excuse for being absent, but paid for a whole year until she was eventually dismissed was that she had been sick for the period 28 February 1997 to 31 May 1997, the schools were thereafter closed for the winter/June holidays and form July 1997 she had been waiting for the principal to revert to her regarding her request for a transfer or release letter. She contended that she had submitted to the principal, doctor’s certificates together with a formal application for sick leave the period 27 February 1997 to 31 May 1997. She handed up a copy of a document which she said was part of the leave form handed to the principal. It contains the doctor’s details, sick leave dates and a signature in the space designated for the signature of the principal. The principal denied the signature and knowledge of the documents. The circumstances of when and how the documents were handed to him were not put to him during cross-examination The Applicant also handed in a copy of a letter dated 21 August 1997 address to the school requesting a transfer. No evidence was led regarding the submission of this letter. She stated that she wanted a transfer and could not return to the school because of family violence. She never applied for leave during this period.
7.13 In my view the Applicant’s dismissal was lawful for the reasons set out below.
7.14 The Department’s case is that it never took a decision to dismiss the Applicant. At all relevant times there existed between the Department and the Applicant an employee-employer relationship within the definition of “employer” and “employee” contained in S213 of the LRA, as well as the definition of employee and educator contained in the Educator’s Employment Act, 1994. In consequence thereof the provisions of Section 10(1) (a) were at all relevant times applicable to the Applicant. Section 10 (1) (a) stipulates that:
“An educator employed in a permanent capacity at a public educational institution who is absent from work for a period exceeding 14 consecutive days without the consent of the employer shall, unless the employer directs otherwise, be deemed to have been discharged on account of misconduct with effect from the date following immediately upon the last day on which he/she was present to render services”.
7.15 Section 10 (2) stipulates that if the educator reports for duty at any time, the employer may, notwithstanding the discharge, reinstate him or her.
7.16 The Department correctly contended that upon a proper interpretation of S10 an officer/educator is at once deemed to have been discharged for misconduct as soon as he or she has absented herself or herself from his/her duties without permission for more than 7.17 consecutive days and that such discharge (or dismissal) does not depend on any decision on the part of the department. Under these circumstances an employee is dismissed by operation of law and not by the exercise of any discretion and this effectively results in an automatic dismissal which the Department is legally obliged to implement. The Department does not have a choice as to whether these provisions are to be implemented or not, and are in terms of their public responsibility obliged to implement those provisions (see Public Servants Association of SA & Another vs Premier of Gauteng & Others (1999) 20 ILJ 2106 (LCL)).
7.18 The one power which the Department does have is set out in S10 (2) in terms whereof a possible reinstatement of the Applicant can be considered when and if she/he resumes duty or reports for duty and applies for such.
7.19 In this case, although there was a dispute as to whether the Applicant was absent without permission during the period 28 February 1997 to 31 May 1997 and the June holidays in 1997, it was common cause that she was absent without permission in the remaining periods, namely about 8 months, a period far exceeding 14 days. There is therefore no need to make a finding regarding the disputed dates. Further the reason for the absence in my view is irrelevant because it is a deeming provision and the only enquiry is whether she had permission or not, which she did not have.
7.20 Further she did not report for work and/or invoke the possible reinstatement procedure provided in Section 10 (2), so any decision to reinstate or not has not yet been taken, so in my view there is no decision as envisaged by S10 to be adjudicated upon.
7.21 On a policy level I find the conduct of the Applicant to be disgraceful. She stays away from school for one year on full pay. She claims to have been unfit for work due to illness from 28 February ro 31 May 1997, a full 3 months. Yet the certificate is suspiciously vague, referring to an undefined illness like pelvic pain. She claimed that she also had a “running stomach, headaches and mental disturbance”. In my view common sense tells me that this cannot be serious enough to keep a person away continuously for 3 whole months - even if she did have these alleged ailments.
7.22 Even after her alleged sick period was over, she remained absent. Her excuse is the June holidays whose dates she did not prove and thereafter family violence and waiting for a transfer. The letter to the school asking for a transfer is dated 23 August 1997. I cannot understand how a person can, in the absence of permission to be absent, just sit around for months waiting for a response to a letter (or meeting that occurred in mid September 1997) without realising that one should account for one’s absence and that she was running the risk of dismissal. How can you presume to stay away for one year on full pay and not expect to be dismissed.
Date : 8 January 2001
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 05/2000 0582 KZN
APPLICANT S HIRMANECK
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPLICATION (FOR POST)
ARBITRATOR S R BALTON
DATE OF ARBITRATION 18 APRIL 2001
APPLICANT MR A PIERCE (APEK)
RESPONDENT MR R C SIBISI
DATE OF AWARD 2 MAY 2001