Case Number: PSES 152 KZN
Applicant: G BHAGWADEEN
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 5 May 2001
Arbitrator: B WITCHER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 152 KZN
In the arbitration between:
G BHAGWADEEN APPLICANT
THE DEPARTMENT OF EDUCATION RESPONDENT
1 . DETAILS OF THE HEARING
.1 In November 1999 the promotion and appointment process for posts 7328 and 7329 at Golden Steps Training Centre was conducted by a Selection Committee appointed by the Board of Management of the school. The school did not have a governing body at that stage.
.2 Although G Bhagwadeen is cited as the Applicant, the Union indicated that it was the real Applicant and had only cited G Bhagwadeen for administrative purposes to identify the dispute.
.3 The Union Applicant declared a dispute to challenge the legitimacy and legality of the Board of Management and, as a consequence thereof, the appointments. The Union could not state whether it had a direct problem with the resultant appointments. It submitted that the appointments were technically illegitimate because of the unlawfulness of the board. It requested that if I find in their favour, I should set aside the appointments and direct that the appointments be processed by a Governing Body appointed in terms of the South African Schools Act 84 of 1996.
2 . FINDING
.1 It is my finding that the Union has not made out a case and the application is dismissed. I set out the reasons for my decision hereunder.
The Respondent clearly established that the Union withdrew the dispute on 10 April 2000 and confirmed the withdrawal on 13 April and 09 May 2000. The department handed up a document headed “Bilateral Agreement between SADTU and the Department of Education” and it reads as follows:
“In respect of posts 7328/9 of Golden Steps School. After a discussion between SADTU, represented by Mlungisi Ntombela, and the Department, represented by E V Nzama and I V Ngidi, it was agreed that the disputes declared by SADTU around Posts Nos 7328 and 7329 be withdrawn”.
The document was signed by the representatives and two witnesses on 10 April 2000. The agreement is also recorded in the minutes of the DRC signed by both parties, namely SADTU and the department on 9 May 2002.
The Union contended that the agreement is not valid because the DRC was disbanded thereafter and therefore all resolutions taken in that body are not valid. Further, the Union only agreed to withdraw the dispute because of the interdict launched by the school when the DAC took a resolution that the processes are redone. I do not see any substance to this argument. The Union did not lead any evidence or refer to any resolutions, laws or documents which prove that all proceedings during the tenure of the DAC are deemed invalid. I doubt such a ludicrous situation would be lawful. In any event, that argument does not help because, as the Department pointed out, the agreement was concluded outside of the DAC and was merely noted by it in its minutes. The argument that the Union only withdrew the dispute because of the interdict, does not detract from the fact that it withdrew the dispute. There is nothing in the agreement which states that the agreement is merely a ruse and that the Union intended to pursue it in the ELEC. Neither was any evidence led that the department was aware of this unrecorded intention at the time of the agreement. A written agreement, is a written agreement, and the terms thereof can only be gleaned form its contents. Further, it would make nonsense of labour relations, certainty, order and good faith, bargaining if it was open to one party to an agreement, to ignore the agreement.
In light of my findings, it is unnecessary for me to deal with the substance of the dispute. However, the Department did correctly point out Section 54 of the South African Schools Act and Government Gazette No. 252 of 1999 which clearly gave the Board legal legitimacy until January 2000. The Union contended that the Board did not have political legitimacy. That may be so, but I am required to determine the legal legitimacy of the Board. Further it was the new and democratically elected government itself that accepted and extended that legal grace to the Board until January 2000. Therefore, when the appointments in question took place, the Board may have been politically incorrect, but it was legal. If the Union wanted the technical legal principles not be taken into account in its complaint against the Board, then it should have dealt with the matter as an organisational and political issue and not launched a challenge in a forum that must take into consideration technical laws as well.
The application is dismissed.
5 MAY 2001
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 152 KZN
APPLICANT G BHAGWADEEN
RESPONDENT DEPARTMENT OF EDUCATION
ARBITRATOR B WITCHER
DATE OF ARBITRATION 10 APRIL 2000
APPLICANT MR M NTOMBOZA (SADTU)
RESPONDENT E V NZANA AND I V NGIDI
The application is dismissed
DATE OF AWARD 5 MAY 2001