Case Number: PSES 289 KZN
Respondent: DEPARTMENT OF EDUCATION, Gauteng
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 29 May 2001
Arbitrator: R NAIDOO
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: PSES 289 KZN
In the matter between:
MS Y GUPTHAR (APPLICANT)
DEPARTMENT OF EDUCATION (RESPONDENT)
REPRESENTATION AND VENUE:
1. The arbitration took place at Regional Office, Empangeni on 23 May 2001.
1.2 Dr Maboea represented the Department. The Applicant represented herself.
1.3 The arbitration concerned the termination of the Applicant’s service.
TERMS OF REFERENCE:
2.1 The issue came before me in terms of the Education Labour Relations Council Constitution whereby certain disputes were referred to a process of Arbitration.
2.2 The issues to be determined are whether the grievant qualifies for protected educator status, whether the appointment of the Applicant’s replacement was fair and the non receipt of the UIF card.
2.3 I am given the power to determine the procedure to be followed at the arbitration and to make an appropriate award.
THE DEPARTMENT’S SUBMISSION:
The Department contended that the Applicant was prior to 1 July 1996 employed by the Department but that she held substitute posts (non substantive). The Department contended that for these reasons protected status could not be granted to her. The Department contended that the replacement of the Applicant was fair and procedurally correct.
THE APPLICANT’S SUBMISSION:
The Applicant contended that prior to 1 July 1996 the Department employed her. She contended that she meets the requirements and is still entitled to protected educator status. The Applicant requested that she be granted protected educator status. Further the Applicant contended that the filling of her post by a replacement teacher was improper. Further the Applicant queried the non-receipt of her UIF card.
NON DISPUTED ISSUES:
The parties agreed that:
5.1 The documents tendered are admissible as evidence;
5.2 The cut-off date for protected status is 1 July 1996;
5.3 The period prior to 1 July 1996 is the subject of this arbitration.
6.1 Whether the Applicant is entitled to protected status?
6.2 Whether the Applicant was unfairly replaced?
6.3 Receipt of the UIF card?
ASSESSMENT OF EVIDENCE AND ARGUMENT:
7.1 Whether the Applicant is entitled to protected status?
Clause 3.8 of the Annexure to Resolution 6 provides for 2 categories of protected educators viz
7.1.1 educator who meets the minimum requirements (M+3);
7.1.2 appointed in a substantive post;
7.1.3 prior to 1 July 1996.
7.1.4 educator who does not meet the minimum requirements (M + 3);
7.1.5 longer than 10 years service;
7.1.6 no break in service in excess of 120 days;
7.1.7 teaching at a previously disadvantaged institution.
It is accepted that the Applicant does not qualify under the second category. This second category is regarded as temporary protected status. In order to be granted protected status as a permanent employee under the first category, the Applicant has to fulfill the requirements mentioned in 1.1 and 1.2 and 1.3. These 3 requirements are peremptory and all 3 have to be met.
7.2 Whether the Applicant was employed prior to 1 July 1996?
It is clear that the wording of clause 3.8 of the Annexure to Resolution 6 stipulates that the educator must be in employment prior to the cut-off date of i July 1996. No minimum period of employment prior to this date is stipulated. Accordingly even if the educator was employed 1 day prior to the cut off date, he/she would qualify. From the evidence of the Applicant it is clear that she was employed by the Department prior to 1 July 1996. This is not disputed by the Department. Accordingly I find that the Applicant satisfied this requirement.
7.3 Whether the Applicant meets the minimum requirements:
Both parties agreed that the Applicant possessed qualifications in excess of M + 3 prior to 1 July 1996. Accordingly I find that the Applicant satisfied this requirements.
7.4 Whether the Applicant held any substantive posts:
The Applicant testified that she did not hold any substantive posts prior to 1 July 1996. The Department contended that prior to 1 July 1996. The Department contended that prior to 1 July 1996 the Applicant never held any substantive posts. The Department conceded that she held substitute posts.
A substitute post is defined in clause 3.6.1 of the annexure to Resolution 6 as “an educator employed temporary in the place of another educator who is occupying the relevant post but is absent from his duties with approval”.
A substantive post is defined in clause 3.8 of the annexure to Resolution 6 as “an approved educator post on an approved staff establishment”.
A substitute educator would be a person filling a post because the educator is on leave e.g. maternity leave. Where the post is a permanent post at the school and is vacant as a result of death or retirement of a designated educator who held the post, the post is regarded as a substantive post. Clearly Resolution 6 excludes and does not treat substantive educators in the same way as educators occupying substantive post. Accordingly I find that the Applicant did not hold any substantive post prior 1 July 1996 and does not fulfill this requirement.
7.5 Whether the Applicant was unfairly replaced:
The Applicant contended that the teacher who replaced her lacked the necessary qualification and experience. She contended that this was improper and unfair.
The Department contended that the Applicant was replaced in terms of the re-structure and redeployment “R & R” process. The replacement was according to strict guidelines and was fair.
HRM Circular 52 of 1998 provides:
“3.1 That there is a clear understanding and acknowledgement of the fact that the new contract does not raise any specific expectation or confer any specific right or any temporary educator employed on or after 1 July 1996.
3.2 That the new contract would only be up to 31 Mach 1999 or until such time an excess educator is re-deployed into the said post, whichever is the earlier.
3.3 Where a temporary educator is required to vacate the post earlier than 31 March 1999 due to the re-deployment of an excess educator s/he will be given thirty (30) days notice prior to the termination of such contract.
I conclude that the above circular clearly states that re-deployment teachers would replace temporary educators. This forum is not the appropriate forum to challenge the national policy decision to re-deploy permanent educators to replace temporary educators. It is agreed that the replacement teacher was a permanent educator and was appointed to replace the Applicant in terms of the R & R process. The fact that he lacks the necessary qualifications or experience to teach the subjects taught by the Applicant does not guarantee the Applicant a right to the post. The Applicant has no claim to the post. The fact that he legitimately occupies the post in terms of the R & R circulars dismisses the Applicant’s contentions.
Accordingly I find that the Applicant has been properly and fairly replaced in terms of the current regulations. This issue is dismissed.
7.6 Receipt of the UIF card:
By agreement the parties, Dr Maboea will follow up with the pension section and expedite the UIF payment due to the Applicant.
8.1 I find that the Applicant has fulfilled 2 of the 3 requirements necessary to accord her protected status. All 3 requirement have to be fulfilled to enjoy the protected status. Accordingly the Applicant’s application for protected status cannot be upheld.
8.2 Further I find that the Applicant was properly and fairly replaced in terms of the R & R regulations. Accordingly the dispute is dismissed.
8.1 It is found that the Applicant has fulfilled 2 of the 3 requirements necessary to accord her protected status. All 3 requirement have to be fulfilled to enjoy the protected status. Accordingly the Applicant’s application for protected status cannot be upheld.
8.2 Further it is found that the Applicant was properly and fairly replaced in terms of the R & R regulations. Accordingly the dispute is dismissed.
DATE OF AWARD 29 MAY 2001