Case Number: PSES 05/2000/583 KZN
Applicant: S A ARRIKUM
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 21 June 2001
Arbitrator: BENITA WHITCHER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 05/2000/583 KZN
In the arbitration between:
S A ARRIKUM APPLICANT
DEPARTMENT OF EDUCATION RESPONDENT
1 . HEARING AND REPRESENTATION
1.1 The arbitration was conducted on 24 April and 23 May 2001 at the premises of the Department of Education, Pietermaritzburg. The Applicant, Mr S A Arrikum, was represented by Ms M Kennard, an attorney from Austen Smith. The Department of Education was represented by a Departmental employee, Mr Sunil Maheer: Chief Education Specialist.
2 . ISSUES TO BE DECIDED
Whether the Applicant was demoted unprocedurally and/or whether the cancellation of his promotion to Deputy Principal was procedurally fair.
3 . EVIDENCE AND ARGUMENT
3.1 The Applicant has been in the employ of the Department for 34 years as an educator. In 1999 he applied for a number of school-based promotion posts, including that of Deputy-Principal of Bisley Park Primary School (Post 581). On 21 December 1999 he received a formal appointment letter from the Department, appointing him to the post effective from 01 January 2001. He assumed duty on 17 January 2001 when the schools opened.
3.2 On 20 March 2000 he received a letter from the Department. The letter stated that
“Scrutiny of documents revealed that (your) promotion was effected incorrectly as another applicant has a lawful claim to the post. In the circumstances your promotion is cancelled and you are required to revert to your old post with effect from 1 April 2000. The inconvenience caused is regretted”.
3.3 No discussions or further explanations were offered to the Applicant by the Department.
4 The Applicant declared a dispute and in the process the following transpired and is common cause:
4.1 The Applicant had indeed been incorrectly appointed. Due to a data capturing error in the computers of the Department, the formally selected candidate of the School Governing Body was not appointed. Instead, the Department sent the letter of appointment to the Applicant, the SGB’s third choice.
4.2 When it became aware of the error, the SGB lodged a complaint and dispute with the Promotions Committee on 21 January 1999. On 08 March 2000 the Committee declared that the Applicant had been incorrectly appointed and that the person entitled to the post, a Mrs Hale, be appointed.
4.3 Although the Department knew from 21 January 2000 that the post was being disputed and that it had made an error, it failed to warn or notify the Applicant of the problem or the possibility that he may have to vacate his post. The applicant contended that if he had been informed on 21 January 2000, his inconvenience may have been lessened. He would not have made certain changes and adjustments to his life and settled down. Instead he was left in the dark for the whole term.
4.4 He has not assumed duty as yet in his old post, namely that of HOD - Level 2 at Howick West Primary. He testified that he is on sick leave owing to this traumatic event and because he does not have a good relationship with his former Principal.
.5 The Department has made similar mistakes in the past and has no formal procedures to deal with this problem. In all cases the hapless incumbents were, as in the case of the Applicant, curtly instructed to revert to their previous posts.
4.6 It is common cause that the Applicant suffered financial inconvenience from 01 April 2000 and a great deal of stress and humiliation for which he received psychological treatment.
4.7 In his former post, the Applicant was a HOD-Level 2 and received an annual salary of R113 369.00. The promotion post from which he was removed was Level 3 with an annual salary of R115 092.
4.5 I accept that the cancellation of the appointment amounted to a demotion because the Applicant was formally appointed and he assumed duty for some time.
4.6 The Applicant contended that his removal constituted an unfair demotion in that it was unprocedural and conducted in an unfair and insensitive manner. If I find in his favour, he requests that I grant him a protective promotion, VSP or retrospective reinstatement into a position with the same salary and level.
4.7 The Department contended that it has not acted unfairly because it has no procedures in place to deal with this situation and that the Applicant has not been treated in an unusual or exceptional way. The Applicant knows this has happened before and can happen. The Department referred to clause 23 of the Procedure Manual for Promotions (Resolution 5 and 11). It reads as follows:
“Should it be found that the promotion was effected incorrectly, such position will be withdrawn”.
.1 This same clause was set out in the appointment letter of the Applicant.
5. ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 As set out in promotions manual, the Department has the power to withdraw a promotion incorrectly awarded. There is also no agreed upon procedure governing the exercise of this power. However, it is trite labour law that an employer cannot exercise its power in an unfair manner. The absence of a formal process is no excuse for exercising this power in an unfair manner. For a demotion or a change to an empolyee’s status (like the withdrawal of an appointment) to be deemed fair, it must be for a good reason and after a fair procedure.
5.2 Generally speaking, fair procedure means that the employer should timeously notify the employee an opportunity to make representations or suggestions on how to deal with the problem fairly and how to mitigate any adverse effects the demotion or removal may have on the employee. At the very least, this should have been done in this case. It is common cause that this was not done. Accordingly, the demotion and/or cancellation of the appointment of the Applicant was procedurally unfair and the Department thereby committed an unfair labour practice.
5.3 It is not for this forum to dictate the specifics of the procedure that should be used in cases like this because most of the terms and conditions of employment, including issues like promotions, transfers, redeployment in the Education Department, are products of collective bargaining and formal resolutions. It is my recommendation that, since this problem does occur from time to time, the Department and the Unions draw up an agreed policy and procedure that will cater for this problem in the future.
6.1 I do not deem it reasonable to retrospectively reinstate the Applicant into a position with the same level and salary or to provide him with protective promotion, because this would be tantamount to saying that he was entitled to the promotion position in the first place. It is common cause that he was not entitled to the position in the first place.
6.2 I also cannot accept that he cannot go back to his former post because he does not have a good relationship with the Principal. If he had not been incorrectly appointed, he would still be in the same school.
6.3 He did not lead any evidence that he had been offered a promotion elsewhere and had turned it down to take up the Bisley one. Nor did he lead evidence that the bad relationship is as a result of the Department’s action in this case. Neither can I grant him the VSP because it is a benefit that has specific purposes and procedures.
6.4 The only reasonable alternative is to grant him compensation for the unprocedural fairness. I believe that a fair amount of compensation should be four months' salary, calculated according to his salary a HOD-level 2.
7.1 The removal and/or demotion of the Applicant from the position of Deputy-Principal at Bisley to his former position was procedurally unfair.
7.2 The Department of Education is directed to pay to the Applicant compensation equivalent to four months' salary, calculated according to his salary as HOD-Level 2. This amount must be paid to him within 21 days of the date of this awards.
21 JUNE 2001
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 05/2000/583 KZN
APPLICANT S A ARRIKUM
RESPONDENT DEPARTMENT OF EDUCATION
NATURE PROCEDURAL UNFAIRNESS
ARBITRATOR B WHITCHER
DATE OF ARBITRATION 24 APRIL & 23 MAY 2001
APPLICANT MS M KENNARD
RESPONDENT MR SUNIL MAHEER
1. The removal and/or demotion of the Applicant from the position of Deputy-Principal at Bisley to his former position was procedurally unfair.
2. The Department of Education is directed to pay to the Applicant compensation equivalent to 4 months salary, calculated according to his salary as HOD-Level 2. This amount must be paid to him within 21 days of the date of this awards.
DATE OF AWARD 21 JUNE 2001