PSES NW
PSES NW
Award Date:
20 July 1999
Case Number: PSES NW
Province: Eastern Cape
Applicant: D BOSMAN
Respondent: DEPARTMENT OF EDUCATION NW
Issue: Unfair Dismissal - Constructive Dismissal
Venue: POTCHEFSTROOM
Award Date: 20 July 1999
Arbitrator: GE BARLOW
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES NW
In the arbitration between:
MR D BOSMAN APPLICANT
and
THE DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR’S AWARD
1 . INTRODUCTION
1.1 The parties were in agreement, there being no real dispute of fact, that it would be unnecessary to adduce oral evidence in respect of the essential disputes between the parties which may be defined as follows : The Grievant contends that in terms of the provisions of Regulation 15(4) of certain regulations promulgated under the Employment of Educators Act as published in the Government Gazette No. 16814 of 13 November 1995, an educator is vested with the right to retire at the age of 50 years. The Grievant contends that in terms of Regulation 59 a leave gratuity may inter alia be paid out to an educator in permanent capacity on his request where he has an option to retire and does not retire. It is the Grievant’s contention that this gratuity must be paid to the educator and that no discretion is vested in the Department in determining whether to pay such gratuity or not. To this extent the Grievant relies on the wording of Regulation 60(2) to the effect that “A leave gratuity up to a maximum of 184 days shall be payable to an educator referred to in Regulation 59(c) or 59(d).” The Department contends that in terms of the legislation, the departmental head is vested with a discretion to decide whether the gratuity that is applied for is to be paid or not. Accordingly and in terms of an agreement reached between the parties, this arbitration deals only with the question whether the departmental head has such a discretion to decide whether the gratuity applied for is to be paid out or not and this relates solely to the interpretation of the enabling regulations. The parties are in further agreement that should I decide that the departmental head is vested with the discretion, then such discretion falls to be exercised in a fair and proper manner and the issue as to whether the discretion was exercised in such a manner will be the subject of a further arbitration to be scheduled in that event. The arbitration may well involve the hearing of oral evidence.
1.2 Both parties submitted written arguments and I am indebted to them for their detailed submissions. It is not my intention to repeat the contents of those written submissions but rather to deal with an analysis of the legislation in question.
1.3 The Employment of Educators Act of 1998 came into effect on the 2nd of October 1998 replacing the Educators Employment Act of 1994. Section 10(3)(a) affords an educator the right to retire on or after attaining the age of 55 years. Section 35 of that Act enables the Minister to make regulations in regard to a wide ambit. Certain regulations regarding the terms and conditions of the employment of educators were promulgated in Government Notice No. R1743 of the Government Gazette No. 16814 of 13 November 1995 as amended by various further Government notices of 1 September 1997, 11 November 1997, 17 April 1998, 24 April 1998 and 9 December 1998.
1.4 The specific regulation which deals with leave gratuities is that contained in Regulation 59 which states the following:
“A leave gratuity, calculated as set out in Regulations 61 and 62 may be paid -.....
(b) to an educator serving in a permanent capacity at his or her written request, where such educator has the option of retiring on pension before attaining the compulsory retirement age and does not retire before attaining such age.”
1.5 In essence, the argument addressed on behalf of the department is that the word "may" used in Regulation 59 bestows a discretion on the relevant administrative official, i.e. that the word "may" clearly imports an alternative leaving the administrative official a discretion whether to grant the application or not. I was referred to certain authorities in this regard. The argument continues that the head of department has a discretion both in relation to Regulation 59(a) and (b).
1.6 The difficulty that I have with the argument addressed on behalf of the department is this. Nowhere in the enabling Act (the Employment of Educators Act No. 76 of 1998) nor in the Regulations themselves is there any reference to any administrative official, be it the head of department or any other person being vested with the power to exercise any discretion in regard to the leave gratuity. If the word “may” used in Regulation 59 was intended by the legislature to confer a discretion on an administrative official within the department, the immediate question which would then have to be asked is what is the identity of the administrative official who is vested with such authority. To this extent the case law that I was referred to deals with entirely different legislation in that in the legislation referred to in that case law, an administrative official is identified and the use of the word “may” related to a decision to be taken by that official has been interpreted as vesting the administrative official with a discretion. However, in the present Act and Regulations under consideration, there is no reference to an administrative official performing any function in regard to leave gratuity. In addition, I am of view that had it been the intention of the legislature to vest a discretion in an administrative official in regard to the leave gratuity, then not only would such administrative official have been identified but the grounds, bases or guidelines upon which he or she was to exercise that discretion one way or the other would have been identified for the purposes of clarity. The use of the word “may” in Regulation 59 identifies no more in my view, than the circumstances in which a leave gratuity will be paid out. I find support for my view in the fact that Regulation 62 entitled “Payment of leave gratuity” similarly merely anticipates the application for payment of a leave gratuity without any reference to an administrative decision. In addition, the use of the word "shall" in Regulation 60(1) is used in the context “shall be payable” and is not in my view, on an ordinary interpretation of those words, merely a reference to the manner of calculation of the total number of days leave to be paid as a leave gratuity.
1.7 In all the circumstances I am of the view that to hold that the payment of a leave gratuity in Mr Bosman’s circumstances is subject to the discretion of the departmental head would be to import wording into the Statute an Regulations which wording is simply not there.
2. AWARD
In all the circumstances I am of the view that Mr Bosman, having applied for the payment of the gratuity benefits in the qualifying circumstances as set out in Regulation 59,is entitled to payment of that benefit up to a maximum of 184 days. The Department of Education is not vested with a discretion to refuse such an application for payment of the leave gratuity where the applicant such as Mr Bosman falls within the category provided for in Regulation 59.
ADV G E BARLOW
IMSSA ARBITRATOR
20 JULY 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES NW
APPLICANT D BOSMAN
RESPONDENT DEPARTMENT OF EDUCATION NW
NATURE SALARY / BENEFITS
ARBITRATOR GE BARLOW
DATE OF ARBITRATION 8 JULY 1999
VENUE POTCHEFSTROOM
REPRESENTATION:
APPLICANT MR P VENTER (PSA)
RESPONDENT ATTORNEY J ROBINSON
AWARD:
In all the circumstances I am of the view that Mr Bosman, having applied for the payment of the gratuity benefits in the qualifying circumstances as set out in Regulation 59,is entitled to payment of that benefit up to a maximum of 184 days. The Department of Education is not vested with a discretion to refuse such an application for payment of the leave gratuity where the applicant such as Mr Bosman falls within the category provided for in Regulation 59.
DATE OF AWARD 20 JULY 1999
Province: Eastern Cape
Applicant: D BOSMAN
Respondent: DEPARTMENT OF EDUCATION NW
Issue: Unfair Dismissal - Constructive Dismissal
Venue: POTCHEFSTROOM
Award Date: 20 July 1999
Arbitrator: GE BARLOW
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES NW
In the arbitration between:
MR D BOSMAN APPLICANT
and
THE DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR’S AWARD
1 . INTRODUCTION
1.1 The parties were in agreement, there being no real dispute of fact, that it would be unnecessary to adduce oral evidence in respect of the essential disputes between the parties which may be defined as follows : The Grievant contends that in terms of the provisions of Regulation 15(4) of certain regulations promulgated under the Employment of Educators Act as published in the Government Gazette No. 16814 of 13 November 1995, an educator is vested with the right to retire at the age of 50 years. The Grievant contends that in terms of Regulation 59 a leave gratuity may inter alia be paid out to an educator in permanent capacity on his request where he has an option to retire and does not retire. It is the Grievant’s contention that this gratuity must be paid to the educator and that no discretion is vested in the Department in determining whether to pay such gratuity or not. To this extent the Grievant relies on the wording of Regulation 60(2) to the effect that “A leave gratuity up to a maximum of 184 days shall be payable to an educator referred to in Regulation 59(c) or 59(d).” The Department contends that in terms of the legislation, the departmental head is vested with a discretion to decide whether the gratuity that is applied for is to be paid or not. Accordingly and in terms of an agreement reached between the parties, this arbitration deals only with the question whether the departmental head has such a discretion to decide whether the gratuity applied for is to be paid out or not and this relates solely to the interpretation of the enabling regulations. The parties are in further agreement that should I decide that the departmental head is vested with the discretion, then such discretion falls to be exercised in a fair and proper manner and the issue as to whether the discretion was exercised in such a manner will be the subject of a further arbitration to be scheduled in that event. The arbitration may well involve the hearing of oral evidence.
1.2 Both parties submitted written arguments and I am indebted to them for their detailed submissions. It is not my intention to repeat the contents of those written submissions but rather to deal with an analysis of the legislation in question.
1.3 The Employment of Educators Act of 1998 came into effect on the 2nd of October 1998 replacing the Educators Employment Act of 1994. Section 10(3)(a) affords an educator the right to retire on or after attaining the age of 55 years. Section 35 of that Act enables the Minister to make regulations in regard to a wide ambit. Certain regulations regarding the terms and conditions of the employment of educators were promulgated in Government Notice No. R1743 of the Government Gazette No. 16814 of 13 November 1995 as amended by various further Government notices of 1 September 1997, 11 November 1997, 17 April 1998, 24 April 1998 and 9 December 1998.
1.4 The specific regulation which deals with leave gratuities is that contained in Regulation 59 which states the following:
“A leave gratuity, calculated as set out in Regulations 61 and 62 may be paid -.....
(b) to an educator serving in a permanent capacity at his or her written request, where such educator has the option of retiring on pension before attaining the compulsory retirement age and does not retire before attaining such age.”
1.5 In essence, the argument addressed on behalf of the department is that the word "may" used in Regulation 59 bestows a discretion on the relevant administrative official, i.e. that the word "may" clearly imports an alternative leaving the administrative official a discretion whether to grant the application or not. I was referred to certain authorities in this regard. The argument continues that the head of department has a discretion both in relation to Regulation 59(a) and (b).
1.6 The difficulty that I have with the argument addressed on behalf of the department is this. Nowhere in the enabling Act (the Employment of Educators Act No. 76 of 1998) nor in the Regulations themselves is there any reference to any administrative official, be it the head of department or any other person being vested with the power to exercise any discretion in regard to the leave gratuity. If the word “may” used in Regulation 59 was intended by the legislature to confer a discretion on an administrative official within the department, the immediate question which would then have to be asked is what is the identity of the administrative official who is vested with such authority. To this extent the case law that I was referred to deals with entirely different legislation in that in the legislation referred to in that case law, an administrative official is identified and the use of the word “may” related to a decision to be taken by that official has been interpreted as vesting the administrative official with a discretion. However, in the present Act and Regulations under consideration, there is no reference to an administrative official performing any function in regard to leave gratuity. In addition, I am of view that had it been the intention of the legislature to vest a discretion in an administrative official in regard to the leave gratuity, then not only would such administrative official have been identified but the grounds, bases or guidelines upon which he or she was to exercise that discretion one way or the other would have been identified for the purposes of clarity. The use of the word “may” in Regulation 59 identifies no more in my view, than the circumstances in which a leave gratuity will be paid out. I find support for my view in the fact that Regulation 62 entitled “Payment of leave gratuity” similarly merely anticipates the application for payment of a leave gratuity without any reference to an administrative decision. In addition, the use of the word "shall" in Regulation 60(1) is used in the context “shall be payable” and is not in my view, on an ordinary interpretation of those words, merely a reference to the manner of calculation of the total number of days leave to be paid as a leave gratuity.
1.7 In all the circumstances I am of the view that to hold that the payment of a leave gratuity in Mr Bosman’s circumstances is subject to the discretion of the departmental head would be to import wording into the Statute an Regulations which wording is simply not there.
2. AWARD
In all the circumstances I am of the view that Mr Bosman, having applied for the payment of the gratuity benefits in the qualifying circumstances as set out in Regulation 59,is entitled to payment of that benefit up to a maximum of 184 days. The Department of Education is not vested with a discretion to refuse such an application for payment of the leave gratuity where the applicant such as Mr Bosman falls within the category provided for in Regulation 59.
ADV G E BARLOW
IMSSA ARBITRATOR
20 JULY 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES NW
APPLICANT D BOSMAN
RESPONDENT DEPARTMENT OF EDUCATION NW
NATURE SALARY / BENEFITS
ARBITRATOR GE BARLOW
DATE OF ARBITRATION 8 JULY 1999
VENUE POTCHEFSTROOM
REPRESENTATION:
APPLICANT MR P VENTER (PSA)
RESPONDENT ATTORNEY J ROBINSON
AWARD:
In all the circumstances I am of the view that Mr Bosman, having applied for the payment of the gratuity benefits in the qualifying circumstances as set out in Regulation 59,is entitled to payment of that benefit up to a maximum of 184 days. The Department of Education is not vested with a discretion to refuse such an application for payment of the leave gratuity where the applicant such as Mr Bosman falls within the category provided for in Regulation 59.
DATE OF AWARD 20 JULY 1999