PSES CAR 000154
PSES CAR 000154
Award Date:
25 July 1999
Case Number: PSES CAR 000154
Province: Western Cape
Applicant: R R LINKS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: BEAUFORT WEST
Award Date: 25 July 1999
Arbitrator: ADELE WILDSHUT
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR000154 WC
In the arbitration between:
R R LINKS APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
REPRESENTATIVES :
WESTERN CAPE EDUCATION DEPT : Mr C R Esau
(Labour Relations)
GRIEVANT : Mr J J VAN DER LINDE
(Colleague)
1 . INTRODUCTION
The matter arose out of the right-sizing process instituted by the Department in terms of resolution 3/96 during 19996 at the Bastiaanse Secondary School in Beaufort West.
2 . TERMS OF REFERENCE
The arbitrator’s terms of reference are set out in Annexure B of ELRC resolution 7 of 1997 : “... to arbitrate any dispute ...and to award a remedy which is considered fair and appropriate to settle the dispute”.
3 . THE ISSUES
3.1 Mr R R Links contended that at the time of the right-sizing he was a temporary teacher in a substantive post and therefore, in the process of being declared in excess, he should have enjoyed the same rights as teachers in permanent posts as envisaged by resolution 3/96. This would have enabled him to be placed on the redeployment list at the time. In addition, he contended, that temporary teachers in different localities were treated differently by the Department, with teachers in the rural areas not enjoying the same treatment as those in the metropolitan areas. He requested that he be placed on the redeployment list in the Western Cape so that he may be considered for a permanent post.
3.2 The Department contended that during the process of rationalisation, Mr Links was treated in the manner envisaged by the resolution. His application to be placed on the redeployment list was turned down on the basis that he had only been appointed as an educator for a few months. Furthermore, the decision of the Grove Case resulted in the deployment list compiled in terms of resolution 3/96 being abolished and a new right-sizing process being put in place.
3.3 The Department further contended that all educators were treated in the same manner during the rationalisation process.
4 . THE FACTS
The following facts were presented in argument and are undisputed.
4.1 Mr R R Links began his teaching career in February 1996 at the Beaufort West Secondary School as a substitute teacher for a period of two months. In May of that year he moved to Bastiaanse High School as a temporary teacher in a substantive post until 31 December 1996, before taking up a post at the Beaufort West Secondary School in January 1997, where he taught until December of that year. These appointments were made on a quarterly basis.
4.2 During 1996, Mr Links was among the 10 teachers declared in excess at the Bastiaanse Secondary School. He applied to be placed on the redeployment list, but this was unsuccessful. He was advised by Mr Van der Linde, the acting principal at the time, and Mr Frolick, the circuit manager, to apply for other posts as there were no longer any posts available at the Bastiaanse Secondary School.
4.3 Mr Links subsequently obtained posts at other schools in Beaufort West, before taking up a permanent post in the Free State Province in September 1998.
4.4 On 25 May 1998, he lodged a dispute with the Western Cape Education Department.
5 . EVIDENCE AND ARGUMENT
5.1 The parties refrained from calling any witnesses and presented the following arguments in support of their contentions.
5.2 Mr Van der Linde, on behalf of the grievant :
5.2.1 Mr Links should have been placed on the redeployment list in terms of resolution 3/96 in that he was in a substantive post as at 1 July 1996.
5.2.2 Furthermore, he - alongside other educators in the rural areas, was treated differently to those in the metropolitan area, in that temporary educators remained in their posts and subsequently became permanent.
5.2.3 Mr Links had relied on the advice of Mr Frolick, the circuit manager and the acting principal, that temporary teachers who had been declared in excess had to leave their schools and find alternative posts, in addition to applying to be placed on the redeployment list. Mr Links had left Bastiaanse Secondary School at the end of 1996 on this advice, and later obtained temporary posts at other schools.
5.2.4 Eventually, he left the Western Cape Province and accepted a permanent post in another province. He regards the Western Cape at his home, and wants to return to this province.
5.3 Mr Esau, for the Department argued as follows :
5.3.1 The only way in which a temporary educator could be deemed permanently appointed was in terms of section 12.1 of circular 68/96 provided that they were qualified, not been declared in excess and recommended for permanency by the governing body.
5.3.2 Mr Links’ application to be placed on the redeployment list was turned down, as he had only been an educator for a period of 5 months and did not have enough years of service.
5.3.3 Furthermore, as a result of this Grove case decided on the 20 June 1997, the deployment list compiled as a result of resolution 8/96 fell away. Subsequently, the only way in which to become permanent is by being appointed to an advertised post.
5.3.4 The Department questioned the delay of 24 months between the time the disputant was alleged to suffer the grievance and the date on which he lodged a dispute.
5.3.5 The Department denied that it had treated educators in different locations differently. It could well be that many educators became permanent through the mechanism of circular 68/96 prior to the Grove case.
5.3.6 Finally, the relief the grievant is seeking is not possible as there is currently no redeployment list. The only list which now exists, is the one of educators who had been declared in excess during the second round.
6 . DISCUSSION OF EVIDENCE AND ARGUMENT
6.1 I have to decide whether there are any grounds for granting the relief the disputant is seeking. According to the arbitrator’s terms of reference, I have to establish whether he suffered any procedural or substantive unfairness.
6.2 Mr Links was declared in excess alongside 14 other educators, his application to be placed on the redeployment list was turn down on the grounds of insufficient years of service. No evidence or argument was led to the effect that this reason was invalid. Nor was there any evidence that Mr Links objected to this decision. Instead, he accepted the advice of the circuit manager and successfully obtained other posts, until he obtained a permanent appointment in another province.
6.3 Mr Links alleged that he had been treated in the way he had because of where he was located. However, he was unable to present any evidence or argument to substantiate this allegation. Although he may well have experienced a sense of grievance, he only lodged a dispute two years afterwards.
6.4 As a result of the Grove case, the redeployment list became redundant and the parties negotiated a different process.
6.5 There is a possibility for Mr Links to obtain a permanent post in the Western Cape Province in the future by applying for an advertised post. Although, this currently appears remote due to the large number of educators in the province who have to be placed in posts, it is not inconceivable that this situation may change in the medium to long term.
7 . DETERMINATION
I am unable to find that Mr Links suffered any procedural or substantive unfairness and thus unable to grant him the relief he is seeking.
8 . AWARD
I find for the Department that the status quo remains.
_______________________
ARBITRATOR
ADELE WILDSCHUT
Date : 25 July 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CAR 000154
APPLICANT R R LINKS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE PROCEDURAL UNFAIRNESS
ARBITRATOR ADELE WILDSHUT
DATE OF ARBITRATION
VENUE BEAUFORT WEST
REPRESENTATION:
APPLICANT MR J J VAN DER LINDE
RESPONDENT MR C R ESAU
AWARD:
I am unable to find that Mr Links suffered any procedural or substantive unfairness and thus unable to grant him the relief he is seeking.
I find for the Department that the status quo remains
DATE OF AWARD 25 JULY 1999
Province: Western Cape
Applicant: R R LINKS
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: BEAUFORT WEST
Award Date: 25 July 1999
Arbitrator: ADELE WILDSHUT
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES CAR000154 WC
In the arbitration between:
R R LINKS APPLICANT
and
WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT
ARBITRATION AWARD
REPRESENTATIVES :
WESTERN CAPE EDUCATION DEPT : Mr C R Esau
(Labour Relations)
GRIEVANT : Mr J J VAN DER LINDE
(Colleague)
1 . INTRODUCTION
The matter arose out of the right-sizing process instituted by the Department in terms of resolution 3/96 during 19996 at the Bastiaanse Secondary School in Beaufort West.
2 . TERMS OF REFERENCE
The arbitrator’s terms of reference are set out in Annexure B of ELRC resolution 7 of 1997 : “... to arbitrate any dispute ...and to award a remedy which is considered fair and appropriate to settle the dispute”.
3 . THE ISSUES
3.1 Mr R R Links contended that at the time of the right-sizing he was a temporary teacher in a substantive post and therefore, in the process of being declared in excess, he should have enjoyed the same rights as teachers in permanent posts as envisaged by resolution 3/96. This would have enabled him to be placed on the redeployment list at the time. In addition, he contended, that temporary teachers in different localities were treated differently by the Department, with teachers in the rural areas not enjoying the same treatment as those in the metropolitan areas. He requested that he be placed on the redeployment list in the Western Cape so that he may be considered for a permanent post.
3.2 The Department contended that during the process of rationalisation, Mr Links was treated in the manner envisaged by the resolution. His application to be placed on the redeployment list was turned down on the basis that he had only been appointed as an educator for a few months. Furthermore, the decision of the Grove Case resulted in the deployment list compiled in terms of resolution 3/96 being abolished and a new right-sizing process being put in place.
3.3 The Department further contended that all educators were treated in the same manner during the rationalisation process.
4 . THE FACTS
The following facts were presented in argument and are undisputed.
4.1 Mr R R Links began his teaching career in February 1996 at the Beaufort West Secondary School as a substitute teacher for a period of two months. In May of that year he moved to Bastiaanse High School as a temporary teacher in a substantive post until 31 December 1996, before taking up a post at the Beaufort West Secondary School in January 1997, where he taught until December of that year. These appointments were made on a quarterly basis.
4.2 During 1996, Mr Links was among the 10 teachers declared in excess at the Bastiaanse Secondary School. He applied to be placed on the redeployment list, but this was unsuccessful. He was advised by Mr Van der Linde, the acting principal at the time, and Mr Frolick, the circuit manager, to apply for other posts as there were no longer any posts available at the Bastiaanse Secondary School.
4.3 Mr Links subsequently obtained posts at other schools in Beaufort West, before taking up a permanent post in the Free State Province in September 1998.
4.4 On 25 May 1998, he lodged a dispute with the Western Cape Education Department.
5 . EVIDENCE AND ARGUMENT
5.1 The parties refrained from calling any witnesses and presented the following arguments in support of their contentions.
5.2 Mr Van der Linde, on behalf of the grievant :
5.2.1 Mr Links should have been placed on the redeployment list in terms of resolution 3/96 in that he was in a substantive post as at 1 July 1996.
5.2.2 Furthermore, he - alongside other educators in the rural areas, was treated differently to those in the metropolitan area, in that temporary educators remained in their posts and subsequently became permanent.
5.2.3 Mr Links had relied on the advice of Mr Frolick, the circuit manager and the acting principal, that temporary teachers who had been declared in excess had to leave their schools and find alternative posts, in addition to applying to be placed on the redeployment list. Mr Links had left Bastiaanse Secondary School at the end of 1996 on this advice, and later obtained temporary posts at other schools.
5.2.4 Eventually, he left the Western Cape Province and accepted a permanent post in another province. He regards the Western Cape at his home, and wants to return to this province.
5.3 Mr Esau, for the Department argued as follows :
5.3.1 The only way in which a temporary educator could be deemed permanently appointed was in terms of section 12.1 of circular 68/96 provided that they were qualified, not been declared in excess and recommended for permanency by the governing body.
5.3.2 Mr Links’ application to be placed on the redeployment list was turned down, as he had only been an educator for a period of 5 months and did not have enough years of service.
5.3.3 Furthermore, as a result of this Grove case decided on the 20 June 1997, the deployment list compiled as a result of resolution 8/96 fell away. Subsequently, the only way in which to become permanent is by being appointed to an advertised post.
5.3.4 The Department questioned the delay of 24 months between the time the disputant was alleged to suffer the grievance and the date on which he lodged a dispute.
5.3.5 The Department denied that it had treated educators in different locations differently. It could well be that many educators became permanent through the mechanism of circular 68/96 prior to the Grove case.
5.3.6 Finally, the relief the grievant is seeking is not possible as there is currently no redeployment list. The only list which now exists, is the one of educators who had been declared in excess during the second round.
6 . DISCUSSION OF EVIDENCE AND ARGUMENT
6.1 I have to decide whether there are any grounds for granting the relief the disputant is seeking. According to the arbitrator’s terms of reference, I have to establish whether he suffered any procedural or substantive unfairness.
6.2 Mr Links was declared in excess alongside 14 other educators, his application to be placed on the redeployment list was turn down on the grounds of insufficient years of service. No evidence or argument was led to the effect that this reason was invalid. Nor was there any evidence that Mr Links objected to this decision. Instead, he accepted the advice of the circuit manager and successfully obtained other posts, until he obtained a permanent appointment in another province.
6.3 Mr Links alleged that he had been treated in the way he had because of where he was located. However, he was unable to present any evidence or argument to substantiate this allegation. Although he may well have experienced a sense of grievance, he only lodged a dispute two years afterwards.
6.4 As a result of the Grove case, the redeployment list became redundant and the parties negotiated a different process.
6.5 There is a possibility for Mr Links to obtain a permanent post in the Western Cape Province in the future by applying for an advertised post. Although, this currently appears remote due to the large number of educators in the province who have to be placed in posts, it is not inconceivable that this situation may change in the medium to long term.
7 . DETERMINATION
I am unable to find that Mr Links suffered any procedural or substantive unfairness and thus unable to grant him the relief he is seeking.
8 . AWARD
I find for the Department that the status quo remains.
_______________________
ARBITRATOR
ADELE WILDSCHUT
Date : 25 July 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES CAR 000154
APPLICANT R R LINKS
RESPONDENT DEPARTMENT OF EDUCATION
NATURE PROCEDURAL UNFAIRNESS
ARBITRATOR ADELE WILDSHUT
DATE OF ARBITRATION
VENUE BEAUFORT WEST
REPRESENTATION:
APPLICANT MR J J VAN DER LINDE
RESPONDENT MR C R ESAU
AWARD:
I am unable to find that Mr Links suffered any procedural or substantive unfairness and thus unable to grant him the relief he is seeking.
I find for the Department that the status quo remains
DATE OF AWARD 25 JULY 1999