PSES NP
PSES NP
Award Date:
16 August 1999
Case Number: PSES NP
Province: Limpopo
Applicant: S K NDLOVU & OTHERS
Respondent: THE NORTHERN PROVINCE DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 16 August 1999
Arbitrator: CHEADLE THOMPSON & HAYSOM
IN THE ARBITRATION BETWEEN
THE SOUTH AFRICAN DEMOCRATIC TEACHERS UNION 1ST APPLICANT
KGOBALULE EDWARD MAKGERU 2ND APPLICANT
STARK KENNETH NDLOVU 3RD APPLICANT
PATRICK CLIVE MALATJI 4TH APPLICANT
ELIJAH SEKGOKA 5TH APPLICANT
MABOKE LIVER LETSOALO 6TH APPLICANT
and
THE NORTHERN PROVINCE DEPARTMENT OF EDUCATION RESPONDENT
STATEMENT OF CASE
1 . PARTIES
1.1 The First Applicant is the South African Democratic Teacher’s Union (“SADTU” or the “Union”), a registered trade union with its head office situated at 49 Gould Street, Johannesburg. The First Applicant bring this application on behalf of its members, the Second and further Applicants (“the individual Applicants”).
1.2 The Second Applicant is Kgobalule Edward Makgeru, an adult male educator residing at Magnet Heights, Ga-Makgere, Sekhukhune.
1.3 The Third Applicant is Stark Kenneth Ndlovu, an adult male educator residing at Tintswalo Village, Acornhoek.
1.4 The Fourth Applicant is Patrick Clive Malatjie, an adult male educator residing at Buffelshoek Village, Acornhoek.
1.5 The Fifth Applicant is Elijah Sekgoka, an adult male educator residing at Balloon Village, Trichardtsdal.
1.6 The Sixth Applicant is Maboke Liver Letsoalo, an adult male educator, residing at Lephepane Vilalge, Naphuno.
1.7 The Northern Province Department of Education (“the Department”) employs the second and further Applicants as educators.
1.8 The Respondent is the employer of the individual Applicants, namely the Head of the Department. The Department’s offices are situated at 101 Dorp Street, Pietersburg.
2 . MATERIAL FACTS ON WHICH APPLCANTS RELY
2.1 THE SECOND APPLICANT
2.1.1 The Second Applicant applied for a vacant principalship post at Nthlaiseng Primary School as advertised in Provincial Gazettes No. 219 dated 13 January 1997 and No. 302 dated 28 October 1997.
2.1.2 In December 1997 the Second Applicant attended an interview convened by the school’s governing body.
2.1.3 On 2 May 1998 the Second Applicant received a provisional letter of appointment for the principalship post at Nthlaiseng Primary School from the Department’s area office.
2.1.4 On or about 4 May 1998 the Second Applicant completed part I of the form entitled “Applicant for an Educator’s Post” in respect of the principal post at Nthlaiseng. On the same day the school governing body’s chairperson completed and signed part II of the form in terms of which it recommended the Second Applicant in place the school governing body’s previous recommendation.
2.1.5 On 4 May 1998 the Second Applicant assumed his duties as principal at Nthlaiseng Primary School.
2.1.6 In July 1998 the Second Applicant recieved a letter of appointment from the Department dated 30 June 1998.
2.1.7 On 5 October 1998 the Second Applicant received received a letter from the Department notifying him of the withdrawal of his appointment as principal at Nthlaiseng Primary School.
2.1.8 On the same day the Second Applicant then attended the area office of the Department to seek clarification about the letter of withdrawal. He was advised by the Area Manager, Mr Mahapa, that he (the Second Applicant) had to call a meeting with the school governing body to inform them about the withdrawal of his appointment and to hand over the reigns to Ms Malatjie.
2.1.9 On 7 October 1998 the Second Applicant convened a meeting with the school governing body and informed them about the withdrawal. He then handed over the administration of the school to Mrs Malatjie who was also present at that meeting.
2.1.10 After his withdrawal the Second Applicant returned to his post at Potlake Secondary School. As a result his salary decreased from R84 423,00 to R66 540,00 per annum. (These were the salaries before July 1998).
2.2 THE THIRD APPLICANT
2.2.1 The Third Applicant applied for a principalship post at Mahlathi Primary School as advertised in the Provincial Gazette No. 302 dated the 28th November 1997.
2.2.2 In March 1999 he attended an interview convened by the school governing body.
2.2.3 He then received a letter of appointment from the head of the Department.
2.2.4 On or about 30 July the Third Applicant attended his inauguration at the school. The Department’s area manager, Mr Sithole, members of the school’s governing body, members of staff and representatives of the First Applicant attended the inauguration.
2.2.5 On 1 August 1998 the Third Applicant assumed duty as principal of the Mahlathi School.
2.2.6 In September 1998 the Third Applicant was invited to the Regional Office of the Department situated at in Thulamahashe regarding the withdrawal of his principalship post. He was advised that his post as principal at Mahlathi Primary School has been withdrawn and that he had to report for duty at Mabungwane Primary School.
2.2.7 He was never paid a principal’s salary scale.
2.3 THE FOURTH APPLICANT
2.3.1 The Fourth Applicant applied in October 1997 for the principalship post at Mapateletse Primary School, Morage Primary School and Powerline Primary School and was interviewed at all three schools by panels appointed by the respective school governing bodies.
2.3.2 The Department in a letter dated 25 June 1998 appointed him as principal at Mapateletse Primary School. He assumed duty on 1 August 1998.
2.3.3 The Fourth Applicant was in fact recommended for appointment to the post of principalship by the school governing bodies at the two other schools.
2.3.4 In September 1998 he was presented with a letter of withdrawal dated 16 September 1998 by Mr Nkina, the regional director of the Department. Mr Nkina informed the Fourth Applicant that there had been an administrative error with his appointment. The Fourth Applicant returned immediately to Hladishe High School.
2.3.5 The Fourth Applicant was never paid as a principal while at Mapateletse School.
2.4 THE FIFTH APPLICANT
2.4.1 The Fifth Applicant applied for a principalship post at Dipone Secondary School in November 1997 as advertised in the provincial gazette no. 302 dated 28 October 1997. In March 1998 he attended the interview convened by the school governing body for the post.
2.4.2 In July 1998 he received a letter of appointment for the principalship post from the Department which was effective from 1 August 1998.
2.4.3 The Fifth Applicant was introduced to the school on or about 28 July 1998. On 3 August 1998 the Fifth Applicant reported for duty. He was introduced to the staff and learners. The Fifth Applicant worked at the school for 3, 4 and 5 August 1998.
2.4.4 On 6 August 1998 representatives of the school governing body (namely the parent component) informed him that they were surprised that he had reported at the school before the inspector had informed them of his presence. They also informed him that his safety at the school could not be guaranteed and asked him to leave.
2.4.5 The Fifth Applicant reported the matter to the circuit inspector, Mr Tshwale, who advised him to report at Rakgolokwana School until the matter was resolved. On 11 August 1998 he reported at Rakgolokwana.
2.4.6 The Fifth Applicant received a letter dated 19 August 1998 from the Department informing him that his appointment was suspended until further notice and that he had to remain at Dipone.
2.4.7 On 5 May 1999 he received a letter from the Department dated 3 May 1999 informing him that his appointment was withdrawn and that the 30th June 1999 was his last day as principal.
2.5 THE SIXTH APPLICANT
2.5.1 The Sixth Applicant applied for the principalship post at Mogabe Primary School in January 1997 and in November 1997 as advertised in Provincial Gazettes No. 219 dated 13 January 1997 and No. 302 dated 28 October 1997.
2.5.2 He attended an interview convened by the school governing body in February 1998.
2.5.3 Prior to his receipt of the results of the interview Mr Thema the circuit inspector, requested him to report at the circuit office in Thabina on 22 September 1998.
2.5.4 On 22 September 1998 he attended the circuit office and found Mr Thema with the acting principal of Mogabe Primary School and the Regional Director, Mr Machimane.
2.5.5 The Sixth Applicant was presented with a letter of withdrawal from the post of principalship of Mogabe Primary School. The Sixth Applicant had never received the letter of appointment. The Sixth Applicant was then presented with both the letters of appointment and withdrawal.
2.5.6 From the letter of appointment it appeared that the Sixth Applicant should have resumed duty as a principal at Mogabe on 1 August 1998.
2.5.7 After the withdrawal he then went back to Mafe Primary School where he is still employed as an educator.
3 . STATEMENT OF LEGAL ISSUES
3.1 The Applicants submit that the withdrawal of their appointments as principals was an unfair labour practice as contemplated in item 2(1)(b) of schedule 7 of the Labour Relations Act No. 66 of 1995, as amended (“the LRA”). The Respondent has acted unfairly to the individual Applicants relating to their promotion to the posts of principal.
3.2 The individual Applicants’ appointments were valid. The Respondent’s conduct amounted to the termination of the individual Applicants’ contracts of employment as principals and the rehiring of them on substantially interior terms and conditions of employment. This constitutes a material breach of the individual Applicants’ contracts of employment as principals.
3.3 The Respondent has failed to justify the unilateral demotion and decrease to the individual Applicants’ salaries.
3.4 The individual Applicants relied upon the validity of the letters of appointment (alternatively, were entitled to rely upon the validity of those letters of appointment).
3.5 The Respondent has not remunerated the individual Applicants as principals either from the date that they assumed their duties as principals or since the withdrawal of their appointments. The Respondent has therefore breached the contracts of employment. As a result the individual Applicants have suffered financial prejudice.
3.6 The individual Applicants’ career prospects have been detrimentally affected, especially in the case of the Fourth Applicant who had been recommended by the school governing bodies of other schools.
3.7 The individual Applicants’ conditions of employment and work security have been prejudiced and jeopardised.
3.8 The so-called withdrawals were made unilaterally without negotiating (alternatively consulting) with the Applicants. In so doing the Respondent acted unprocedurally.
4 . RELIEF SOUGHT
In the circumstances, the Applicants request the Arbitrator to make an award in the following terms:
4.1 That the Second and further Applicants be reinstated as principals with effect from the date of their appointments as principals to the said posts. Alternatively:
4.2 Compensation as may be just and equitable in the circumstances.
4.3 Further and/or alternative relief.
4.4 A schedule of documents that are material and relevant to the Applicants’ claim is attached hereto marked annexure “A”.
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES NP
APPLICANT S K NDLOVU & OTHERS
RESPONDENT THE NORTHERN PROVINCE DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR CHEADLE THOMPSON & HAYSOM
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT
RESPONDENT
AWARD:
1 That the Second and further Applicants be reinstated as principals with effect from the date of their appointments as principals to the said posts. Alternatively:
2 Compensation as may be just and equitable in the circumstances.
DATE OF AWARD 16 AUGUST 1999
Province: Limpopo
Applicant: S K NDLOVU & OTHERS
Respondent: THE NORTHERN PROVINCE DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 16 August 1999
Arbitrator: CHEADLE THOMPSON & HAYSOM
IN THE ARBITRATION BETWEEN
THE SOUTH AFRICAN DEMOCRATIC TEACHERS UNION 1ST APPLICANT
KGOBALULE EDWARD MAKGERU 2ND APPLICANT
STARK KENNETH NDLOVU 3RD APPLICANT
PATRICK CLIVE MALATJI 4TH APPLICANT
ELIJAH SEKGOKA 5TH APPLICANT
MABOKE LIVER LETSOALO 6TH APPLICANT
and
THE NORTHERN PROVINCE DEPARTMENT OF EDUCATION RESPONDENT
STATEMENT OF CASE
1 . PARTIES
1.1 The First Applicant is the South African Democratic Teacher’s Union (“SADTU” or the “Union”), a registered trade union with its head office situated at 49 Gould Street, Johannesburg. The First Applicant bring this application on behalf of its members, the Second and further Applicants (“the individual Applicants”).
1.2 The Second Applicant is Kgobalule Edward Makgeru, an adult male educator residing at Magnet Heights, Ga-Makgere, Sekhukhune.
1.3 The Third Applicant is Stark Kenneth Ndlovu, an adult male educator residing at Tintswalo Village, Acornhoek.
1.4 The Fourth Applicant is Patrick Clive Malatjie, an adult male educator residing at Buffelshoek Village, Acornhoek.
1.5 The Fifth Applicant is Elijah Sekgoka, an adult male educator residing at Balloon Village, Trichardtsdal.
1.6 The Sixth Applicant is Maboke Liver Letsoalo, an adult male educator, residing at Lephepane Vilalge, Naphuno.
1.7 The Northern Province Department of Education (“the Department”) employs the second and further Applicants as educators.
1.8 The Respondent is the employer of the individual Applicants, namely the Head of the Department. The Department’s offices are situated at 101 Dorp Street, Pietersburg.
2 . MATERIAL FACTS ON WHICH APPLCANTS RELY
2.1 THE SECOND APPLICANT
2.1.1 The Second Applicant applied for a vacant principalship post at Nthlaiseng Primary School as advertised in Provincial Gazettes No. 219 dated 13 January 1997 and No. 302 dated 28 October 1997.
2.1.2 In December 1997 the Second Applicant attended an interview convened by the school’s governing body.
2.1.3 On 2 May 1998 the Second Applicant received a provisional letter of appointment for the principalship post at Nthlaiseng Primary School from the Department’s area office.
2.1.4 On or about 4 May 1998 the Second Applicant completed part I of the form entitled “Applicant for an Educator’s Post” in respect of the principal post at Nthlaiseng. On the same day the school governing body’s chairperson completed and signed part II of the form in terms of which it recommended the Second Applicant in place the school governing body’s previous recommendation.
2.1.5 On 4 May 1998 the Second Applicant assumed his duties as principal at Nthlaiseng Primary School.
2.1.6 In July 1998 the Second Applicant recieved a letter of appointment from the Department dated 30 June 1998.
2.1.7 On 5 October 1998 the Second Applicant received received a letter from the Department notifying him of the withdrawal of his appointment as principal at Nthlaiseng Primary School.
2.1.8 On the same day the Second Applicant then attended the area office of the Department to seek clarification about the letter of withdrawal. He was advised by the Area Manager, Mr Mahapa, that he (the Second Applicant) had to call a meeting with the school governing body to inform them about the withdrawal of his appointment and to hand over the reigns to Ms Malatjie.
2.1.9 On 7 October 1998 the Second Applicant convened a meeting with the school governing body and informed them about the withdrawal. He then handed over the administration of the school to Mrs Malatjie who was also present at that meeting.
2.1.10 After his withdrawal the Second Applicant returned to his post at Potlake Secondary School. As a result his salary decreased from R84 423,00 to R66 540,00 per annum. (These were the salaries before July 1998).
2.2 THE THIRD APPLICANT
2.2.1 The Third Applicant applied for a principalship post at Mahlathi Primary School as advertised in the Provincial Gazette No. 302 dated the 28th November 1997.
2.2.2 In March 1999 he attended an interview convened by the school governing body.
2.2.3 He then received a letter of appointment from the head of the Department.
2.2.4 On or about 30 July the Third Applicant attended his inauguration at the school. The Department’s area manager, Mr Sithole, members of the school’s governing body, members of staff and representatives of the First Applicant attended the inauguration.
2.2.5 On 1 August 1998 the Third Applicant assumed duty as principal of the Mahlathi School.
2.2.6 In September 1998 the Third Applicant was invited to the Regional Office of the Department situated at in Thulamahashe regarding the withdrawal of his principalship post. He was advised that his post as principal at Mahlathi Primary School has been withdrawn and that he had to report for duty at Mabungwane Primary School.
2.2.7 He was never paid a principal’s salary scale.
2.3 THE FOURTH APPLICANT
2.3.1 The Fourth Applicant applied in October 1997 for the principalship post at Mapateletse Primary School, Morage Primary School and Powerline Primary School and was interviewed at all three schools by panels appointed by the respective school governing bodies.
2.3.2 The Department in a letter dated 25 June 1998 appointed him as principal at Mapateletse Primary School. He assumed duty on 1 August 1998.
2.3.3 The Fourth Applicant was in fact recommended for appointment to the post of principalship by the school governing bodies at the two other schools.
2.3.4 In September 1998 he was presented with a letter of withdrawal dated 16 September 1998 by Mr Nkina, the regional director of the Department. Mr Nkina informed the Fourth Applicant that there had been an administrative error with his appointment. The Fourth Applicant returned immediately to Hladishe High School.
2.3.5 The Fourth Applicant was never paid as a principal while at Mapateletse School.
2.4 THE FIFTH APPLICANT
2.4.1 The Fifth Applicant applied for a principalship post at Dipone Secondary School in November 1997 as advertised in the provincial gazette no. 302 dated 28 October 1997. In March 1998 he attended the interview convened by the school governing body for the post.
2.4.2 In July 1998 he received a letter of appointment for the principalship post from the Department which was effective from 1 August 1998.
2.4.3 The Fifth Applicant was introduced to the school on or about 28 July 1998. On 3 August 1998 the Fifth Applicant reported for duty. He was introduced to the staff and learners. The Fifth Applicant worked at the school for 3, 4 and 5 August 1998.
2.4.4 On 6 August 1998 representatives of the school governing body (namely the parent component) informed him that they were surprised that he had reported at the school before the inspector had informed them of his presence. They also informed him that his safety at the school could not be guaranteed and asked him to leave.
2.4.5 The Fifth Applicant reported the matter to the circuit inspector, Mr Tshwale, who advised him to report at Rakgolokwana School until the matter was resolved. On 11 August 1998 he reported at Rakgolokwana.
2.4.6 The Fifth Applicant received a letter dated 19 August 1998 from the Department informing him that his appointment was suspended until further notice and that he had to remain at Dipone.
2.4.7 On 5 May 1999 he received a letter from the Department dated 3 May 1999 informing him that his appointment was withdrawn and that the 30th June 1999 was his last day as principal.
2.5 THE SIXTH APPLICANT
2.5.1 The Sixth Applicant applied for the principalship post at Mogabe Primary School in January 1997 and in November 1997 as advertised in Provincial Gazettes No. 219 dated 13 January 1997 and No. 302 dated 28 October 1997.
2.5.2 He attended an interview convened by the school governing body in February 1998.
2.5.3 Prior to his receipt of the results of the interview Mr Thema the circuit inspector, requested him to report at the circuit office in Thabina on 22 September 1998.
2.5.4 On 22 September 1998 he attended the circuit office and found Mr Thema with the acting principal of Mogabe Primary School and the Regional Director, Mr Machimane.
2.5.5 The Sixth Applicant was presented with a letter of withdrawal from the post of principalship of Mogabe Primary School. The Sixth Applicant had never received the letter of appointment. The Sixth Applicant was then presented with both the letters of appointment and withdrawal.
2.5.6 From the letter of appointment it appeared that the Sixth Applicant should have resumed duty as a principal at Mogabe on 1 August 1998.
2.5.7 After the withdrawal he then went back to Mafe Primary School where he is still employed as an educator.
3 . STATEMENT OF LEGAL ISSUES
3.1 The Applicants submit that the withdrawal of their appointments as principals was an unfair labour practice as contemplated in item 2(1)(b) of schedule 7 of the Labour Relations Act No. 66 of 1995, as amended (“the LRA”). The Respondent has acted unfairly to the individual Applicants relating to their promotion to the posts of principal.
3.2 The individual Applicants’ appointments were valid. The Respondent’s conduct amounted to the termination of the individual Applicants’ contracts of employment as principals and the rehiring of them on substantially interior terms and conditions of employment. This constitutes a material breach of the individual Applicants’ contracts of employment as principals.
3.3 The Respondent has failed to justify the unilateral demotion and decrease to the individual Applicants’ salaries.
3.4 The individual Applicants relied upon the validity of the letters of appointment (alternatively, were entitled to rely upon the validity of those letters of appointment).
3.5 The Respondent has not remunerated the individual Applicants as principals either from the date that they assumed their duties as principals or since the withdrawal of their appointments. The Respondent has therefore breached the contracts of employment. As a result the individual Applicants have suffered financial prejudice.
3.6 The individual Applicants’ career prospects have been detrimentally affected, especially in the case of the Fourth Applicant who had been recommended by the school governing bodies of other schools.
3.7 The individual Applicants’ conditions of employment and work security have been prejudiced and jeopardised.
3.8 The so-called withdrawals were made unilaterally without negotiating (alternatively consulting) with the Applicants. In so doing the Respondent acted unprocedurally.
4 . RELIEF SOUGHT
In the circumstances, the Applicants request the Arbitrator to make an award in the following terms:
4.1 That the Second and further Applicants be reinstated as principals with effect from the date of their appointments as principals to the said posts. Alternatively:
4.2 Compensation as may be just and equitable in the circumstances.
4.3 Further and/or alternative relief.
4.4 A schedule of documents that are material and relevant to the Applicants’ claim is attached hereto marked annexure “A”.
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES NP
APPLICANT S K NDLOVU & OTHERS
RESPONDENT THE NORTHERN PROVINCE DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR CHEADLE THOMPSON & HAYSOM
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT
RESPONDENT
AWARD:
1 That the Second and further Applicants be reinstated as principals with effect from the date of their appointments as principals to the said posts. Alternatively:
2 Compensation as may be just and equitable in the circumstances.
DATE OF AWARD 16 AUGUST 1999