PSES NW
PSES NW
Award Date:
1 September 1999
Case Number: PSES NW
Province: North West
Applicant: SETSHEDI
Respondent: DEPARTMENT OF EDUCATION NW
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 1 September 1999
Arbitrator: I WILLIAMS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: PSES
In the matter between:
SETSHEDI APPLICANT
and
DEPARTMENT OF EDUCATION RESPONDENT
(NORTH WEST PROVINCE)
________________________________________________________
ARBITRATION AWARD
_________________________________________________________
1.
HEARING AND REPRESENTATION:
The matter was set down for hearing in August 1999 at the Respondent’s premises in Temba, Hammanskraal. Mr Rasealo and Mr Metse appeared on behalf of the Applicant and Respondent respectively.
2.
ISSUE AND POWERS:
The issue herein turns on the alleged unfair labour practice in that the Applicant was promoted to post level one (1) and not post level four (4) as advertised by the Department. The matter was referred to arbitration pursuant to the constitution of Education Labour Relation Council. I am enjoyed to make an appropriate order based on the evidence before me and with due regard to equity.
3.
BACKGROUND:
The Respondent advertised the vacancy of a school Principal as a post level (4) post. Mr Setshedi applied for the said vacancy and following short-listing and interviews, was duly appointed, albeit at post level one and not as advertised. The union did not content for appointment as per the advertisement but rather prayed for post level two (2) post appointment.
4.
EVALUATION OF EVIDENCE AND ARGUMENTS:
4.1 It is common cause that post levels of Principal posts are determined in accordance with Personnel Administration Measures (PAM), this being Regulations made in terms of section 5 of the Employment of Education Act of 1998. The parties are ad idem that the post in question was advertised as post level four (4) post.
4.2 Neither party led oral evidence and only documentary evidence was adduced and the arguments were based thereon.
4.3 Mr Metse tenaciously argued that snap surveys and not quarterly returns, are the yardstick used to determine post levels of Principal posts. He further contended that there is a policy of advertising vacancy at a higher level two years following the date of the first advertisement. He contended that the snap survey dated 3 February 1999 was indicative of the fact that the school in question had seventy nine (79) registered learners and according to PAM the Principal post should have been advertised as post level one (1) post. Mr Metse averred that the document which advertised the relevant post as a post level four (4) was a draft meant for distribution to and consumption by the district office and came into Mr Setshedi’s possession through inadvertence. A proper document was issued subsequent thereto and denoted the correct post level of the said Principal post.
4.4 Mr Maseala rejected the proposition that the document on the basis of which Mr Setshedi applied for the post was a draft. He contended that the said document was distributed to the teaching fraternity as whole to solicit applications for the post and was issued from the district office. He averred that the learner enrolment figures have changed materially since the formulation oft eh snap survey dated 3 February 1997. He submitted a document professed to be the snap survey for the period 1998/1999 grading the relevant Principal post as post level two (2) post given that the number of students is reflected as ninety (90).
4.5 Mr Raseala disputed the contention that there is a policy to advertise posts at a higher level two years following the first advertisement of the post at a lower level. He further adduced quarterly statistics for the last quarter of 1997 and the first quarter of 1998, and both had learner enrolment in excess of seventy nine (79).
4.6 The applicable Regulations provide that a primary ordinary school, which Leboalangwe School is, with fewer than eighty (80) learners is graded as P1 institution and accordingly the Principal post shall be post level one (1) post. Where the school has eighty (80) to hundred and fifty nine (159) learners, the grading of the school is increased to P2 and so does the post level of the Principal post.
4.7 The document in which the Principal post was advertised as a post level four (4) post was clearly erroneous. The said school never had enrolment figures in the region of seven hundred and twenty during the period 1997 to 1998, a necessary figure to grade a school as a P4 institution with a corresponding post level of a Principal post.
4.8 The union disputed the assertion that snap surveys formulated a year prior to advertisement are decisive regarding the grading of schools. Mr Reseala said the Department used information available in the last quarter of 1997 and new quarter of 1998. He further disputed the accuracy of the enrolment figures in the snap survey. The gist of his argument was that enrolment figures increase continuously as the inception of the school term and normally decrease in mid-year due to learners dropping out. In the light of the fact that the school had eighty four learners in the last quarter of 1997, he argued, the snap survey was clearly incorrect.
4.9 The Department failed to prove that it is the policy to use snap surveys and not quarterly returns to grade schools. The Respondent failed to lead oral evidence or adduce documentary proof to back up its claims. On the contrary the quarterly returns for the last quarter of 1997 and the first quarter of 1998 were not disputed by the Department in respect of both authenticity and veracity of the contents. It is noteworthy that both quarterly returns have enrolment figures in excess of seventy nine (79).
4.10 In the circumstances the union’s version that the school had sufficient number of learners to be graded as P2 school is accepted as probably true.
4.11 In the absence of a policy to the contrary, which I reiterate, the Respondent did not prove, the last quarterly return for 1997, supplemented by the first quarterly return for 1998, conclusively establish that the Department re-advertised the post in question as a post level one (1) post through inadvertence. The said school should have been graded as P2 school and Mr Setshedi ought to have been appointed at post level two (2) post. The Department never contended that Mr Setshedi is not qualified to be appointed at that level.
4.12 In a further document titled “Post establishment Annexure A to circular 92 of 1998" which is correspondence from the Respondent’s head office, the said school is expressly graded as a post level two (2) post. Mr Metse was at pains to explain the grading set out in this correspondence. He attributed it to the policy of upgrading post level posts after two years. The proposition does not have much substance given that provision is not made for such arrangement in the applicable regulation (PAM).
4.13 Mr Setshedi has a legitimate expectation to be appointed at a post level post warranted by the learner enrolment figures as contemplated in the Regulations
5.
DETERMINATION:
I hereby determine that:
5.1 Mr Setshedi be appointed at post level two (2) post; and
5.2 The said appointment shall be retrospective to date of his nullified appointment at post level one (1) post.
I WILLIAMS
ARBITRATOR
DATED: 1 SEPTEMBER 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES NW
APPLICANT SETSHEDI
RESPONDENT DEPARTMENT OF EDUCATION NW
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR I WILLIAMS
DATE OF ARBITRATION AUGUST 1999
VENUE TEMBA, HAMMANSKRAAL
REPRESENTATION:
APPLICANT MR RASEALA
RESPONDENT MR METSE
AWARD:
1. Mr Setshedi be appointed at post level two (2) post; and
2. The said appointment shall be retrospective to date of his nullified appointment at post level one (1) post.
DATE OF AWARD 1 SEPTEMBER 1999
Province: North West
Applicant: SETSHEDI
Respondent: DEPARTMENT OF EDUCATION NW
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 1 September 1999
Arbitrator: I WILLIAMS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: PSES
In the matter between:
SETSHEDI APPLICANT
and
DEPARTMENT OF EDUCATION RESPONDENT
(NORTH WEST PROVINCE)
________________________________________________________
ARBITRATION AWARD
_________________________________________________________
1.
HEARING AND REPRESENTATION:
The matter was set down for hearing in August 1999 at the Respondent’s premises in Temba, Hammanskraal. Mr Rasealo and Mr Metse appeared on behalf of the Applicant and Respondent respectively.
2.
ISSUE AND POWERS:
The issue herein turns on the alleged unfair labour practice in that the Applicant was promoted to post level one (1) and not post level four (4) as advertised by the Department. The matter was referred to arbitration pursuant to the constitution of Education Labour Relation Council. I am enjoyed to make an appropriate order based on the evidence before me and with due regard to equity.
3.
BACKGROUND:
The Respondent advertised the vacancy of a school Principal as a post level (4) post. Mr Setshedi applied for the said vacancy and following short-listing and interviews, was duly appointed, albeit at post level one and not as advertised. The union did not content for appointment as per the advertisement but rather prayed for post level two (2) post appointment.
4.
EVALUATION OF EVIDENCE AND ARGUMENTS:
4.1 It is common cause that post levels of Principal posts are determined in accordance with Personnel Administration Measures (PAM), this being Regulations made in terms of section 5 of the Employment of Education Act of 1998. The parties are ad idem that the post in question was advertised as post level four (4) post.
4.2 Neither party led oral evidence and only documentary evidence was adduced and the arguments were based thereon.
4.3 Mr Metse tenaciously argued that snap surveys and not quarterly returns, are the yardstick used to determine post levels of Principal posts. He further contended that there is a policy of advertising vacancy at a higher level two years following the date of the first advertisement. He contended that the snap survey dated 3 February 1999 was indicative of the fact that the school in question had seventy nine (79) registered learners and according to PAM the Principal post should have been advertised as post level one (1) post. Mr Metse averred that the document which advertised the relevant post as a post level four (4) was a draft meant for distribution to and consumption by the district office and came into Mr Setshedi’s possession through inadvertence. A proper document was issued subsequent thereto and denoted the correct post level of the said Principal post.
4.4 Mr Maseala rejected the proposition that the document on the basis of which Mr Setshedi applied for the post was a draft. He contended that the said document was distributed to the teaching fraternity as whole to solicit applications for the post and was issued from the district office. He averred that the learner enrolment figures have changed materially since the formulation oft eh snap survey dated 3 February 1997. He submitted a document professed to be the snap survey for the period 1998/1999 grading the relevant Principal post as post level two (2) post given that the number of students is reflected as ninety (90).
4.5 Mr Raseala disputed the contention that there is a policy to advertise posts at a higher level two years following the first advertisement of the post at a lower level. He further adduced quarterly statistics for the last quarter of 1997 and the first quarter of 1998, and both had learner enrolment in excess of seventy nine (79).
4.6 The applicable Regulations provide that a primary ordinary school, which Leboalangwe School is, with fewer than eighty (80) learners is graded as P1 institution and accordingly the Principal post shall be post level one (1) post. Where the school has eighty (80) to hundred and fifty nine (159) learners, the grading of the school is increased to P2 and so does the post level of the Principal post.
4.7 The document in which the Principal post was advertised as a post level four (4) post was clearly erroneous. The said school never had enrolment figures in the region of seven hundred and twenty during the period 1997 to 1998, a necessary figure to grade a school as a P4 institution with a corresponding post level of a Principal post.
4.8 The union disputed the assertion that snap surveys formulated a year prior to advertisement are decisive regarding the grading of schools. Mr Reseala said the Department used information available in the last quarter of 1997 and new quarter of 1998. He further disputed the accuracy of the enrolment figures in the snap survey. The gist of his argument was that enrolment figures increase continuously as the inception of the school term and normally decrease in mid-year due to learners dropping out. In the light of the fact that the school had eighty four learners in the last quarter of 1997, he argued, the snap survey was clearly incorrect.
4.9 The Department failed to prove that it is the policy to use snap surveys and not quarterly returns to grade schools. The Respondent failed to lead oral evidence or adduce documentary proof to back up its claims. On the contrary the quarterly returns for the last quarter of 1997 and the first quarter of 1998 were not disputed by the Department in respect of both authenticity and veracity of the contents. It is noteworthy that both quarterly returns have enrolment figures in excess of seventy nine (79).
4.10 In the circumstances the union’s version that the school had sufficient number of learners to be graded as P2 school is accepted as probably true.
4.11 In the absence of a policy to the contrary, which I reiterate, the Respondent did not prove, the last quarterly return for 1997, supplemented by the first quarterly return for 1998, conclusively establish that the Department re-advertised the post in question as a post level one (1) post through inadvertence. The said school should have been graded as P2 school and Mr Setshedi ought to have been appointed at post level two (2) post. The Department never contended that Mr Setshedi is not qualified to be appointed at that level.
4.12 In a further document titled “Post establishment Annexure A to circular 92 of 1998" which is correspondence from the Respondent’s head office, the said school is expressly graded as a post level two (2) post. Mr Metse was at pains to explain the grading set out in this correspondence. He attributed it to the policy of upgrading post level posts after two years. The proposition does not have much substance given that provision is not made for such arrangement in the applicable regulation (PAM).
4.13 Mr Setshedi has a legitimate expectation to be appointed at a post level post warranted by the learner enrolment figures as contemplated in the Regulations
5.
DETERMINATION:
I hereby determine that:
5.1 Mr Setshedi be appointed at post level two (2) post; and
5.2 The said appointment shall be retrospective to date of his nullified appointment at post level one (1) post.
I WILLIAMS
ARBITRATOR
DATED: 1 SEPTEMBER 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES NW
APPLICANT SETSHEDI
RESPONDENT DEPARTMENT OF EDUCATION NW
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR I WILLIAMS
DATE OF ARBITRATION AUGUST 1999
VENUE TEMBA, HAMMANSKRAAL
REPRESENTATION:
APPLICANT MR RASEALA
RESPONDENT MR METSE
AWARD:
1. Mr Setshedi be appointed at post level two (2) post; and
2. The said appointment shall be retrospective to date of his nullified appointment at post level one (1) post.
DATE OF AWARD 1 SEPTEMBER 1999