PSES EC
PSES EC
Award Date:
1 January 2000
Case Number: PSES EC
Province: Eastern Cape
Applicant: MISS T M SIDZATANE
Respondent: DEPARTMENT OF EDUCATION EC
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: n/a
Award Date: 1 January 2000
Arbitrator: J E BAX
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES EC
In the arbitration between:
MISS T M SIDZATANE APPLICANT
and
DEPARTMENT OF EDUCATION EC RESPONDENT
ARBITRATOR’S AWARD
1 . INTRODUCTION
.1 The Arbitration arose out of the termination of the employment of the Grievant as a temporary teacher by the effluxion of time of her employment contact as at the 31st December 1997:- The terms of reference applicable in regards to the Arbitration are set out the Arbitration Agreement and read as follows:-
.2 The parties enjoin the Arbitrator to determine whether in his opinion and based on the evidence presented at the Arbitration:
There is fair cause to make a finding that the Grievant was interviewed for the post in question (grant post);
The Grievant out-competed all other contending Grievant during the interview and as such topped the list;
The Grievant was recommended by the panel;
The Grievant would have been appointed by virtue of outcome of the other Grievants and topped the list;
The letter dated 20 June 1997 was appointing the Grievant in her grant post;
The Eastern Cape Education Department has an obligation to the Grievant / no obligation to the Grievant;
The present incumbent did not apply or did apply for the post;
The present incumbent was interviewed /or was not interviewed for the post;
The appointment of the present incumbent was procedural and regular / or unprocedural and irregular.
2 . THE EVIDENCE
.1 The Arbitrator will have the power to make an Award which he deems appropriate, which may prescribe a sanction or a remedy including appointment or re-in statement.
.2 The Department was represented by Mr C A Pillay and the Grievant by Mr ZN Zinja.
.3 The Department called Mrs Lulam Hopa, Departmental Educational Development Officer and Miss Nomhamha Virginia Mfunda, the Principal of Pendla Primary School, to give evidence, while Mr Zinja on behalf of the Grievant called the Grievant, Miss Tobela Mavis Sidzatane, and Mrs Truth Nonene Tshomela and Mr Mzukizi Theophilus Mafuya to give evidence to establish the Grievant’s claim. Both Mr CA Pillay and Mr Z N Zinja submitted argument in writing and I thank them for their assistance and cooperation in this regard.
.4 I find the facts in this matter generally to be that the Grievant approached Miss Mfunda, the Principal of Pandla Primary School for a teaching position on the recommendation of a departmental official. I make no finding as to whether or not she did in fact receive such a recommendation and at the Arbitration, the Grievant in fact denied approaching the Principal with such recommendation, but in any event this was stated by the Principal to the Staff when introducing the Grievant.
.5 The Grievant was appointed to a temporary substitution post for a teacher who was on leave, until the 31st May 1997.There were various allegation regarding the circumstances of this appointment which for the present matter are not relevant. While the Grievant was present at the School teaching in this substitution post, the School was granted a further teaching post by the Department as the intake of children has been more than with which the present staff of the School could cope. This new “grant post” was advertised, and the Grievant and one, Miss L N Konsa were interviewed by and Interviewing Committee constituted by a Head of Department as delegated by the Principal.
.6 The evidence was that only these two had applied for the post and only they were interviewed for the post. The evidence before the Arbitration revealed that the Grievant was listed as the favoured candidate for appointment to the new “grant post”. The evidence before the Arbitration however revealed that the recommendations submitted to the Department reflected a Miss P Snell, commonly referred to in the Arbitration as “Dinisa”, as the preferred candidate, with the Grievant as number 2 .
.7 There was considerable conjecture as to who completed the detail of the recommendation from and Mr Zinja, in argument, submitted that on a balance of probabilities, the principal completed the document herself. Whether or not this is so, there was no other evidence before the Arbitration as to any alternative recommended. It is apparent before the Arbitration was that the Department the appointed Miss P Snell recommended.
.8 it is apparent the Miss P Snell did not apply for the post, or at least did not do so formally and was not interviewed by the selection panel for the post. The Grievant gave evidence starting that she understood that she had been appointed to the post and was so advised by the principal on the morning after the interviews. Whether or not this is so, the recommendation to the Department was not in her favour. The Grievant continued to teach at the school for the remainder of the year. The Grievant thought that her continued teaching post was as holder of the “grant post” but it is alleged by the Department that her continued teaching was by virtue of the extension of her temporary position in that she had been appointed to the “grant post”.
.9 The extension of the Grievant temporary appointment was confirmed by the Department by letter to her dated 20th June 1997 which appointed her for the further period with retention of her present rank which would be a retention of her in the position as confirmed by the Department’s letter addressed to the Grievant on the 9th April 1997. In terms of the letter dated 20th June 1997 that appointment was extended from the 1st June 1997 to 31st December 1997. On the alleged understanding that she had been appointed to the “grant post” the Grievant returned to work in the new School year only to be informed that she had held the substitute post which had expired on the 31st December 1997 and that she was no longer employed by the State or required by the school.
3 . THE DECISION
.1 The lawful obligation of the Department to an employee arises out the employment contract concluded by the Department with a particular employee. Despite the confusion caused by the alleged communications to the Grieving, it is clear that the department had not in fact conclude a contact of employment with the Grieving in respect of the “grant post” and had done so only in respect of the substantive post and regard I refer to the return to work of temporary teachers filling substantial posts in the new year of 1998.
.2 I would be inclined to comment on the whole process of various appointments made and the process followed, but confirm that i am restricted to the to the confines of my terms of reference as set out above and I accordingly make an Award with reference to the terms of the Arbitration Agreement as follows and for ease of reference i use the same paragraph numbers as those under which the relevant questions are posed and as set out above:-
I confirm that there is fair cause to make a finding that the Grievant was interviewed for the post in question. (The grant post and defined accordingly).
That the Grievant out-competed all other contending Applicants sharing the interview and as such topped the list and I find accordingly.
In circumstances that all Applicants are required to present themselves for an interview for the a particular post, I find that the Applicant completed better than the other Applicant interview.
I find that the letter dated 20th June 1997 appointed the Grievant to the temporary substitute post and not to the substantive grant post as that letter was in response to be the request by the Principal that the Grievant for the substitute post and the letters addressed to P Snell and the Grievant for the response as submitted by the Principal.
The Eastern Cape Education Department has no obligation to the applicant other than in any process it may follow having regarded to 3.1.7 below.
From the evidence before the Arbitration it is clearly that the present incumbent was not interviewed for the post and I find accordingly.
That on the evidence before the Arbitration, as these was no evidence of the application by the present incumbent and as the present incumbent was not interviewed for the post and based on the evidence before the Arbitration on the procedural requirements, I find that the appointment of the present incumbent was unprocedural and irregular.
4 .
I accordingly confirm my Award as Arbitrator as set out above.
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES EC
APPLICANT MISS T M SIDZATANE
RESPONDENT DEPARTMENT OF EDUCATION EC
NATURE UNFAIR DISMISSAL
ARBITRATOR J E BAX
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT
RESPONDENT
AWARD:
That on the evidence before the Arbitration, as these was no evidence of the application by the present incumbent and as the present incumbent was not interviewed for the post and based on the evidence before the Arbitration on the procedural requirements, I find that the appointment of the present incumbent was unprocedural and irregular.
DATE OF AWARD
Province: Eastern Cape
Applicant: MISS T M SIDZATANE
Respondent: DEPARTMENT OF EDUCATION EC
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: n/a
Award Date: 1 January 2000
Arbitrator: J E BAX
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES EC
In the arbitration between:
MISS T M SIDZATANE APPLICANT
and
DEPARTMENT OF EDUCATION EC RESPONDENT
ARBITRATOR’S AWARD
1 . INTRODUCTION
.1 The Arbitration arose out of the termination of the employment of the Grievant as a temporary teacher by the effluxion of time of her employment contact as at the 31st December 1997:- The terms of reference applicable in regards to the Arbitration are set out the Arbitration Agreement and read as follows:-
.2 The parties enjoin the Arbitrator to determine whether in his opinion and based on the evidence presented at the Arbitration:
There is fair cause to make a finding that the Grievant was interviewed for the post in question (grant post);
The Grievant out-competed all other contending Grievant during the interview and as such topped the list;
The Grievant was recommended by the panel;
The Grievant would have been appointed by virtue of outcome of the other Grievants and topped the list;
The letter dated 20 June 1997 was appointing the Grievant in her grant post;
The Eastern Cape Education Department has an obligation to the Grievant / no obligation to the Grievant;
The present incumbent did not apply or did apply for the post;
The present incumbent was interviewed /or was not interviewed for the post;
The appointment of the present incumbent was procedural and regular / or unprocedural and irregular.
2 . THE EVIDENCE
.1 The Arbitrator will have the power to make an Award which he deems appropriate, which may prescribe a sanction or a remedy including appointment or re-in statement.
.2 The Department was represented by Mr C A Pillay and the Grievant by Mr ZN Zinja.
.3 The Department called Mrs Lulam Hopa, Departmental Educational Development Officer and Miss Nomhamha Virginia Mfunda, the Principal of Pendla Primary School, to give evidence, while Mr Zinja on behalf of the Grievant called the Grievant, Miss Tobela Mavis Sidzatane, and Mrs Truth Nonene Tshomela and Mr Mzukizi Theophilus Mafuya to give evidence to establish the Grievant’s claim. Both Mr CA Pillay and Mr Z N Zinja submitted argument in writing and I thank them for their assistance and cooperation in this regard.
.4 I find the facts in this matter generally to be that the Grievant approached Miss Mfunda, the Principal of Pandla Primary School for a teaching position on the recommendation of a departmental official. I make no finding as to whether or not she did in fact receive such a recommendation and at the Arbitration, the Grievant in fact denied approaching the Principal with such recommendation, but in any event this was stated by the Principal to the Staff when introducing the Grievant.
.5 The Grievant was appointed to a temporary substitution post for a teacher who was on leave, until the 31st May 1997.There were various allegation regarding the circumstances of this appointment which for the present matter are not relevant. While the Grievant was present at the School teaching in this substitution post, the School was granted a further teaching post by the Department as the intake of children has been more than with which the present staff of the School could cope. This new “grant post” was advertised, and the Grievant and one, Miss L N Konsa were interviewed by and Interviewing Committee constituted by a Head of Department as delegated by the Principal.
.6 The evidence was that only these two had applied for the post and only they were interviewed for the post. The evidence before the Arbitration revealed that the Grievant was listed as the favoured candidate for appointment to the new “grant post”. The evidence before the Arbitration however revealed that the recommendations submitted to the Department reflected a Miss P Snell, commonly referred to in the Arbitration as “Dinisa”, as the preferred candidate, with the Grievant as number 2 .
.7 There was considerable conjecture as to who completed the detail of the recommendation from and Mr Zinja, in argument, submitted that on a balance of probabilities, the principal completed the document herself. Whether or not this is so, there was no other evidence before the Arbitration as to any alternative recommended. It is apparent before the Arbitration was that the Department the appointed Miss P Snell recommended.
.8 it is apparent the Miss P Snell did not apply for the post, or at least did not do so formally and was not interviewed by the selection panel for the post. The Grievant gave evidence starting that she understood that she had been appointed to the post and was so advised by the principal on the morning after the interviews. Whether or not this is so, the recommendation to the Department was not in her favour. The Grievant continued to teach at the school for the remainder of the year. The Grievant thought that her continued teaching post was as holder of the “grant post” but it is alleged by the Department that her continued teaching was by virtue of the extension of her temporary position in that she had been appointed to the “grant post”.
.9 The extension of the Grievant temporary appointment was confirmed by the Department by letter to her dated 20th June 1997 which appointed her for the further period with retention of her present rank which would be a retention of her in the position as confirmed by the Department’s letter addressed to the Grievant on the 9th April 1997. In terms of the letter dated 20th June 1997 that appointment was extended from the 1st June 1997 to 31st December 1997. On the alleged understanding that she had been appointed to the “grant post” the Grievant returned to work in the new School year only to be informed that she had held the substitute post which had expired on the 31st December 1997 and that she was no longer employed by the State or required by the school.
3 . THE DECISION
.1 The lawful obligation of the Department to an employee arises out the employment contract concluded by the Department with a particular employee. Despite the confusion caused by the alleged communications to the Grieving, it is clear that the department had not in fact conclude a contact of employment with the Grieving in respect of the “grant post” and had done so only in respect of the substantive post and regard I refer to the return to work of temporary teachers filling substantial posts in the new year of 1998.
.2 I would be inclined to comment on the whole process of various appointments made and the process followed, but confirm that i am restricted to the to the confines of my terms of reference as set out above and I accordingly make an Award with reference to the terms of the Arbitration Agreement as follows and for ease of reference i use the same paragraph numbers as those under which the relevant questions are posed and as set out above:-
I confirm that there is fair cause to make a finding that the Grievant was interviewed for the post in question. (The grant post and defined accordingly).
That the Grievant out-competed all other contending Applicants sharing the interview and as such topped the list and I find accordingly.
In circumstances that all Applicants are required to present themselves for an interview for the a particular post, I find that the Applicant completed better than the other Applicant interview.
I find that the letter dated 20th June 1997 appointed the Grievant to the temporary substitute post and not to the substantive grant post as that letter was in response to be the request by the Principal that the Grievant for the substitute post and the letters addressed to P Snell and the Grievant for the response as submitted by the Principal.
The Eastern Cape Education Department has no obligation to the applicant other than in any process it may follow having regarded to 3.1.7 below.
From the evidence before the Arbitration it is clearly that the present incumbent was not interviewed for the post and I find accordingly.
That on the evidence before the Arbitration, as these was no evidence of the application by the present incumbent and as the present incumbent was not interviewed for the post and based on the evidence before the Arbitration on the procedural requirements, I find that the appointment of the present incumbent was unprocedural and irregular.
4 .
I accordingly confirm my Award as Arbitrator as set out above.
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES EC
APPLICANT MISS T M SIDZATANE
RESPONDENT DEPARTMENT OF EDUCATION EC
NATURE UNFAIR DISMISSAL
ARBITRATOR J E BAX
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT
RESPONDENT
AWARD:
That on the evidence before the Arbitration, as these was no evidence of the application by the present incumbent and as the present incumbent was not interviewed for the post and based on the evidence before the Arbitration on the procedural requirements, I find that the appointment of the present incumbent was unprocedural and irregular.
DATE OF AWARD