PSES GAAR 10091 FS
PSES GAAR 10091 FS
Award Date:
23 May 2000
Case Number: PSES GAAR 10091 FS
Province: Free State
Applicant: MRS S SCHOEMAN; A MARX; C SCHOEMAN; M DE JAGER AND S VAN DER SPUY
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 23 May 2000
Arbitrator: M JAJBHAY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 10091 FS
In the arbitration between:
MRS S SCHOEMAN; A MARX; C SCHOEMAN; M DE JAGER AND S VAN DER SPUY (represented by SUID-AFRIKAANSE ONDERWYSERS UNIE) APPLICANT
and
DEPARTMENT OF EDUCATION FREE STATE RESPONDENT
ARBITRATION AWARD
1. In terms of pre-arbitration agreement, entered into orally, and subsequently confirmed on the record, the representatives of the parties hereto agree as follows:
- The bundle of documents submitted by the Union, are for the purposes of evidence what they purport to be. Unless specifically denied, I was able to utilise the information reflected in the documents, for the purpose of evidence.
- The parties would lead any oral evidence that they would deem necessary in order to fortify their respective positions.
- In terms of Annexure “B” to the arbitration agreement circulated by the Education Labour Relations Council Resolution 7 of 1997, the arbitrator’s terms of reference which are applicable to the present matter are recorded as follows:
“The terms of reference of the arbitrator shall be to arbitrate any dispute referred to him, and to award a remedy which he considers fair and/or appropriate in order to settle the dispute.”
2. In terms of the documents submitted to me, I understood my terms of reference and findings to be as follows (I quote directly from the documents):
- Mrs S Schoeman:
“Permanent appointment and remuneration as such from 1 July 1999.”
- Mrs A Marx:
“[a] Confirmation of temporary appointment from 1 April 1999 up to 30 June 1999 and remuneration as such.
[b] Permanent appointment and remuneration as such from 1 July 1999.”
- Mrs C Schoeman:
“Confirmation of temporary appointment from
[a] 25 January 1999 until 31 March 1999;
[b] 1 April 1999 until 30 June 1999;
[c] 1 July 1999 until 31 December 1999;
[d] 1 January 2000 until the post is filled by a redeployed educator in accordance with the stipulations of Resolution 6/1998, and payment as such, less R 16 908,00 paid by the Department during June 1999.”
- Mrs M De Jager:
“Confirmation of temporary appointment and remuneration as such for the period 1 October 1998 until 31 December 1998.”
- Mrs S Van der Spuy:
“Confirmation of temporary appointment and remuneration as such for the period 10 May 1999 until 29 October 1999.”
3 . The facts for each of the above individuals can be described as follows.
Mrs S Schoeman
1. Despite several requests by the Union, the latter had not received any response with regard to Mrs S Schoeman’s appointment at the Vaalpark High School. Mrs S Schoeman occupied the post since April 1999. The post was advertised in the Closed Vacancy List which was issued in May 1999 for appointment 1 July 1999. The Department had attended to matching according to a Management Plan, however no suitable candidate was identified to be placed on the A list.
2. On 21 June 1999 the principal at the Vaalpark High School requested the District Office to supply him with the B List. Thereafter the School Governing Body considered the candidates on the B list, and recommended Mrs S Schoeman for appointment.
3. During or about 20 July 1999, the school requested the Department to extend Mrs S Schoeman’s temporary appointment from 1 July 1999 until her permanent appointment. Towards the end of July, the School Governing Body was informed that the nomination of a B candidate has been referred to the Head Office since three educators in excess in the Sasolburg district have been identified with the relevant profiles. According to the Principal of this school, as well as Mrs S Schoeman, it was at all times thought that in terms of the Department’s Management Plan for Closed Vacancy List No. 2/1999, read together with the procedures stipulated in Resolution 6/1998, Mrs S Schoeman could reasonably assume that she would be appointed for the relevant post.
4. In terms of a letter dated 1 October 1999, from the Director: Human Resources, the recommendation of the School Governing Body had not been accepted because the School Governing Body was requested to consider educators from the excess list as was provided by the District Manager’s office. In evidence, Mrs Schoeman informed me that she was paid for the outstanding period, and that she had a fixed term contract which would terminate at the end of June 2000.
5 . Mrs A Marx
1. In this particular matter, Mrs Marx stated that she applied for a post at Tweespruit Primary School. The post was advertised in the Closed Vacancy List (2/1999). The school had received the A list from the District Office. During or about 20 July 199, the District Manager was informed that one of the candidates was accepted at a post at another school and that the other candidate did not qualify for the post.
2. Thereafter, the Governing Body of the school applied for the B list to be submitted to them. No response was received. During August 1999 the Governing Body repeated their request for the B list to the District Office. Apparently no response was received either. Then on 9 November 1999 the Governing Body requested the Department to appoint Mrs Marx from the B list with effect from 1 July 1999 in a permanent capacity. According to the Principal no response was received on this request.
3. Mrs Marx was occupying this particular position since April 1999. Her position was not confirmed by the Department.
6 .
Mrs C Schoeman
1. The individual was employed in a temporary capacity at the Onze Rust Primary School. As a result of a teacher, i.e. Mrs Honiball becoming ill, Mrs C Schoeman acted as a relief for her duties. From time to time, applications were made for the extension of Mrs C Schoeman’s contract, however, according to the Principal there was no response from the from the Department. Mrs C Schoeman apparently received payment in the sum of three months salary from the Provincial Administration Free State.
2. She did not receive a written contract, and there were no terms and conditions agreed upon between her and the Department.
7 . Mrs M De Jager and Mrs S Van der Spuy
1. In both of the above instances the facts are almost identical and can be summarised as follows. The Governing Body at the Harrismith High School, appointed the above teachers in certain capacities in order to provide the services of a teacher at the Harrismith School. The District Office advertised the post and the above educators were nominated. There was no response that was received from the District Office or the Head Office. It was alleged that the Governing Body had a reasonable expectation that these appointments would be approved in terms of the relevant legislation.
2. It was alleged on behalf of Mrs De Jager that she had rendered services as a temporary teacher for the period of between 12 October 1998 and 31 December 1999 and she did not in fact receive a salary. As far as Mrs Van der Spuy was concerned, the allegation was that for the period that she was rendering a service, i.e. 10 May 1999 until 29 October 1999, she did not receive any salary.
3. According to the Principal at this school, he believed that there was a reasonable expectation that Mrs Van der Spuy would be appointed by the Department. This was not so. The individuals were paid by the School Governing Body on the expectation that once they would be permanently appointed, the School Governing Body would be refunded.
8 . In all of the above circumstances, the following facts are common and need to be set out here:
1. The positions were recommended by the School Governing Body, and probably in the best interests of the school, were not ratified or adopted by the Head of the Department in compliance with the legislation;
2. The Principals acting as such, had in some instances directly, and in other instances indirectly, informed the educators that the ratification process is mere formality;
3. At all material times, none of the educators referred to herein, received any written communication from the Head of the Department, informing them that their positions were in fact intact. (Mrs S Schoeman was informed at a later stage);
4. There were no appointment letters save for Mrs S Schoeman;
5. The circulars that I will refer to hereinafter, were in most instances circulated to the relevant parties;
6. In all instances, it was specifically testified that the Head of Department makes the final appointment;
7. There was no written contract between the employer, i.e. the Department of Education Free State and the respective employees.
9 . In terms of the National Education Policy Act 27 of 1996
“The policy contemplated in section 3 shall be directed toward -
[a] the advancement and protection of the fundamental rights of every person guaranteed in terms of Chapter 2 of the Constitution, and in terms of international conventions ratified by Parliament ...”
10 . The procedure for the rationalisation and redeployment of educators in the in the providing of educators posts was captured in an agreement between the protagonists in resolution 6/1998. The principals governing the procedure makes provision for the fact that all educators who were affected by the rationalisation and redeployment process would be treated fairly. The allocation of educators posts to institutions in terms of the process must take into account the regulations determined by the Minister, after consultations in the ELRC. A provisional task team (PTT) was established for each provincial education department. The PTT had to perform the following functions :
“4.2.1 Monitoring the co-ordination and implementation of the rationalisation and redeployment process in a provincial education department.
4.2.4 Resolving disputes between the parties that may arise and which relate to the general application of this agreement and the model for post provisioning, (ie. Implementation of the rationalisation and redeployment process).”
11 . In terms of the Employment for Educators Act 76 of 1998, the appointment of any person or the promotion or transfer of any educator in the service of a provincial Department of Education shall be made by the Head of Department. The Head of Department may only decline the recommendation of the governing body of the public school or the Council for Further Education and Training Institution under circumstances set out in Section 6(3)(b) of the Employment of Educators Act 1998.
12 . In terms of the South African Schools Act 84 of 1996, the governing body of a public school must recommend to the Head of Department the appointment of educators at the school.
13 . In terms of the Human Resources Circular No. 1/1998, that was distributed persons including inter alia principals of public schools, which circular specifically stated that the information had to be brought to the attention of all personnel concerned,
“No post may be filled without the prior approval by the Head: Education. Requests for the filling of each post must be submitted via the relevant District Office ...”
14 . The Human Resources Circular No. 29/1999 communicated inter alia to principals of all schools, which specifically stated that the information contained in the circular, be brought to the attention of all personnel concerned stated :
“1. The appointment at schools, without prior approval from Head Office, is a major problem that the Department is faced with at this stage. This practice cannot be allowed. Appointments are still being made by the SMD’s and Principals without obtaining prior approval from Head Office. A decision was taken that should any person/institution effect an appointment without written approval in advance, s/he will be held responsible for the salaries of such appointments ...
2. It should also be highlighted, that no appointment at all will be made at institutions without the prove (sic) of prior approval and letter of appointment. Should any vacancy occur, a request to fill the post should be submitted to Human Resources within 7 working days after the post became vacant.”
2 . In terms of a memorandum circulated to Chief Directors, Directors and District Managers,
“No appointment will be made without prior written approval by myself (Head Education) with immediate effect.”
This was circulated on 10 June 1999.
3 . At the commencement of the proceedings Mr Tleru acting on behalf of the Department indicated that he was raising a point in limine in that this particular matter in its general principal was attended to by a fellow arbitrator in an arbitration award and the issue with regards to the arrear salaries has been dealt with already. This matter has been taken on review, and as such this particular forum does not have the jurisdiction to entertain this matter. As I understood the argument, Mr Tleru was of the opinion that this matter was res judicata. After entertaining oral argument from both sides, I determined that for reasons that I will supply in the course of this arbitration award, the application was dismissed. These are my reasons. This forum does not have the jurisdiction to entertain the particular concerns of the individuals. The order of the arbitrator in the previous matter was with particular reference to the facts before him. They were neither final nor definitive with regards to the merits of the present matter. The fact that the arbitration order is a subject-matter before the Labour Court in the form of a review does not impact on the consequences in relation to the present Applicants. Neither the cause of action nor the parties in the matter determined in the previous arbitration when compared to the present arbitration are the same in all material respects.
See : African Farms and Townships Limited v Cape Town Municipality 1963 (2) SA 555 (A) at 564;
Le Roux v Le Roux 1967 (1) SA 446 (A) at 463;
Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) at 551.
4 . The decision to be determined by me in the present matter, has not been either legitimately or rationally pronounced by any tribunal. The fact that a matter concerning the salaries of certain individuals may be before the Labour Courts in the form of a review, does not prohibit me from continuing with the present matter. In the light of these circumstances, I dismissed Mr Tleru’s application.
5 . In terms of the procedure for rationalisation and redeployment of educators as regulated in Resolution 6/1998, read together with the Employment of Educators Act No. 76 of 1998, it is clear that there is a decisive break from the past, which was unacceptable in the education sector. It constitutes a decisive break from a culture of separate education and racism to a system that protects a culture of openness and democracy and universal human rights for South African learners/educators of all ages, classes and colours.
6 . There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the education of learners is premised. The past was pervaded by inequality, authoritarianism, and unequal education. The aspiration of the future of education in our country is based on what is tabulated in Section 29 of the Constitution of the Republic of South Africa Act 108 of 1996.
7 . The objective for the procedure for rationalisation and redeployment of educators is set out as follows :
“These procedures provide for the rationalisation and redeployment of educators within educational institutions to achieve equity in educators staff provisioning in the said institutions in terms of approved policy on educator post provisioning.”
8 . The objectives are spelt out in what is commonly known as the Morkel Model. In terms of this document,
“These inequities are based on historical imbalances and pertain to certain learning areas that are mainly offered in advantaged schools in certain communities and also in respect of the provision of facilities required by some of these learning areas. These inequities should therefore be addressed separately by heads of education departments.” (Emphasis added).
9 . Mr Delport acting on behalf of the Union and its members, invited me to interpret the Acts as well as the regulations in a purposive manner. As I understood his argument, he submitted that in acting in the manner in which it did, the Governing Body of the respective schools were not at fault. The Governing Bodies made their recommendations, and as a result of the recalcitrant attitude of the Department, these nominations were not confirmed. The Employment of Educators Act of 1998 in my view, contains in material respects a new fundamental commitment to human rights with regards to learners/educators and is not merely a contemporisation and incremental articulation of previously accepted and entrenched values shared in our society. When viewed in their contextual setting, the provisions of the Employment of Educators Act 1998 afford the Head of the Department of Education support for the basic premise that the touch stone in the procedure to be adopted is a fair one in the appointment of an educator. The underlying enquiry envisaged is that the Head of Department has to confirm that there has been no irregularity or illegality and that there is no departure from the formalities, rules and principals of procedure according to which the Employment of Educators Act 1998 is set out.
10 . It is precisely this act to be determined by the Head of Education which expressly guarantees to every applicant a fair opportunity. If such a fair opportunity is denied to a applicant, then it can be found to be an unfair process ensuing in the setting aside of the recommendation. Coming to terms with the past inequalities in our educational system is a difficult and, for some, painful matter. We must close the book on the past, but before we begin to do it, we must not suppress it. A new democratic order cannot be based on the continuation of unrepresentative institutions which, by their very nature, lack impartiality and representivity and cannot continue as our common patrimony.
11 . A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principals of tolerance and impartiality so that all persons within the school environment feel equally free to participate. The Head of Department for the province, by his or her conduct, must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. In acting in this fashion in order to meet these values, it is of utmost importance that the Head of Department ensures an equitable representation of educators at a particular school. If in the opinion of the Head of Department the demographics and needs of the school have not been adequately considered by the Governing Body, then in those circumstances, the recommendation is not merely a rubber stamp effect. The Employment of Educators Act 1998 sets out in Section 6(3)(b) the instances when the Head of Department may decline the recommendation of the Governing Body. In this particular matter, the evidence was that the Head of Department did not communicate his reasons for not adopting the recommendation of the Governing Body, and as I understood the argument, this was in fact fatal. This argument in my view cannot hold water. The documentary evidence in the form of correspondence between the Union and the Department shows that certain persons not belonging to the racial group of the particular school were put forward by the Department. The Governing Body were not satisfied with these names. In some instances the individuals were not prepared to be transferred. In these circumstances, and in my view, in order to have a properly represented education body, the Governing Body should have reviewed their decisions and made the appropriate recommendations to the Head of Department.
12 . In terms of the procedure for rationalisation and redeployment of educators in provisioning of educators posts, a dispute resolution section has been set out. In terms of this section, any dispute concerning the general interpretation or applications of the procedures, shall be discussed in the relevant PTT, if it concerns only a province. The evidence of Mrs Strydom indicated that whilst a casual discussion was entertained, this matter was not conscientiously dealt with as provided for.
13 . Mr Delport referred me to several decided cases (in his supplementary Heads of Argument, for which I am grateful). The first case was Douglas Hoërskool en ‘n Ander v Premier, Noord Kaap, en Andere 1999 (4) SALR 1131 NC. In that case, a vacancy arose at a school. The post was advertised and the Head of Department thereupon forwarded the names of a number of candidates to the Governing Body of the school. To the knowledge of the Head of Department, however, only one of those candidates, complied with the minimum requirements and conditions for the post advertised. The Interview Committee of the Second Applicant conducted no interviews with the unsuitable candidates and the Second Applicant forwarded only one individual’s name to the Head of Department for appointment in the vacant post. However because the Head of Department wanted to appoint another person - who had not applied therefor - to the post, he neglected to appoint in and continued with his attempts to persuade the other person to accept the position. In this case, it was held that none of the candidates besides N, complied with the minimum requirements and conditions for the post as advertised, there was no obligation on the Interview Committee to consider the applications of the persons who did not comply with the requirements for the advertisement or to place their names on the shortlist.
14 . It is trite that each case must be determined on its own facts. The aims and objects of the legislative acts as well as the promulgations read together with the regulations is primarily to enable the Head of the Department to exercise a discretion properly when the Head of Department has to decide whether to decline a recommendation of a Governing Body. In Douglas’ matter supra, the Head of Department had known that apart from N, the candidates did not have the necessary experience and he did not allege that despite their deficient qualifications, they had enough experience to fill the post. Therefore, even if three names had in fact appeared on the shortlist, the Head of Department would have been obliged to appoint N. The object of the specific provisions would then have been achieved. In the present matter, the facts are somewhat different. In all of the instances referred to, the Principals of the respective schools had given the individual Applicants an undertaking that their appointment for the posts applied for, was a mere formality. In my view, this is not what the Act envisages. I am not satisfied, in the light of evidence that is before me, that a reasonable opportunity had been afforded to all prospective applicants for the respective posts in the present matter. For all intents and purposes, it appeared that the applicant for the post was already given the assurance that she would be the successful candidate, this does not accord with the spirit of the appointment process.
15 . The comments of Van Winsen JA in the matter of Maharaj and Others v Rampersad 1964 (4) SA 638 (A) at 646 are apposite.
“In deciding whether there has been a compliance with the injunction the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance.”
I have dealt with the object to be achieved in the Educational Sector for the appointment of educators in great details throughout this arbitration award.
16 . Mr Delport further drew my attention to the provisions of Section 195 of the Constitution of the Republic of South Africa. This section provides for basic values and principals governing public administration and it further sets out those principles and democratic values in accordance with which public administration must be governed. One of the principles enshrined in Section 195 of the Constitution is that the “... efficient, economic and effective use of resources must be promoted”. In the present matter, there was no factual evidence before me to indicate that the Head of Department did not contemplate acting within the spirit of Section 195 of the Constitution. The fact that the Department may have been recalcitrant, does not automatically mean that it was inefficient, and that it was not utilising its resources in an economic or effective manner.
17 . The Union and its members further failed to show with any credible evidence, that when making recommendations to the Head of Department, the Governing Body had regard to “the democratic values and principles referred to in section 7(1) of the South African School Act. This is a crucial factor that the Governing Body must take into account when making the recommendation. In terms of Section 6(3)(b) the Head of Department may decline the recommendation of the Governing Body if the recommendation of the said Governing Body or Council, as the case may be, did not have regard to the democratic values and principles referred to in section 7(1).”
18 . Mr Delport further referred me to the case of High School Carnarvon and Others v The Member of the Executive Council for Education, Training, Arts and Culture of the Northern Cape Provincial Government (Unreported decision , case number 850/99, date 27 September 1999) in the High Court of South Africa NCD. In this matter, there was a proposed amalgamation of certain schools. On 12 April 1999, the Governing Body received a letter from the Head of Department which stated :
“Die Departement is nie bereid om op hierdie stadium die verkante betrekking soos geadverteer in die Januarie Gazette te vul nie, aangesien die voorgestelde amalgamasieproses van skole te Carnarvon nog nie afgehandel is nie.”
The Governing Body instituted review proceedings against the Department, claiming that an individual be placed in a position as a principal. The learned Judge stated that :
“No factual evidence whatsoever was placed before me to show that the appointment of Mr Prince will frustrate the promotion of efficient, economic and effective use of resources.”
In this matter, the Head of Department had taken into consideration circumstances which the Head was not allowed to in terms of the statute, and he accordingly acted ultra vires his powers. The facts in the present matter are clearly distinguishable. There was no evidence before me in the present matter to indicate in any manner, that the Head of Department was extending his powers to sit in judgement on the recommendation of the Governing Body. From the documents which was submitted to me, and admitted as evidence, I am satisfied that the Head of Department was not concerned with the merits of the recommendation, he was concerned with whether or not it met with the requirements of Section 6(3)(b) of the Act. The Head of Department did not at any time attempt to substitute his decision or recommendation when compared to that of the school Governing Body’s.
19 . The decision of the Head of Department should be treated with deference by any person applying his or her mind to these decisions. The reasons are manifold. Firstly Parliament in the Employment of Educators Act in affording the Head of Department the ultimate decision making power, has by the privative clause indicated that the decision of the Head of Department is to be final. Secondly, recognition must be given to the fact that the Head of Department is an expert in the educational field, and understands the intrinsic needs of the particular school. He is aware of the intricacy of the education needs at a particular school, and the delicate balance that must be preserved between applicants for a position and the needs of a particular school in relation to the constitutional provisions. Each time that the Head of Department’s decision is interfered with, by a tribunal such as the present one, then confidence is lost not only by parties which must appear before the arbitration, but also by the community at large.
20 . None of this is to say that the Department must act in a recalcitrant fashion. The Resolution No. 6 of 1998 was the product of compromise and consensus amongst the social partners. In my view, there are compelling reasons why the Head of Department has the final say in the appointment of an educator. The Head of Education through the circulars that I have referred to hereinbefore has on several occasions brought to the attention of the principals that the practice of appointments at schools without prior approval from Head Office is not allowed. The Head of Department is the best person who is placed in and aware of the intricacy of the appointment of educators. This individual is guided by the recommendations of the Governing Body.
21 . In this matter the fault of the Head of Department or his or her office, was that they did not act in an expeditious or efficient manner in communicating with the schools. This by itself should not allow the applicants to enjoy the benefit of a permanent position as was requested by Mr Delport. There are also good policy reasons that allow the Head of Department the discretion to ratify or reject the recommendation of the Governing Body.
22 . The fact that the Governing Body as well as the school principals were frustrated by the lack of communication is not enough to legally justify their unilateral appointment in violation of the Acts that I have referred to as well as the regulations and circulars, in employing the teachers as they did. The school Governing Body, or the Union, could have asked that the PTT be convened, and the dispute be resolved at that forum. This they did not do.
23 . In order to determine whether the Head of Department acted substantially in terms of his duties as determined in the Employment of Educators Act of 1998, the enquiry involves a determination as to whether the Head of Department contravened any right that was guaranteed to an individual. The onus of proving that the Head of Department violated this right rests on the party seeking to do so. In the present case, there has been no evidence to show that the Head of Department violated the rights of any of the teachers referred to herein. In fact the evidence was to the contrary. All the educators as well as the principals agreed under cross-examination that the final appointment is made by the Head of Department and this cannot be deviated in any way whatsoever. That the Department did not communicate in an expeditious fashion, is not decisive with regard to the ultimate decision.
24 . Mr Delport referred me to an arbitration award in the matter between Northern Cape Education Department and Suid-Afrikaanse Onderwysunie, case number CAR175. In that matter, the Union had contended that the failure of the Department to pay certain educators for the services that they rendered constituted an unfair labour practice. The department had contended that in terms of its regulations, it did not approve the appointment of the educators and therefore was not liable for the payment of the salaries of the educators for the period they rendered their services. The arbitrator in that matter, recognised that :
“In terms of resolution 3/1996, Annexure A article 2(3), (4), (8) provision is made for VSP-educators to fill key posts for a periods of 18 - months or 1 year. In this regard, at some schools the right-sizing committees at the schools recommended that VSPs to educators in key posts not to be granted. However, these recommendations were ignored by the Department.”
25 . The Departmental policy in that case, was not in favour of reappointing VSP educators. This was set out in a letter from the Chief Director Education and Personnel Management. The arbitrator went on to state that :
“If the Department had responded to the nominations in a reasonable time and the governing bodies continued to appoint the educators concerned, the its argument that the policy was ignored would be valid. It is not enough to assert that policies and procedures are in place, they must be implemented. In this case, the applicants should have been specifically turned down within a reasonable time.”
26 . The arbitrator went on and ordered the Department to pay the outstanding salaries to the educators. I am alive to the fact that substance should not always be sacrificed to form, and in special circumstances greater good may be achieved by overlooking technical defects. However the defect in the application and implementation of the circulars and regulations specifically agreed upon, cannot be described as technical. In each case, one must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act. I am unable to agree with the learned arbitrator in the case referred to, in that I believe that injustice could result in the non-compliance with the regulation and statutory act.
27 . In the matter of Suid-Afrikaanse Onderwysunie v Gauteng Department of Education case number GAAR10094 I said the following :
“In deciding whether there has been compliance with the South African Schools Act read together with the regulations and circular, the object sought to be achieved by the aforesaid Act and regulations and the question of whether this object has been achieved are of importance. In matters such as the present one, it is important that the regulations and circulars are adhered to by those implementing the procedural decisions. If this were not to be the case, then I fear that it could open up the doors of abuse in the appointment of persons to particular posts. This could be to the detriment of the Department of Education as a whole. There are also very good reasons for distributing circulars from time to time which literally spells out in minute detail the procedure that has to be adopted in the exercise of the duties by the governing bodies as well as other bodies acting in terms of the relevant legislation. A non _ compliance with the provisions of these legislations, read together with the regulations as well as the circulars issued from time to time, in my views result in a nullity. The statutory provisions, as well as the regulations attached to these provisions, are in truth binding legal rules. They cannot be implemented in a haphazard fashion at the whim or fancy of a particular governing body. If this was to be allowed to be interpreted at the whim or fancy of a particular governing body at a particular school, then in my view disputes would be fester and subsequently spread infection of discontentment. It is trite that disputes in the field of industrial relations are particularly sensitive. The disputes must be resolved quickly, finally and with certainty, or else they can lead to frustration, hostility and even violence.”
28 . I believe these sentiments to be apposed in the present matter.
29 . The evidence in the present matter is abundantly clear that neither the Governing Body nor the principals were entitled to make the representations that they did to the individual educators referred to herein. The relevant legislation that I have referred to read together with the regulations and circulars prohibit the Principals and Governing Bodies to act in the fashion that they did.
30 . In all of the above circumstances, the application by SAOU on behalf of its members are dismissed.
DATED at JOHANNESBURG on 23 May 2000.
______________________
ARBITRATOR
M JAJBHAY
MJ0047
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES GAAR 10091 FS
APPLICANT MRS S SCHOEMAN; A MARX; C SCHOEMAN; M DE JAGER AND S VAN DER SPUY
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR M JAJBHAY
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT SADTU
RESPONDENT
AWARD:
1 In all of the above circumstances, the application by SAOU on behalf of its members are dismissed.
DATE OF AWARD 23 MAY 2000
Province: Free State
Applicant: MRS S SCHOEMAN; A MARX; C SCHOEMAN; M DE JAGER AND S VAN DER SPUY
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 23 May 2000
Arbitrator: M JAJBHAY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 10091 FS
In the arbitration between:
MRS S SCHOEMAN; A MARX; C SCHOEMAN; M DE JAGER AND S VAN DER SPUY (represented by SUID-AFRIKAANSE ONDERWYSERS UNIE) APPLICANT
and
DEPARTMENT OF EDUCATION FREE STATE RESPONDENT
ARBITRATION AWARD
1. In terms of pre-arbitration agreement, entered into orally, and subsequently confirmed on the record, the representatives of the parties hereto agree as follows:
- The bundle of documents submitted by the Union, are for the purposes of evidence what they purport to be. Unless specifically denied, I was able to utilise the information reflected in the documents, for the purpose of evidence.
- The parties would lead any oral evidence that they would deem necessary in order to fortify their respective positions.
- In terms of Annexure “B” to the arbitration agreement circulated by the Education Labour Relations Council Resolution 7 of 1997, the arbitrator’s terms of reference which are applicable to the present matter are recorded as follows:
“The terms of reference of the arbitrator shall be to arbitrate any dispute referred to him, and to award a remedy which he considers fair and/or appropriate in order to settle the dispute.”
2. In terms of the documents submitted to me, I understood my terms of reference and findings to be as follows (I quote directly from the documents):
- Mrs S Schoeman:
“Permanent appointment and remuneration as such from 1 July 1999.”
- Mrs A Marx:
“[a] Confirmation of temporary appointment from 1 April 1999 up to 30 June 1999 and remuneration as such.
[b] Permanent appointment and remuneration as such from 1 July 1999.”
- Mrs C Schoeman:
“Confirmation of temporary appointment from
[a] 25 January 1999 until 31 March 1999;
[b] 1 April 1999 until 30 June 1999;
[c] 1 July 1999 until 31 December 1999;
[d] 1 January 2000 until the post is filled by a redeployed educator in accordance with the stipulations of Resolution 6/1998, and payment as such, less R 16 908,00 paid by the Department during June 1999.”
- Mrs M De Jager:
“Confirmation of temporary appointment and remuneration as such for the period 1 October 1998 until 31 December 1998.”
- Mrs S Van der Spuy:
“Confirmation of temporary appointment and remuneration as such for the period 10 May 1999 until 29 October 1999.”
3 . The facts for each of the above individuals can be described as follows.
Mrs S Schoeman
1. Despite several requests by the Union, the latter had not received any response with regard to Mrs S Schoeman’s appointment at the Vaalpark High School. Mrs S Schoeman occupied the post since April 1999. The post was advertised in the Closed Vacancy List which was issued in May 1999 for appointment 1 July 1999. The Department had attended to matching according to a Management Plan, however no suitable candidate was identified to be placed on the A list.
2. On 21 June 1999 the principal at the Vaalpark High School requested the District Office to supply him with the B List. Thereafter the School Governing Body considered the candidates on the B list, and recommended Mrs S Schoeman for appointment.
3. During or about 20 July 1999, the school requested the Department to extend Mrs S Schoeman’s temporary appointment from 1 July 1999 until her permanent appointment. Towards the end of July, the School Governing Body was informed that the nomination of a B candidate has been referred to the Head Office since three educators in excess in the Sasolburg district have been identified with the relevant profiles. According to the Principal of this school, as well as Mrs S Schoeman, it was at all times thought that in terms of the Department’s Management Plan for Closed Vacancy List No. 2/1999, read together with the procedures stipulated in Resolution 6/1998, Mrs S Schoeman could reasonably assume that she would be appointed for the relevant post.
4. In terms of a letter dated 1 October 1999, from the Director: Human Resources, the recommendation of the School Governing Body had not been accepted because the School Governing Body was requested to consider educators from the excess list as was provided by the District Manager’s office. In evidence, Mrs Schoeman informed me that she was paid for the outstanding period, and that she had a fixed term contract which would terminate at the end of June 2000.
5 . Mrs A Marx
1. In this particular matter, Mrs Marx stated that she applied for a post at Tweespruit Primary School. The post was advertised in the Closed Vacancy List (2/1999). The school had received the A list from the District Office. During or about 20 July 199, the District Manager was informed that one of the candidates was accepted at a post at another school and that the other candidate did not qualify for the post.
2. Thereafter, the Governing Body of the school applied for the B list to be submitted to them. No response was received. During August 1999 the Governing Body repeated their request for the B list to the District Office. Apparently no response was received either. Then on 9 November 1999 the Governing Body requested the Department to appoint Mrs Marx from the B list with effect from 1 July 1999 in a permanent capacity. According to the Principal no response was received on this request.
3. Mrs Marx was occupying this particular position since April 1999. Her position was not confirmed by the Department.
6 .
Mrs C Schoeman
1. The individual was employed in a temporary capacity at the Onze Rust Primary School. As a result of a teacher, i.e. Mrs Honiball becoming ill, Mrs C Schoeman acted as a relief for her duties. From time to time, applications were made for the extension of Mrs C Schoeman’s contract, however, according to the Principal there was no response from the from the Department. Mrs C Schoeman apparently received payment in the sum of three months salary from the Provincial Administration Free State.
2. She did not receive a written contract, and there were no terms and conditions agreed upon between her and the Department.
7 . Mrs M De Jager and Mrs S Van der Spuy
1. In both of the above instances the facts are almost identical and can be summarised as follows. The Governing Body at the Harrismith High School, appointed the above teachers in certain capacities in order to provide the services of a teacher at the Harrismith School. The District Office advertised the post and the above educators were nominated. There was no response that was received from the District Office or the Head Office. It was alleged that the Governing Body had a reasonable expectation that these appointments would be approved in terms of the relevant legislation.
2. It was alleged on behalf of Mrs De Jager that she had rendered services as a temporary teacher for the period of between 12 October 1998 and 31 December 1999 and she did not in fact receive a salary. As far as Mrs Van der Spuy was concerned, the allegation was that for the period that she was rendering a service, i.e. 10 May 1999 until 29 October 1999, she did not receive any salary.
3. According to the Principal at this school, he believed that there was a reasonable expectation that Mrs Van der Spuy would be appointed by the Department. This was not so. The individuals were paid by the School Governing Body on the expectation that once they would be permanently appointed, the School Governing Body would be refunded.
8 . In all of the above circumstances, the following facts are common and need to be set out here:
1. The positions were recommended by the School Governing Body, and probably in the best interests of the school, were not ratified or adopted by the Head of the Department in compliance with the legislation;
2. The Principals acting as such, had in some instances directly, and in other instances indirectly, informed the educators that the ratification process is mere formality;
3. At all material times, none of the educators referred to herein, received any written communication from the Head of the Department, informing them that their positions were in fact intact. (Mrs S Schoeman was informed at a later stage);
4. There were no appointment letters save for Mrs S Schoeman;
5. The circulars that I will refer to hereinafter, were in most instances circulated to the relevant parties;
6. In all instances, it was specifically testified that the Head of Department makes the final appointment;
7. There was no written contract between the employer, i.e. the Department of Education Free State and the respective employees.
9 . In terms of the National Education Policy Act 27 of 1996
“The policy contemplated in section 3 shall be directed toward -
[a] the advancement and protection of the fundamental rights of every person guaranteed in terms of Chapter 2 of the Constitution, and in terms of international conventions ratified by Parliament ...”
10 . The procedure for the rationalisation and redeployment of educators in the in the providing of educators posts was captured in an agreement between the protagonists in resolution 6/1998. The principals governing the procedure makes provision for the fact that all educators who were affected by the rationalisation and redeployment process would be treated fairly. The allocation of educators posts to institutions in terms of the process must take into account the regulations determined by the Minister, after consultations in the ELRC. A provisional task team (PTT) was established for each provincial education department. The PTT had to perform the following functions :
“4.2.1 Monitoring the co-ordination and implementation of the rationalisation and redeployment process in a provincial education department.
4.2.4 Resolving disputes between the parties that may arise and which relate to the general application of this agreement and the model for post provisioning, (ie. Implementation of the rationalisation and redeployment process).”
11 . In terms of the Employment for Educators Act 76 of 1998, the appointment of any person or the promotion or transfer of any educator in the service of a provincial Department of Education shall be made by the Head of Department. The Head of Department may only decline the recommendation of the governing body of the public school or the Council for Further Education and Training Institution under circumstances set out in Section 6(3)(b) of the Employment of Educators Act 1998.
12 . In terms of the South African Schools Act 84 of 1996, the governing body of a public school must recommend to the Head of Department the appointment of educators at the school.
13 . In terms of the Human Resources Circular No. 1/1998, that was distributed persons including inter alia principals of public schools, which circular specifically stated that the information had to be brought to the attention of all personnel concerned,
“No post may be filled without the prior approval by the Head: Education. Requests for the filling of each post must be submitted via the relevant District Office ...”
14 . The Human Resources Circular No. 29/1999 communicated inter alia to principals of all schools, which specifically stated that the information contained in the circular, be brought to the attention of all personnel concerned stated :
“1. The appointment at schools, without prior approval from Head Office, is a major problem that the Department is faced with at this stage. This practice cannot be allowed. Appointments are still being made by the SMD’s and Principals without obtaining prior approval from Head Office. A decision was taken that should any person/institution effect an appointment without written approval in advance, s/he will be held responsible for the salaries of such appointments ...
2. It should also be highlighted, that no appointment at all will be made at institutions without the prove (sic) of prior approval and letter of appointment. Should any vacancy occur, a request to fill the post should be submitted to Human Resources within 7 working days after the post became vacant.”
2 . In terms of a memorandum circulated to Chief Directors, Directors and District Managers,
“No appointment will be made without prior written approval by myself (Head Education) with immediate effect.”
This was circulated on 10 June 1999.
3 . At the commencement of the proceedings Mr Tleru acting on behalf of the Department indicated that he was raising a point in limine in that this particular matter in its general principal was attended to by a fellow arbitrator in an arbitration award and the issue with regards to the arrear salaries has been dealt with already. This matter has been taken on review, and as such this particular forum does not have the jurisdiction to entertain this matter. As I understood the argument, Mr Tleru was of the opinion that this matter was res judicata. After entertaining oral argument from both sides, I determined that for reasons that I will supply in the course of this arbitration award, the application was dismissed. These are my reasons. This forum does not have the jurisdiction to entertain the particular concerns of the individuals. The order of the arbitrator in the previous matter was with particular reference to the facts before him. They were neither final nor definitive with regards to the merits of the present matter. The fact that the arbitration order is a subject-matter before the Labour Court in the form of a review does not impact on the consequences in relation to the present Applicants. Neither the cause of action nor the parties in the matter determined in the previous arbitration when compared to the present arbitration are the same in all material respects.
See : African Farms and Townships Limited v Cape Town Municipality 1963 (2) SA 555 (A) at 564;
Le Roux v Le Roux 1967 (1) SA 446 (A) at 463;
Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) at 551.
4 . The decision to be determined by me in the present matter, has not been either legitimately or rationally pronounced by any tribunal. The fact that a matter concerning the salaries of certain individuals may be before the Labour Courts in the form of a review, does not prohibit me from continuing with the present matter. In the light of these circumstances, I dismissed Mr Tleru’s application.
5 . In terms of the procedure for rationalisation and redeployment of educators as regulated in Resolution 6/1998, read together with the Employment of Educators Act No. 76 of 1998, it is clear that there is a decisive break from the past, which was unacceptable in the education sector. It constitutes a decisive break from a culture of separate education and racism to a system that protects a culture of openness and democracy and universal human rights for South African learners/educators of all ages, classes and colours.
6 . There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the education of learners is premised. The past was pervaded by inequality, authoritarianism, and unequal education. The aspiration of the future of education in our country is based on what is tabulated in Section 29 of the Constitution of the Republic of South Africa Act 108 of 1996.
7 . The objective for the procedure for rationalisation and redeployment of educators is set out as follows :
“These procedures provide for the rationalisation and redeployment of educators within educational institutions to achieve equity in educators staff provisioning in the said institutions in terms of approved policy on educator post provisioning.”
8 . The objectives are spelt out in what is commonly known as the Morkel Model. In terms of this document,
“These inequities are based on historical imbalances and pertain to certain learning areas that are mainly offered in advantaged schools in certain communities and also in respect of the provision of facilities required by some of these learning areas. These inequities should therefore be addressed separately by heads of education departments.” (Emphasis added).
9 . Mr Delport acting on behalf of the Union and its members, invited me to interpret the Acts as well as the regulations in a purposive manner. As I understood his argument, he submitted that in acting in the manner in which it did, the Governing Body of the respective schools were not at fault. The Governing Bodies made their recommendations, and as a result of the recalcitrant attitude of the Department, these nominations were not confirmed. The Employment of Educators Act of 1998 in my view, contains in material respects a new fundamental commitment to human rights with regards to learners/educators and is not merely a contemporisation and incremental articulation of previously accepted and entrenched values shared in our society. When viewed in their contextual setting, the provisions of the Employment of Educators Act 1998 afford the Head of the Department of Education support for the basic premise that the touch stone in the procedure to be adopted is a fair one in the appointment of an educator. The underlying enquiry envisaged is that the Head of Department has to confirm that there has been no irregularity or illegality and that there is no departure from the formalities, rules and principals of procedure according to which the Employment of Educators Act 1998 is set out.
10 . It is precisely this act to be determined by the Head of Education which expressly guarantees to every applicant a fair opportunity. If such a fair opportunity is denied to a applicant, then it can be found to be an unfair process ensuing in the setting aside of the recommendation. Coming to terms with the past inequalities in our educational system is a difficult and, for some, painful matter. We must close the book on the past, but before we begin to do it, we must not suppress it. A new democratic order cannot be based on the continuation of unrepresentative institutions which, by their very nature, lack impartiality and representivity and cannot continue as our common patrimony.
11 . A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principals of tolerance and impartiality so that all persons within the school environment feel equally free to participate. The Head of Department for the province, by his or her conduct, must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. In acting in this fashion in order to meet these values, it is of utmost importance that the Head of Department ensures an equitable representation of educators at a particular school. If in the opinion of the Head of Department the demographics and needs of the school have not been adequately considered by the Governing Body, then in those circumstances, the recommendation is not merely a rubber stamp effect. The Employment of Educators Act 1998 sets out in Section 6(3)(b) the instances when the Head of Department may decline the recommendation of the Governing Body. In this particular matter, the evidence was that the Head of Department did not communicate his reasons for not adopting the recommendation of the Governing Body, and as I understood the argument, this was in fact fatal. This argument in my view cannot hold water. The documentary evidence in the form of correspondence between the Union and the Department shows that certain persons not belonging to the racial group of the particular school were put forward by the Department. The Governing Body were not satisfied with these names. In some instances the individuals were not prepared to be transferred. In these circumstances, and in my view, in order to have a properly represented education body, the Governing Body should have reviewed their decisions and made the appropriate recommendations to the Head of Department.
12 . In terms of the procedure for rationalisation and redeployment of educators in provisioning of educators posts, a dispute resolution section has been set out. In terms of this section, any dispute concerning the general interpretation or applications of the procedures, shall be discussed in the relevant PTT, if it concerns only a province. The evidence of Mrs Strydom indicated that whilst a casual discussion was entertained, this matter was not conscientiously dealt with as provided for.
13 . Mr Delport referred me to several decided cases (in his supplementary Heads of Argument, for which I am grateful). The first case was Douglas Hoërskool en ‘n Ander v Premier, Noord Kaap, en Andere 1999 (4) SALR 1131 NC. In that case, a vacancy arose at a school. The post was advertised and the Head of Department thereupon forwarded the names of a number of candidates to the Governing Body of the school. To the knowledge of the Head of Department, however, only one of those candidates, complied with the minimum requirements and conditions for the post advertised. The Interview Committee of the Second Applicant conducted no interviews with the unsuitable candidates and the Second Applicant forwarded only one individual’s name to the Head of Department for appointment in the vacant post. However because the Head of Department wanted to appoint another person - who had not applied therefor - to the post, he neglected to appoint in and continued with his attempts to persuade the other person to accept the position. In this case, it was held that none of the candidates besides N, complied with the minimum requirements and conditions for the post as advertised, there was no obligation on the Interview Committee to consider the applications of the persons who did not comply with the requirements for the advertisement or to place their names on the shortlist.
14 . It is trite that each case must be determined on its own facts. The aims and objects of the legislative acts as well as the promulgations read together with the regulations is primarily to enable the Head of the Department to exercise a discretion properly when the Head of Department has to decide whether to decline a recommendation of a Governing Body. In Douglas’ matter supra, the Head of Department had known that apart from N, the candidates did not have the necessary experience and he did not allege that despite their deficient qualifications, they had enough experience to fill the post. Therefore, even if three names had in fact appeared on the shortlist, the Head of Department would have been obliged to appoint N. The object of the specific provisions would then have been achieved. In the present matter, the facts are somewhat different. In all of the instances referred to, the Principals of the respective schools had given the individual Applicants an undertaking that their appointment for the posts applied for, was a mere formality. In my view, this is not what the Act envisages. I am not satisfied, in the light of evidence that is before me, that a reasonable opportunity had been afforded to all prospective applicants for the respective posts in the present matter. For all intents and purposes, it appeared that the applicant for the post was already given the assurance that she would be the successful candidate, this does not accord with the spirit of the appointment process.
15 . The comments of Van Winsen JA in the matter of Maharaj and Others v Rampersad 1964 (4) SA 638 (A) at 646 are apposite.
“In deciding whether there has been a compliance with the injunction the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance.”
I have dealt with the object to be achieved in the Educational Sector for the appointment of educators in great details throughout this arbitration award.
16 . Mr Delport further drew my attention to the provisions of Section 195 of the Constitution of the Republic of South Africa. This section provides for basic values and principals governing public administration and it further sets out those principles and democratic values in accordance with which public administration must be governed. One of the principles enshrined in Section 195 of the Constitution is that the “... efficient, economic and effective use of resources must be promoted”. In the present matter, there was no factual evidence before me to indicate that the Head of Department did not contemplate acting within the spirit of Section 195 of the Constitution. The fact that the Department may have been recalcitrant, does not automatically mean that it was inefficient, and that it was not utilising its resources in an economic or effective manner.
17 . The Union and its members further failed to show with any credible evidence, that when making recommendations to the Head of Department, the Governing Body had regard to “the democratic values and principles referred to in section 7(1) of the South African School Act. This is a crucial factor that the Governing Body must take into account when making the recommendation. In terms of Section 6(3)(b) the Head of Department may decline the recommendation of the Governing Body if the recommendation of the said Governing Body or Council, as the case may be, did not have regard to the democratic values and principles referred to in section 7(1).”
18 . Mr Delport further referred me to the case of High School Carnarvon and Others v The Member of the Executive Council for Education, Training, Arts and Culture of the Northern Cape Provincial Government (Unreported decision , case number 850/99, date 27 September 1999) in the High Court of South Africa NCD. In this matter, there was a proposed amalgamation of certain schools. On 12 April 1999, the Governing Body received a letter from the Head of Department which stated :
“Die Departement is nie bereid om op hierdie stadium die verkante betrekking soos geadverteer in die Januarie Gazette te vul nie, aangesien die voorgestelde amalgamasieproses van skole te Carnarvon nog nie afgehandel is nie.”
The Governing Body instituted review proceedings against the Department, claiming that an individual be placed in a position as a principal. The learned Judge stated that :
“No factual evidence whatsoever was placed before me to show that the appointment of Mr Prince will frustrate the promotion of efficient, economic and effective use of resources.”
In this matter, the Head of Department had taken into consideration circumstances which the Head was not allowed to in terms of the statute, and he accordingly acted ultra vires his powers. The facts in the present matter are clearly distinguishable. There was no evidence before me in the present matter to indicate in any manner, that the Head of Department was extending his powers to sit in judgement on the recommendation of the Governing Body. From the documents which was submitted to me, and admitted as evidence, I am satisfied that the Head of Department was not concerned with the merits of the recommendation, he was concerned with whether or not it met with the requirements of Section 6(3)(b) of the Act. The Head of Department did not at any time attempt to substitute his decision or recommendation when compared to that of the school Governing Body’s.
19 . The decision of the Head of Department should be treated with deference by any person applying his or her mind to these decisions. The reasons are manifold. Firstly Parliament in the Employment of Educators Act in affording the Head of Department the ultimate decision making power, has by the privative clause indicated that the decision of the Head of Department is to be final. Secondly, recognition must be given to the fact that the Head of Department is an expert in the educational field, and understands the intrinsic needs of the particular school. He is aware of the intricacy of the education needs at a particular school, and the delicate balance that must be preserved between applicants for a position and the needs of a particular school in relation to the constitutional provisions. Each time that the Head of Department’s decision is interfered with, by a tribunal such as the present one, then confidence is lost not only by parties which must appear before the arbitration, but also by the community at large.
20 . None of this is to say that the Department must act in a recalcitrant fashion. The Resolution No. 6 of 1998 was the product of compromise and consensus amongst the social partners. In my view, there are compelling reasons why the Head of Department has the final say in the appointment of an educator. The Head of Education through the circulars that I have referred to hereinbefore has on several occasions brought to the attention of the principals that the practice of appointments at schools without prior approval from Head Office is not allowed. The Head of Department is the best person who is placed in and aware of the intricacy of the appointment of educators. This individual is guided by the recommendations of the Governing Body.
21 . In this matter the fault of the Head of Department or his or her office, was that they did not act in an expeditious or efficient manner in communicating with the schools. This by itself should not allow the applicants to enjoy the benefit of a permanent position as was requested by Mr Delport. There are also good policy reasons that allow the Head of Department the discretion to ratify or reject the recommendation of the Governing Body.
22 . The fact that the Governing Body as well as the school principals were frustrated by the lack of communication is not enough to legally justify their unilateral appointment in violation of the Acts that I have referred to as well as the regulations and circulars, in employing the teachers as they did. The school Governing Body, or the Union, could have asked that the PTT be convened, and the dispute be resolved at that forum. This they did not do.
23 . In order to determine whether the Head of Department acted substantially in terms of his duties as determined in the Employment of Educators Act of 1998, the enquiry involves a determination as to whether the Head of Department contravened any right that was guaranteed to an individual. The onus of proving that the Head of Department violated this right rests on the party seeking to do so. In the present case, there has been no evidence to show that the Head of Department violated the rights of any of the teachers referred to herein. In fact the evidence was to the contrary. All the educators as well as the principals agreed under cross-examination that the final appointment is made by the Head of Department and this cannot be deviated in any way whatsoever. That the Department did not communicate in an expeditious fashion, is not decisive with regard to the ultimate decision.
24 . Mr Delport referred me to an arbitration award in the matter between Northern Cape Education Department and Suid-Afrikaanse Onderwysunie, case number CAR175. In that matter, the Union had contended that the failure of the Department to pay certain educators for the services that they rendered constituted an unfair labour practice. The department had contended that in terms of its regulations, it did not approve the appointment of the educators and therefore was not liable for the payment of the salaries of the educators for the period they rendered their services. The arbitrator in that matter, recognised that :
“In terms of resolution 3/1996, Annexure A article 2(3), (4), (8) provision is made for VSP-educators to fill key posts for a periods of 18 - months or 1 year. In this regard, at some schools the right-sizing committees at the schools recommended that VSPs to educators in key posts not to be granted. However, these recommendations were ignored by the Department.”
25 . The Departmental policy in that case, was not in favour of reappointing VSP educators. This was set out in a letter from the Chief Director Education and Personnel Management. The arbitrator went on to state that :
“If the Department had responded to the nominations in a reasonable time and the governing bodies continued to appoint the educators concerned, the its argument that the policy was ignored would be valid. It is not enough to assert that policies and procedures are in place, they must be implemented. In this case, the applicants should have been specifically turned down within a reasonable time.”
26 . The arbitrator went on and ordered the Department to pay the outstanding salaries to the educators. I am alive to the fact that substance should not always be sacrificed to form, and in special circumstances greater good may be achieved by overlooking technical defects. However the defect in the application and implementation of the circulars and regulations specifically agreed upon, cannot be described as technical. In each case, one must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act. I am unable to agree with the learned arbitrator in the case referred to, in that I believe that injustice could result in the non-compliance with the regulation and statutory act.
27 . In the matter of Suid-Afrikaanse Onderwysunie v Gauteng Department of Education case number GAAR10094 I said the following :
“In deciding whether there has been compliance with the South African Schools Act read together with the regulations and circular, the object sought to be achieved by the aforesaid Act and regulations and the question of whether this object has been achieved are of importance. In matters such as the present one, it is important that the regulations and circulars are adhered to by those implementing the procedural decisions. If this were not to be the case, then I fear that it could open up the doors of abuse in the appointment of persons to particular posts. This could be to the detriment of the Department of Education as a whole. There are also very good reasons for distributing circulars from time to time which literally spells out in minute detail the procedure that has to be adopted in the exercise of the duties by the governing bodies as well as other bodies acting in terms of the relevant legislation. A non _ compliance with the provisions of these legislations, read together with the regulations as well as the circulars issued from time to time, in my views result in a nullity. The statutory provisions, as well as the regulations attached to these provisions, are in truth binding legal rules. They cannot be implemented in a haphazard fashion at the whim or fancy of a particular governing body. If this was to be allowed to be interpreted at the whim or fancy of a particular governing body at a particular school, then in my view disputes would be fester and subsequently spread infection of discontentment. It is trite that disputes in the field of industrial relations are particularly sensitive. The disputes must be resolved quickly, finally and with certainty, or else they can lead to frustration, hostility and even violence.”
28 . I believe these sentiments to be apposed in the present matter.
29 . The evidence in the present matter is abundantly clear that neither the Governing Body nor the principals were entitled to make the representations that they did to the individual educators referred to herein. The relevant legislation that I have referred to read together with the regulations and circulars prohibit the Principals and Governing Bodies to act in the fashion that they did.
30 . In all of the above circumstances, the application by SAOU on behalf of its members are dismissed.
DATED at JOHANNESBURG on 23 May 2000.
______________________
ARBITRATOR
M JAJBHAY
MJ0047
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES GAAR 10091 FS
APPLICANT MRS S SCHOEMAN; A MARX; C SCHOEMAN; M DE JAGER AND S VAN DER SPUY
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR M JAJBHAY
DATE OF ARBITRATION
VENUE
REPRESENTATION:
APPLICANT SADTU
RESPONDENT
AWARD:
1 In all of the above circumstances, the application by SAOU on behalf of its members are dismissed.
DATE OF AWARD 23 MAY 2000