PSES 153 & 155 KZN
PSES 153 & 155 KZN
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Award Date:
5 May 2001
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Case Number: PSES 153 & 155 KZN
Province: KwaZulu-Natal
Applicant: F A MAHARAJ & D BRIJLALL
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: DURBAN
Award Date: 5 May 2001
Arbitrator: MS B WHITCHER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 153 & 155 KZN
In the arbitration between:
A MAHARAJ AND D BRIJLALL APPLICANTS
and
DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR’S AWARD
1 .HEARING AND REPRESENTATION
The arbitration was conducted in Durban on 04 May 2001. The Applicants were represented by a Union Official, Mr Idran Pillay of SADTU. The Department was represented by Mr Sivi Naidoo.
2 .ISSUES TO BE DECIDED
In a letter dated 05 April 1995, and purportedly received by the Applicants at the end of April 1995, the Department informed the Applicants that the existing internal grading system regarding Post Level grading was discontinued from 01 April 1995. The Applicants contend that this was unfair.
3 . EVIDENCE AND ARGUMENT
.1 The Labour Relations Act, 1995 was implemented on 11 November 1996 and only deals with disputes that arose from 11 November 1996. I have been appointed in terms of the Labour Relations Act, 1995 and the dispute was referred under this Act. Accordingly, I only have the power to deal with disputes that arose from 11 November 1996. Disputes that arose prior to 11 November 1996, were dealt with under the old Labour Relations Act, 1956 and the Education Labour Relations Act, 1993. The forum for these two Acts was the Industrial Court.
.2 The first question in this case is: when did the dispute arise?. A dispute arises when the act of conduct complained of, commences, or is implemented or is completed.
.3 In its referral for conciliation the Union recorded that the dispute arose on 01 April 1995. The letter from the Department informing the Applicants of the discontinuation of the internal grading system is dated 05 April 1995 and the letter recorded that the change commenced on 01 April 1995. The Applicants contend that they only received the letter at the end of April 1995 and thus, only became aware of the change at the end of April 1995. Various letters from the Applicants and their Staff Association, questioning and rejecting this decision, commenced from 1995 and early 1996 respectively. In a letter dated 06 May 1996, the Department clearly stated that its decision conveyed to the Applicants in the letter dated 05 April 1995, remains unchanged.
.4 In my view, the dispute arose on 01 April 1995, namely when the grading system was discontinued. The act or conduct complained of commenced, and was implemented, on 01 April 1995.
This is conceded by the Union. It recorded in its referral form that the dispute arose on 01 April 1995. Whichever way one looks at the issue, the dispute clearly arose in 1995. Even a generous and adventurous interpretation of “when the dispute arose” may only extend the date to the end of April 1995 when they received notification of the change or 06 May 1996, when the Department formally and clearly stated that its decision still stands. The Applicants should have referred the matter to the Industrial Court in 1995. The Industrial Court also had time limits, in that a dispute had to be referred within 180 days of the date of the dispute.
In the circumstances I do not have jurisdiction to determine the dispute. The Union contended that I am being technical and too legalistic, and that I have jurisdiction to hear the matter, because it was set down for arbitration by the ELRC. The short answer to this, is that the Act does not give me the discretion to overlook the implementation date of 11 November 1996 and I have no power to determine a matter that I have no jurisdiction over, even if it has been set down by the ELRC.
4 . AWARD
Application dismissed for lack of jurisdiction.
BENITA WHITCHER
ARBITRATOR
DATED: 05 MAY 2001
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 153 & 155 KZN
APPLICANTS F A MAHARAJ & D BRIJLALL
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR MS B WHITCHER
DATE OF ARBITRATION 05 MAY 2001
VENUE DURBAN
REPRESENTATION:
APPLICANTS MR I PILLAY (SADTU)
RESPONDENT MR S NAIDOO
AWARD:
Application dismissed for lack of jurisdiction.
DATE OF AWARD 05 MAY 2001
Province: KwaZulu-Natal
Applicant: F A MAHARAJ & D BRIJLALL
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Venue: DURBAN
Award Date: 5 May 2001
Arbitrator: MS B WHITCHER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 153 & 155 KZN
In the arbitration between:
A MAHARAJ AND D BRIJLALL APPLICANTS
and
DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR’S AWARD
1 .HEARING AND REPRESENTATION
The arbitration was conducted in Durban on 04 May 2001. The Applicants were represented by a Union Official, Mr Idran Pillay of SADTU. The Department was represented by Mr Sivi Naidoo.
2 .ISSUES TO BE DECIDED
In a letter dated 05 April 1995, and purportedly received by the Applicants at the end of April 1995, the Department informed the Applicants that the existing internal grading system regarding Post Level grading was discontinued from 01 April 1995. The Applicants contend that this was unfair.
3 . EVIDENCE AND ARGUMENT
.1 The Labour Relations Act, 1995 was implemented on 11 November 1996 and only deals with disputes that arose from 11 November 1996. I have been appointed in terms of the Labour Relations Act, 1995 and the dispute was referred under this Act. Accordingly, I only have the power to deal with disputes that arose from 11 November 1996. Disputes that arose prior to 11 November 1996, were dealt with under the old Labour Relations Act, 1956 and the Education Labour Relations Act, 1993. The forum for these two Acts was the Industrial Court.
.2 The first question in this case is: when did the dispute arise?. A dispute arises when the act of conduct complained of, commences, or is implemented or is completed.
.3 In its referral for conciliation the Union recorded that the dispute arose on 01 April 1995. The letter from the Department informing the Applicants of the discontinuation of the internal grading system is dated 05 April 1995 and the letter recorded that the change commenced on 01 April 1995. The Applicants contend that they only received the letter at the end of April 1995 and thus, only became aware of the change at the end of April 1995. Various letters from the Applicants and their Staff Association, questioning and rejecting this decision, commenced from 1995 and early 1996 respectively. In a letter dated 06 May 1996, the Department clearly stated that its decision conveyed to the Applicants in the letter dated 05 April 1995, remains unchanged.
.4 In my view, the dispute arose on 01 April 1995, namely when the grading system was discontinued. The act or conduct complained of commenced, and was implemented, on 01 April 1995.
This is conceded by the Union. It recorded in its referral form that the dispute arose on 01 April 1995. Whichever way one looks at the issue, the dispute clearly arose in 1995. Even a generous and adventurous interpretation of “when the dispute arose” may only extend the date to the end of April 1995 when they received notification of the change or 06 May 1996, when the Department formally and clearly stated that its decision still stands. The Applicants should have referred the matter to the Industrial Court in 1995. The Industrial Court also had time limits, in that a dispute had to be referred within 180 days of the date of the dispute.
In the circumstances I do not have jurisdiction to determine the dispute. The Union contended that I am being technical and too legalistic, and that I have jurisdiction to hear the matter, because it was set down for arbitration by the ELRC. The short answer to this, is that the Act does not give me the discretion to overlook the implementation date of 11 November 1996 and I have no power to determine a matter that I have no jurisdiction over, even if it has been set down by the ELRC.
4 . AWARD
Application dismissed for lack of jurisdiction.
BENITA WHITCHER
ARBITRATOR
DATED: 05 MAY 2001
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES 153 & 155 KZN
APPLICANTS F A MAHARAJ & D BRIJLALL
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR MS B WHITCHER
DATE OF ARBITRATION 05 MAY 2001
VENUE DURBAN
REPRESENTATION:
APPLICANTS MR I PILLAY (SADTU)
RESPONDENT MR S NAIDOO
AWARD:
Application dismissed for lack of jurisdiction.
DATE OF AWARD 05 MAY 2001