In the arbitration between:

SADTU obo M J HEWU APPLICANT

and

WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT

ARBITRATION AWARD

1 . HEARING AND REPRESENTATION

1.1 The arbitration hearing was held in Cape Town on 6 and 13 May 1998, in accordance with a comprehensive med-arb terms of reference agreement between the Education Labour Relations Council (ELRC), the Western Cape Education Department, the South African Democratic Teachers Union and the Cape Professional Teachers Association.

1.2 The grievant was properly represented by Darrel Manus of the Union, and the WCED by Mr C R Esau and Mr S Faker.

2 . ISSUES

2.1 The issue in dispute, lodged by the grievant on 25 October 1996, concerned Mr Hewu’s non-appointment to the position of Deputy Principal at Matthew Goniwe Memorial High School in Khayelitsha.

2.2 The grounds for the alleged unfair labour practice, as set out in the letter of dispute written to the ELRC by Mr Hewu, were in essence that the WCED had not complied with the contents of Resolution 01/1995 of the ELRC, which states that :

2.2.1 A teacher currently occupying a post in a temporary capacity may without advertising the post be nominated for permanent appointment subject to the following conditions :

2.2.1.1 That the post occupied was advertised and the teacher concerned duly nominated for permanent appointment in accordance with the correct procedures pertaining in the particular ex-department at that time;

2.2.1.2 that the teacher qualifies in every respect for permanent appointment to the position that was advertised;

2.2.1.3 that the teacher still occupies the same post;

2.2.1.4 that the present governing structure in the school supports and endorses the appointment.

2.2.2 The parties had informal discussions, facilitated by the arbitrator, in an attempt to mediate the dispute in accordance with the terms of reference. When it became apparent that a settlement of the dispute would not be forthcoming, a non-settlement certificate was duly completed and the matter resumed as an expedited arbitration in accordance with the terms of reference.

3 . FACTS OF THE DISPUTE

3.1 The following facts emerged from the body of evidence as being either common cause or effectively proven during the proceedings.

3.2 The grievant, a teacher at the then Malizo Secondary School (now Matthew Goniwe Memorial High School), applied for the post of Deputy Principal advertised by way of a letter from the Principal and endorsed by the then Department of Education and Training (DET), and dated 20 November 1992. This letter states that the required qualification for the post was a Category D and 6 years of teaching experience.

3.3 Mr Hewu was appointed in an acting capacity to the post in 1992, although he did not have the required years of experience at the time. He acted in this post until 1996 when the dispute arose.

3.4 As a result of Resolution No 1 of 1995, and Circular 94/1995, the WCED considered appointing Mr Hewu to the permanent post of Deputy Principal, with effect from 1 January 1996, in the early months of 1996. The WCED found that Mr Hewu did not qualify for the position, in that he did not have the required six years’ teaching experience, and therefore did not appoint him.

4 . FURTHER EVIDENCE AND ARGUMENT

4.1 The grievant argued that the intention of Resolution No 1 of 1995, reached after negotiations in the ELRC, was in the first instance to assist in the integration of the various ex-departments of education. In order to do this, the Resolution allowed the WCED to apply a flexible standard in formalising and executing the permanent appointment of teachers who had been acting in posts for the previous number of years. Many teachers in the ex-DET had been acting in positions for a number of years, since no permanent appointments were made in this department between 1993 and 1996. Hewu was one of these.

4.2 It was the grievant’s contention that Resolution No 1 of 1995 was the result of an agreement to appoint all teachers acting in posts to those posts on a permanent basis, on condition that they qualified for the position at the date from which the appointment was made effective, 1 January 1996. As he had the required six years teaching experience at 1 January 1996, he argued that the WCED had acted unfairly in not appointing him to the position.

4.3 The grievant was prepared to lead the evidence of a witness, who would testify that he had been in a similar position to Mr Hewu, but had indeed been appointed to a permanent post. The WCED indicated that it would not wish to challenge this evidence. The grievant wished to use this to indicate that the relevant Resolution had in practice been interpreted by the WCED in the way that he argues it should be in his own case.

4.4 The grievant lastly asserted that he had suffered direct damages as a result of the actions of the WCED. He had lost his additional contributions to the pension fund, as well as certain notch increases granted during the period immediately following 1 January 1996.

4.5 The WCED contended that the critical part of Resolution No 1 of 1995, as it is clarified in Circular 94/1995, reads as follows:

1.2 that the teacher qualifies in every respect for permanent appointment to the position that was advertised;

and that this clause should be read to mean that the applicant had to qualify for the position at the time that it was advertised. Mr Hewu was therefore not appointed to the position since he did not qualify for it at the time that it was advertised (in 1992). The WCED submitted as evidence a letter from the Head of Education to the Chairperson of the School Governing Structure at Matthew Goniwe Memorial High School, dated 15 October 1996, stating that the Governing Structure’s recommendation that Mr Hewu be appointed to the post had been turned down for this very reason.

4.6 The WCED argued that there may have been instances where teachers in a similar position to that of the grievant were appointed to permanent posts, but that such isolated instances of inconsistency did not negate its key contentions in this case.

4.7 The WCED therefore argued that no unfair labour practice had been committed, and that the grievant’s case should be dismissed.

5 . DISCUSSION

5.1 The grievant’s successful assertion of an unfair labour practice depended upon his proving that the WCED had acted unfairly in not appointing him to the permanent post as Deputy Principal at Matthew Goniwe Memorial High School.

5.2 In order to decide whether this was the case, I have to determine which interpretation of Resolution No 1 of 1995, and Circular 94/1995, is the reasonable and fair one in the particular case before me.

5.3 The grievant argued strongly that, after extensive debate in the ELRC, of which he is a member, it was agreed that the critical date on which the qualifications of incumbents had to comply with the standards for a post, was 1 January 1996. This claims seems to be borne out by further argument that subsequent actions of the WCED reflect as mcuh. The WCED did not effectively challenge the allegation that its actions with regard to Mr Hewu was inconsistent with normal practice.

5.4 When considering the most probable intention of the agreement reflected in Resolution No 1 of 1995 and Circular 94/1995, I have to conclude that it was aimed at ensuring that incumbents were capable and qualified to properly fill posts before formalising their appointments. In this case, I cannot agree with the WCED that Mr Hewu was not qualified for the post of Deputy Principal. The post was to be filled with effect from 1 January 1996. By this date, Mr Hewu had completed the requisite six years of teaching. In addition, he had already acted in the post of Deputy Principal for a number of years. This very specific experience surely contributed to qualifying him for the position. Mr Hewu’s permanent appointment was furthermore recommended by the governing body of the school, who clearly found him to be qualified.

5.5 The overwhelming impression conveyed by the evidence was that the WCED’s interpretation of the regulation was incorrect, or at best too narrow. My reading of the clause draws attention to the phrase ‘that the teacher qualifies in every respect for permanent appointment to the post that was advertised’ , and specifically to the word ‘qualifies’ which is in the present tense. It is my understanding that this means that the incumbent had to qualify when the appointment was made effective.

6 . AWARD

For the reasons stated above and weighing up all the evidence and argument brought in this hearing, I have no hesitation in finding that the grievant has succeeded in proving an unfair labour practice. I therefore recommend that the WCED forthwith amends Mr Hewu’s service record to reflect his appointment to the permanent post of Deputy Principal at Matthew Goniwe Memorial High School with effect 1 January 1996. Furthermore that the appropriate contributions be made by both the WCED and Mr Hewu to the pension fund/scheme. I however recommend that the grievant’s claim with regard to his having missed opportunities for so-called notch increases be dismissed and taken no further.

_______________________
ARBITRATOR
BEN SCHOEMAN
Date : 17 May 1998

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES CMA 001016 WC
APPLICANT M J HEWU
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR BEN SCHOEMAN
DATE OF ARBITRATION 6, 13 MAY 1998
VENUE CAPE TOWN

REPRESENTATION:

APPLICANT DARREL MANUS (SADTU)
RESPONDENT C R ESAU AND S FAKER

AWARD:

For the reasons stated above and weighing up all the evidence and argument brought in this hearing, I have no hesitation in finding that the grievant has succeeded in proving an unfair labour practice. I therefore recommend that the WCED forthwith amends Mr Hewu’s service record to reflect his appointment to the permanent post of Deputy Principal at Matthew Goniwe Memorial High School with effect 1 January 1996. Furthermore that the appropriate contributions be made by both the WCED and Mr Hewu to the pension fund/scheme. I however recommend that the grievant’s claim with regard to his having missed opportunities for so-called notch increases be dismissed and taken no further.

DATE OF AWARD 17 MAY 1998