In the matter between

S MAPHUMULO Applicant

and

HEAD OF DEPARTMENT OF EDUCATION, KZN First Respondent

M SIBIYA Second Respondent

___________________________________________________________

ARBITRATOR: Adv D P Van Tonder

HEARD: 7 May 2010

DELIVERED: 17 May 2010

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – Alleged Unfair Labour Practice relating to Promotion;

Jurisdiction of ELRC – Educator employed in terms of the Employment of Educators Act – Educator unsuccessfully applying for a higher position in the public service within same provincial department of education – Post applied for governed by the Public Service Act – Whether ELRC has jurisdiction to determine dispute

JURISDICTIONAL RULING

INTRODUCTION

[1] This dispute concerns an alleged unfair labour practice relating to promotion. The arbitration hearing in this matter took place in Durban on 7 May 2010. Applicant was represented by adv. M Sibisi from Durban, instructed by W Zwane Attorneys. First respondent was represented by adv. D Pillay from the Durban Bar, instructed by the State Attorney. Second respondent appeared in person. The proceedings were digitally recorded.

THE APPLICATION FOR POSTPONEMENT

[2] At the commencement of the proceedings second respondent applied for a postponement to enable him to instruct a representative to represent him. He argued that he was never notified by the ELRC of his right to be represented by a trade union or legal practitioner. If he was aware of this right, he would have instructed his trade union SADTU to represent him. After hearing arguments, I refused the application for postponement. Here are my reasons for doing so.

[3] An applicant for a postponement seeks an indulgence and it is for him to satisfy the tribunal that it should grant him such indulgence.[1] Employment tribunals such as the ELRC are entitled to treat applications for postponement more strictly than the civil courts.[2] This is so because LRA requires arbitrations before the employment tribunals to be dealt with quickly, fairly and with the minimum of legal formalities.

[4] The ELRC Constitution requires the ELRC to give parties 10 calendar days’ notice of an arbitration hearing. It is common cause that second respondent was notified of the hearing on 19 April 2010, which means that second respondent was given 18 days’ notice of the hearing. Second respondent has been an educator, school principal and circuit manager for many years. It is simply inconceivable that a professional person in his position would not have realised that he is entitled to a representative in proceedings before the ELRC. Moreover, second respondent had more than sufficient time after 19 April to consult with his union and enquire from the union or the ELRC about his right to representation at the hearing. When the ELRC phoned second respondent a week prior to the arbitration to confirm that he will be attending, second respondent had an opportunity to enquire about the Constitution, procedures and rules of the ELRC, but failed to do so. Instead second respondent informed the ELRC that he would be objecting to the jurisdiction of the ELRC at the arbitration. It is simply inconceivable that a person who knows that he can object to the jurisdiction of a tribunal, does not know that he is entitled to be represented before such tribunal.

[5] Most importantly the Constitution of the ELRC, which is available on the ELRC website, and therefore accessible to second respondent, clearly provides that all parties before the ELRC are entitled to representation at arbitration. It was second respondent’s duty to familiarise himself with the ELRC Constitution before attending the arbitration, particularly because applicant’s union SADTU was one of the signatories to the ELRC Constitution. In the circumstances I was satisfied that the application for postponement had to be refused.

THE ISSUE IN DISPUTE

[6] I am required to determine whether the ELRC has jurisdiction to determine the dispute that applicant has referred for arbitration.

BACKGROUND

[7] At all material times applicant has been an educator employed by respondent in terms of the Employment of Educators Act[3]. It is common cause that applicant and second respondent both applied for the post of district manager in Port Shepstone in the KwaZulu-Natal provincial department of education. It is also common cause that applicant was unsuccessful and that first respondent appointed second respondent. It is further common cause that the disputed post is not a post on an educator establishment. The encumbent to that position is employed in terms of the Public Service Act[4] and not in terms of the Employment of Educators Act.

[8] Second respondent challenged the jurisdiction of the ELRC to determine the dispute that was referred to arbitration. He testified that the post, which is disputed in the alleged unfair labour practice dispute relating to promotion, that applicant has referred to the ELRC, is a post that is governed by the Public Service Act and Public Service Regulations, although it is a post within the KwaZulu-Natal department of education. As such, he argued that the ELRC has no jurisdiction to determine the dispute. On behalf of first respondent, Mr Pillay supported second respondent’s argument.

[9] Mr Sibisi on behalf of applicant conceded that the disputed post is governed by the Public Service Act and Public Service Regulations, that a SACE certificate was not a requirement for the post and that any person, irrespective of whether or not he was an educator and irrespective of whether or not he was an internal or external candidate, could be eligible for the post given the advertised criteria and given the fact that the post was advertised externally. He however submitted that since it is common cause that at the time when applicant applied for the post, he was employed as an educator in terms of the Employment of Educators Act, applicant was entitled to refer the dispute to the ELRC because educators are required to refer their employment disputes to the ELRC and because the disputed post lies within the KwaZulu-Natal Department of Education where applicant is employed.

EVALUATION

[10] Whether or not the dispute before me falls within the jurisdiction of the ELRC must be determined with reference to the Labour Relations Act[5] and the Constitution of the ELRC.

[11] The LRA provides that the powers and functions of a bargaining council in relation to its registered scope include resolving labour disputes.[6] It further provides that a bargaining council established in the public service for a specific sector, has exclusive jurisdiction in respect of matters that are specific to that sector.[7] A sector is defined by the LRA as an industry or service.[8]

[12] The Constitution of the ELRC contains the following important provisions regarding its jurisdiction and scope:

Scope of this agreement

This agreement applies to and binds the employer and all the employees of the employer as defined in the Employment of Educators Act, 1998, whether such employees are members of trade union parties to this agreement or not.[9]

Constitutional Scope

The registered scope of the Council extends to the State in its capacity as employer [as defined in the Employment of Educators Act 76 of 1998[10]] and those employees in respect of which the Employment of Educators Act, 1998, applies.[11]

[13] In order to understand the constitutional scope of the ELRC it is necessary to first understand the manner in which the education sector and education departments function. In any provincial department of education there are at least two main categories of employees. Firstly there are educators who are employed in terms of the Employment of Educators Act. Some of them are school based and some of them are office based.[12] Secondly there are public servants,[13] who are not employed as educators but who are employed in terms of the Public Service Act, 1994. There are therefore two clearly defined industries or sectors within all provincial departments of education namely an education sector and a public service sector.

[14] Section 3 of the Employment of Educators Act provides that save as far as far as determining salaries and conditions of service are concerned and save as far as creating posts are concerned:

14.1 The Director General of the National Department of Education is the employer of educators in the service of the National Department of Education in posts on the educator establishment of the National Department for all purposes of employment; and

14.2 The provincial Head of Department is the employer of educators in the service of the provincial department of education in posts on the educator establishment of that department for all purposes of employment.

[15] The employer of a public servant who is employed in terms of the Public Service Act, is the State in the broad sense, irrespective of the department where that employee is employed, irrespective of the geographical area or province where he is employed, and irrespective of whether or not he is employed in the national or provincial spheres of government.[14]Therefore, all public servants, expect for those ones in respect of whom legislation designates a specific official as their employer(such as educators), are employed by one and the same employer namely the State.[15]

[16] While the Public Service Act provides for the appointment of public servants by an “executive authority”, which in the case of a provincial department of education is the MEC, the individual who makes the appointment (who could be any official including the HOD with delegated authority from the MEC) is not the employer.[16] The official who makes the appointment is merely acting on behalf of the State and representing the State. The employer remains the State in the broad sense.[17]

[17] However, the employer of educators who are employed by provincial departments of education in terms of the Employment of Educators Act, is not the State in the broad sense but the provincial HOD.[18] It is therefore important to understand that the employer of all educators including applicant, is not the same legal persona (or entity or individual) as the employer of the encumbent in the post for which applicant has applied and in which second respondent was appointed. As an educator who is employed in terms of the Employment of Educators Act, applicant’s employer is the HOD of the KwaZulu-Natal Provincial Department of Education. The employer of the encumbent of the post for which applicant has applied and in which second respondent was appointed, is the State in the broad sense. These two employers are completely separate distinct legal personae.

[18] Against this background, I now return to the clause in the ELRC Constitution that determines its scope:

Constitutional Scope

The registered scope of the Council extends to the State in its capacity as employer [as defined in the Employment of Educators Act 76 of 1998[19]] and those employees in respect of which the Employment of Educators Act, 1998, applies.[20]

[19] This clause does not refer to the State in its capacity as employer in terms of the PSA but to the State in its capacity as employer in terms of the EEA. Because the registered scope of the ELRC refers to the definition of the State in its capacity as employer as defined in the Employment of Educators Act, the scope of the ELRC must therefore be determined with reference to that definition as contained in the EEA. It is clear that in respect of appointments and promotions, the State in its capacity as employer (as defined in the EEA) can only be:

19.1 the HOD of the provincial department of education where the disputed post lies (if the disputed post is a post on the educator establishment of a provincial department of education);[21] or

19.2 the Director General of the National Department of Education (if the disputed post is a post on the educator establishment of the National Department of Education)[22]

[20] Therefore, the employer of the encumbent in a post that is governed by the Public Service Act, can, despite the fact that such post lies within a department of education, never be an employer as defined in the Employment of Educators Act. For that reason a dispute about such a post, can never be a dispute that falls within the jurisdiction of the ELRC even if a job applicant is an educator.

[21] The constitutional scope clause in the ELRC Constitution necessarily implies that only those matters in the education sector arising from the employment relationship between the State in its capacity as employer as defined in the EEA and its employees in respect of which the EEA applies, can fall within the scope of and within the jurisdiction of ELRC. The dispute between applicant and first respondent could not have arisen from an employment relationship between the State as employer as defined in the EEA and an employee of the State in respect of which the EEA applies, because it is with the State in its capacity as employer in terms of the PSA that the applicant is in dispute; not with the State in its capacity as employer in terms of the EEA.[23] It is not the State in its capacity as employer in terms of the EEA that has refused to promote applicant, but the State in its capacity as employer in terms of the PSA that has refused to promote applicant. The State as employer in the broad sense operates within the public service sector and falls within the scope of the GPSBC or the PSCBC whereas the HOD and Director General as employer in terms of the Employment of Educators Act operate within the education sector and fall within the scope of the ELRC.

[22] Like all provincial departments of education, the KwaZulu-Natal Department of Education therefore operates in two distinct, separate industries or sectors, namely the education sector[24] and the public service sector.[25] The principle that a Bargaining Council may exercise its powers only over employers and employees in the sector and industry for which it is established, is firmly entrenched.[26] Therefore, the ELRC only has jurisdiction in respect of disputes that arise within the education sector out of an employment relationship between the State as employer as defined in the EEA and educators who are employed in terms of the EEA. Even if a disputed public service post lies within a provincial education department, the ELRC simply has no jurisdiction over a dispute in respect of such post that arises between the State in its capacity as employer in terms of the PSA and a job applicant, even if the job applicant is at the time when he applies for such post employed as an educator within the same provincial education department. [27]

[23] Further support for the findings I have arrived at is to be found in Clause 7 of the ELRC Constitution which provides that one of the objectives of the ELRC is to resolve disputes in education. The term “disputes” referred to clause 7 is defined in clause 38.10 of the Constitution as

23.1 matters that are regulated by uniform rules, norms and standards that apply to the education sector; [28]

23.2 matters that apply to terms and conditions of service that apply to the education sector; or

23.3 matters that are assigned to the State as employer as defined in the Employment of Educators Act 76 of 1998 in the education sector

[24] The dispute that applicant has referred to the ELRC is not a dispute that concerns matters within the education sector. It is a dispute that concerns matters within the public service sector. It is not with the aid of uniforms rules norms and standards that apply to the education sector[29] that applicant’s dispute will have to be resolved, but with the aid of uniforms rules norms and standards that apply to the public service sector.[30]

[25] Moreover, the dispute before me is not a matter that is specific to the education sector as required by the LRA.[31] In order for the ELRC to resolve the dispute, it must be specific to the education sector.[32] The fact that the disputed post lies within the department of education does not detract from the fact that it lies within the public service sector and not within the education sector. The ELRC was created as a specialist Bargaining Council to deal with matters which are specific to the education sector as this is an area regulated by complex legislation, regulations, collective agreements and departmental circulars, requiring specialist knowledge. The intention could never have been that the ELRC must determine disputes relating to posts that are governed by the Public Service Act, merely because job applicants happen to be employed as educators when they apply for such posts and merely because such posts lie within the same department of education where such educators are employed. To permit that would not only mean that the ELRC is expected to interfere with public service matters completely beyond the scope of the education sector; it would also mean that ELRC arbitrators who are contracted for their expertise in public education, and who know nothing about the Public Service Act and Public Service Regulations, must determine disputes relating to matters beyond their expertise. That would lead to absurdity because the public service itself is regulated by complex legislation, regulations and collective agreements, requiring specialist knowledge.[33]

[26] In summary, my findings are as follows: In order for the ELRC to have jurisdiction to determine a promotion dispute that was referred to the ELRC, at the very least, all the following jurisdictional facts must simultaneously be present:[34]

26.1 The applicant employee who refers the dispute, must at the time when the dispute arises be employed as an educator in terms of the Employment of Educators Act;

26.2 The employer party to the dispute must either be:

· the HOD of the provincial department of education where the disputed post lies (if the disputed post is a post on the educator establishment of a provincial department of education);[35] or

· the Director General of the National Department of Education (if the disputed post is a post on the educator establishment of the National Department of Education)[36]

26.3 In order for the employer party to the dispute to be the HOD or the Director General, the dispute must have arisen from the employment relationship between the applicant educator as employee and the HOD[37] as employer (or the Director General[38] as employer):

· In order for the dispute to arise in this manner, the disputed post must either lie on the educator establishment of a provincial department of education or of the national department of education.

· A dispute concerning a post within an education department that is governed by the Public Service Act can never arise in this manner and can therefore never be subject to the jurisdiction of the ELRC

[27] Taking into account all these considerations, I am satisfied that neither in terms of the LRA nor in terms of the ELRC Constitution or its registered scope, does the ELRC have jurisdiction to determine the dispute that applicant has referred to the ELRC.

ORDER

In the premises I make the following order:

1. The ELRC lacks jurisdiction to arbitrate the dispute that was referred by applicant to the ELRC.

2. Insofar as it is possible, the ELRC is requested to assist the applicant and his representative in transferring his referral and dispute to the correct forum.

3 No order as to costs is made.

______________________________ adv D P Van Tonder

Arbitrator/Panellist: ELRC

Chambers

Cape Town

[1] Isaacs v University of Western Cape 1974 2 SA 409 (C) 411H; Carephone (Pty) Ltd v Marcus 1999 (3) SA 304 (LAC) 320D para 54

[2] Ross & Son Motor Engineering v CCMA [1998] 11 BLLR 1168 (LC)

[3] The Employment of Educators Act No 76 of 1998, hereinafter also referred to as “the EEA”

[4] The Public Service Act, 1995, hereinafter also referred to as “the PSA”

[5] The Labour Relations Act No 66 of 1995, hereinafter also referred to as “the LRA”

[6] Section 28(1)(d)

[7] Section 37(5)

[8] Section 213

[9] Clause 2;

[10] Clause 38.13 of Annexure A defines employer as the State in its capacity as employer as defined in the Employment of Educators Act 76 of 1998

[11] Clause 6 of Annexure A; also see the registered scope of the ELRC which is similar

[12] The Employment of Educators Act defines an educator as a person who teaches, educates or trains other persons or who provides professional educational services at any public school, departmental office or adult basic education centre and who is appointed in a post on any educator establishment. See section 1

[13] such as cleaners, typists, senior managers and the provincial Head of Department

[14] MEC for Transport: Kwa-Zulu Natal and others v Jele (2004) 25 ILJ 2179 (LAC); Jele v Premier of the Province of Kwazulu-Natal & Others (2003) 24 ILJ 1392 (LC)

[15] MEC for Transport: Kwa-Zulu Natal and others v Jele (2004) 25 ILJ 2179 (LAC)

[16] Jele v Premier of the Province of Kwazulu-Natal & Others (2003) 24 ILJ 1392 (LC)

[17] ibid; Compare Rantho v Premier Free State Province and Others (476/2004) [2004] ZAFSHC 16 (18 March 2004)

[18] MEC for Transport: Kwa-Zulu Natal and others v Jele (2004) 25 ILJ 2179 (LAC) par 27; Section 3 of the Employment of Educators Act. In other words the HOD is not merely acting on behalf of the State or representing the State. The HOD in his official capacity is in fact the employer of the educator.

[19] Clause 38.13 of Annexure A defines employer as the State in its capacity as employer as defined in the Employment of Educators Act 76 of 1998

[20] Clause 6 of Annexure A

[21] See section 3(1)(b) of the Employment of Educators Act

[22] See section 3(1)(a) of the Employment of Educators Act

[23] The State in its capacity as employer in terms of the EEA can for purposes of promotion only be the HOD or the Director General – see section 3 of the EEA

[24] in respect of all matters arising from the employment relationship between (1) the State as employer as defined in the Employment of Educators Act on the one hand and (2) employees who are employed as educators in terms of the Employment of Educators Act on the other hand

[25] in respect of all matters arising from the employment relationship between (1) the State in the broad sense as employer in terms of the Public Service Act on the one hand and (2) employees employed as public servants in terms of the Public Service Act on the other hand

[26] Photocircuit SA (Pty) Ltd v De Klerk NO (1991) 12 ILJ 289 (A) at 294

[27] There is nothing contradictory or strange about the fact that there can be two distinctly different employers within the KwaZulu-Natal department of education and that each of them operate in different sectors under the jurisdiction of different bargaining councils. It is well established that even the same employer may be engaged in two or more industries or sectors at the same time and for the employer to be an employer in each one. See R v Giesken & Giesken 1947 (4) SA 561 (AD) at 566; R v Sidersky 1928 TDP 109 at 112; Golden Arrow Bus Services (Pty) Ltd v CCMA (2005) 26 ILJ 242 (LC). The two industries may be distinct or one may be ancillary to the other. See KWV v Industrial Council for the Building Industry & Others 1949 (2) SA 600 (A) at 608. Where an employer who has to a substantial extent embarked upon activities of an enterprise which is clearly not in itself part of his normal operations, then, despite the fact that such activities may be incidental, perhaps even necessary, to the proper functioning of the existing operation, they do not form part thereof. SeeFood & Allied Workers Union v Ferucci t/a Rosendal Poultry Farm (1992) 13 ILJ 1271 (IC). If the same employer fall within the registered scope of two or more bargaining councils because it is engaged in two or more sectors, then each of those bargaining councils may only exercise its powers over that employer in respect of its registered sector.

[28] Compare this clause to section 26(a) of the LRA which provides that the Public Service Co-ordinating Bargaining Council may perform all the functions of a bargaining council in respect of those matters that are regulated by uniform rules, norms and standards that apply across the public service;

[29] i.e. ELRC Collective agreements, PAM, Employment of Educators Act, South African Schools Act

[30] i.e. Public Service Act, Public Service Regulations, SMS handbook, Public Service Resolutions

[31] Section 37(5)

[32] ibid

[33] The presumption that when contracts, documents and statutes need to be interpreted, it must be interpreted so as to avoid absurdity is well established. See Coopers & Lybrand v Bryant 1995 (3) SA 761 (A) 767E-768E; Steyn Die Uitleg van Wette (5th ed) 118

[34] While there may be other jurisdictional issues as well that could be raised (such as whether or not the dispute that was referred is indeed a promotion dispute and not an appointment dispute) I confine myself for present purposes to the jurisdictional issue that I was required to determine by the parties in this case

[35] See section 3(1)(b) of the Employment of Educators Act

[36] See section 3(1)(a) of the Employment of Educators Act

[37] If the disputed post lies within a provincial department of education

[38] If the disputed post lies within the National Department of Education