In the ARBITRATION between:

NAPTOSA OBO MRS Y MAHARAJ

MR D MOODLEY

(Union / Applicants)

and

DEPARTMENT OF EDUCATION – KWAZULU NATAL

(Respondent)

Union/ First Applicant’s representative : Mrs Maharaj represented by NAPTOSA, Mrs T Moodley

53 Anthony Road, Umgeni Park, Durban

Telephone: 031 563 1966

Telefax: 031 563 1611

Second Applicant : Mr D Moodley – appeared in person

P O Box 401, Stanger

Telephone: 079 491 1966

Telefax: 032 5511227

Respondent’s representative: Mr Vusi Mlaba

17 Margaret Mngadi/ Victoria Embankment

Truro House, Durban

Telephone: 031 360 6241

Telefax: 031 337 4261

DETAILS OF HEARING AND REPRESENTATION:

[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the

“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 19 July 2012 and was finalized on 10 October 2012. The matter was heard at the Kwa Zulu Natal, Teachers Centre, Durban.

[2]. Both Applicants were present. Mrs Y Maharaj was represented by Mrs Moodley, a union official from NAPTOSA and Mr Moodley, the other applicant, appeared in person without representation. The Respondent was represented by Mr Vusi Mhlaba, the Department of Education in Kwa Zulu Natal.

ISSUE TO BE DECIDED:

[3]. Whether the dismissal of the Applicants were substantively and procedurally unfair.

BACKGROUND:

[4]. Both Applicants were employed with the Respondent as level 1 educators on 1 January 2008. Both were dismissed on 31 December 2011. Maharaj earned a salary of R 190 368 per annum and Moodley earned R 204 102.

[5] Applicants case was that they were unfairly dismissed with no valid reason or explanation. They maintained that their dismissal was substantively and procedurally unfair. They were permanent employees and the Respondent cancelled their contract and dismissed them without justification. Both asked to be reinstated. The Respondent submitted that they were employed on a temporary basis as they had previously taken the voluntary severance package. As a result their employment contract came to an end and there was no dismissal.

SURVEY OF EVIDENCE AND ARGUMENT:

I do not intend to deal with every aspect of the evidence and or argument of each party but will only

record the part of the evidence and argument that I deem necessary for purposes of this determination.

Respondent’s case:

[6] Respondents case was that at one stage the department was loaded with teachers and they were offered voluntary severance packages (VSP). The department later experienced a shortage of teachers and there was leverage to approach educators who left the system and invite them to be re-employed. In terms of circular HRM 62 of 2007 the teachers were re – employed and appointed on a temporal basis. In terms of circular 72 of 2010 preference had to be given to young entrants and the governing body had to provide reasons for appointing educators that previously exited the system. They added that in terms of circular 89 of 2011 all temporay appointed educators who failed to follow the procedure would not have their contracts renewed. In this instance the Applicants failed to comply with circular HRM 89 of 2011 and their services were accordingly terminated.

[7] Mr Mhlaba gave evidence on behalf of the Respondent. He stated that the Applicants appointments were subjected to the conditions contained in their appointment letter, dated 11 January 2008, in terms of HRM Circular 56 of 2007 in that the Department reserved the right to withdraw the placement if:

‘(a) You do not meet the minimum requirements of the post

(b) Your application was based on incorrect information

(c) Your placement was based on procedural incorrectness

(d) A dispute/grievance has been lodged against the post.’

[8] He referred to circular 62 of 2007: ‘ the reappointment of educators who proceeded on voluntary severance packages and discharged in terms of ill health will be of a temporary nature’. He said that in terms of the above circular the appointment was of a temporary nature and not permanent. He added that there also had to be compliance with the manual on reappointment of educators after break in service as set out in circular 72 of 2010 which stated:

‘Nominations of persons returning after break in service must be ratified by the school governing body and supported by the following documents:-

– The advertisement in terms of the vacant post

– A schedule of applicants for the post clearly indicating their qualifications

– Written confirmation from the Principal and Chairperson of the SGB relating to the disclosure of the reasons of the Applicant for previously exiting the service and for this purpose, an affidavit from the applicant indicating reasons for previously exiting the service of the Department must be furnished

– Minutes of the SGB ratifying the nomination’

[9] He argued that there was no compliance with the above section and emphasized that the governing body ought to have given reasons why they chose an exited educator over young suitably qualified applicants. The governing body failed to comply which resulted in a procedural flaw and thus the contracts can be terminated.

Applicant’s case:

[10]. Applicants case is that they applied for a post in terms of HRM 56 of 2007. Maharaj applied for post number 107 in Stanger High and Moodley applied for post number 105 in Stanger Secondary School. They were informed by the MEC that all voluntary service package educators were free to apply for a post of their choice. They applied for a level 1 post in the bulletin and they were successful. They were in the post from January 2008 to December 2011. They were informed in May that their services would be terminated and that their employment was of a temporary nature. The termination period was extended till December 2011. Both claimed that their dismissal was unfair and that the department acted inconsistently.

[11] Mrs. Y Maharaj stated that she was employed at Stanger High and was unfairly terminated by the Department in December 2011. She said that she was currently employed by the governing body. She said that she complied with all the requiremnst and loyally served the department for over 3 years and the withdrawal of her appointment was unfair and unjust. She emphasized that it was grossly unfair to dismiss her after more than 3 years’ of service in a permanent position. She was appointed in terms of the bulletin which entailed that the appointment was permanent. She said that she complied with section 6 A of the Employment of Educators Act. She said that she had 37 years of faithful service in the department and the circular 62 of 2007 was unknown to her. In addition circular 72 of 2010 had no retrospective applicability. She also mentioned that there were several other VSP educators still in the department which made her dismissal grossly unfair and inconsistent.

[12] Mr Khuzwayo, Principal at Enkukwini Primary school stated that he was the chairperson of the governing body in 2007. He explained that he was never aware of circular 62 of 2007. He explained that they are workshopped on policy but this was never addressed. He pointed out that circular 72 of 2010 mentioned permanent posts which meant that it allowed it. He also said that in his experience circulars supersede the previous ones and never operate retrospectively. He maintained that the dismissals of the applicants were extremely unfair.

CLOSING STATEMENTS

[13] Ms. Moodley on behalf of Maharaj argued that the Respondent presented weak arguments in an attempt to establish fairness of the dismissal. She stated that circular HRM 20 of 2012 was irrelevant as it did not apply retrospectively. She stated that circular HRM 62 of 2007 was not addressed to the SGB and should carry no weight. She pointed out that it was conceded that Maharaj was erroneously appointed and the employer reserved the right to withdraw that appointment, even 10 years later. In addition the employer inconsistently applied the rule as there are several other VSP employees still in the system. She submitted that the dismissal was unfair and the Respondent failed to discharge the onus of proof. She asked for reinstatement with retrospective effect.

Mr Moodley argued that his dismissal was unfair, unjust and discriminatory. He mentioned that prior to his re-entry with the Respondent he was appointed as an educator on a permanent basis at Al Falaah College and if there was any indication that his position was temporary he would never had resigned and re-entered the department. He asked that he be reinstated retrospectively.

[14] Mr Mhlaba stated that it was common cause that both Applicants applied for post 105 and 107 and they were appointed to those positions. He argued that Maharaj and Moodley are covered by Personal Administrative Measures (PAM) contained in the Educators’ Policy Handbook, page C – 74 Clause 2.4(d) which reads:

“in the absence of the sound reasons, the appointment of the persons, whose services have been terminated owing to rationalization and who have been given the opportunity to be transferred to another suitable post but who have nevertheless, exercised the choice of retiring on pension prematurely, shall be deemed not to be in the interest of the state.” This clause applies to both Mrs. Maharaj and Mr. Moodley because in 1997 they opted for a Voluntary Severance Package (VSP).

He stated that emanating from the above all posts are permanent in the system whether advertised or not but the incumbent are either temporary or permanent or acting in a post. To comply with risks management, the department when issuing the placement letters, made a provision to correct any error once it has been identified, as per bundle B, document number 1, paragraph 4. The department had reserved the right to withdraw the placement. He asked that the application accordingly be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT:

[15]. I have to determine, on a balance of probabilities, whether the dismissal of the Applicants were substantively and procedurally fair. Both were permanent educators who previously took voluntary severance packages and re -entered employment through an advert in the bulletin. They maintained that their employment was permanent and the department disputed this stance. Their argument was that it was the policy at the time of their appointment that educators who took voluntary severance packages cannot be appointed on a permanent basis. I am to decide whether such is the case and if so whether it was fair and just. Both Applicants re-entered employment with the department in 2008. At all times they were under the belief and understanding that their positions were permanent. They only became aware in July 2011 that their positions were temporary and their contracts were amended to reflect same and extended for a period of six months till the end of December.

[16] The matter related to an unfair dismissal which placed the onus on the Respondent to establish that the dismissal was both procedurally and substantively fair. Mhlaba testified in support of the Respondent’s case. He relied on circular 72 of 2012 which approved and allowed the implementation of the manual for the re-appointment of educators after break in service. In terms of paragraph 6.4 of the manual: ‘Written confirmation from the Principal and Chairperson of the SGB relating to the disclosure of the reasons of the Applicant for previously exiting the service and for this purpose, an affidavit from the applicant indicating reasons for previously exiting the service of the Department must be furnished’. It was argued that the Applicants failed to abide by this mandatory requirement which entitled the department to withdraw the placement and cancel the contract. This was in line with circular 56 of 2007 which allowed the cancellation and/or withdrawal of placement if based on procedural flaw. I accept that this would be a practical argument as it appears to be binding and mandatory. The problem I have in applying such obligatory conditions to the Applicants is that the manual only became operative in 2010, and more particularly 22 November 2010. To impose such stringent conditions retrospectively is unfair and unjust. Surely no chairperson or SGB would have been aware of these mandatory requirements in January 2008 when the Applicants were appointed. I accordingly cannot agree with Mhlaba that the appointments were based on procedural incorrectness as the procedure he relied on was nonexistent at the time of appointment. Ms. Moodley argued this point at length and Mhlaba was unable to forcefully deny this contention. He simply appeared evasive and continuously reiterated that there was noncompliance.

[17] I found Mhlaba to be a competent and proficient witness and did not appear to be untruthful. I must point out that I did find him evasive and elusive. Under cross examination he avoided answering questions which clearly would have disfavored his case. In this instance I must pause to state that he also appeared to be an experienced witness who was familiar with cross examination and was careful in his response to questions. It was not unusual considering that he was the representative and witness for the Respondent. Ms. Moodley asked him if there were any VSP educators that were employed on a permanent basis and to avoid an adverse inference he opted to evade the question. He however conceded that both Applicants were permanent as they were appointed in terms of the bulletin. Applicants contended that the rule was inconsistently applied as there were several VSP educators still in the system who was employed on a permanent basis. This contention was not vehemently denied.

[18] I accept Mhlaba’s evidence that in terms of circular 62 of 2007 the re – appointments of VSP or ill health retirement educators was temporary and not permanent. No evidence was adduced to indicate that this was brought to the attention of the SGB or the Chairperson. Mhlaba stressed that the Principal of the school would have been aware of the provision and it was their duty to inform the SGB. I am not willing to engage in an enquiry to pass blame. I accept the evidence of the Applicants that they were unaware of the provision coupled with the confirmatory evidence of Mr Khuzwayo. In addition the Applicants were given permanent contracts. It was a bulletin appointment which entails permanent positions. The fact that there was a roaming circular, which surfaced some 3 to 4 years later, makes it inapplicable in this instance. On the face of the appointment the Respondent at all times demonstrated that the positions were permanent and it would be inequitable to detract from this stance.

[19] It was also accepted that the Applicants complied with the Employment of Educators Act. Mr Moodley did not give evidence and relied on the arguments and evidence presented during the hearing. His evidence would have been a mere repetition of Maharaj and therefore would be unnecessary. Maharaj impressed me. She was an honest, sincere and truthful witness. Her testmoney, demeanor and attitude in the hearing appeared to be genuine and humbling. Maharaj categorically stated that there were several other VSP educators still in the system, also appointment on a permanent basis. She did not appear to be fabricating a situation and I have no doubt that it is indeed the case. In fact this contention was unchallenged. I find that the department acted inconsistently in dismissing some VSP educators while others are still employed.

[20] Khuzwayo’s evidence was helpful as it reinforced the argument that even the chairperson was unaware that the positions were temporary. He agreed with the Applicants that that circular 72 of 2010 could not possibly operate retrospectively. The one interesting point that emanated from his testimony is that Circular 72 made mention of permanent employment. It stated that: ‘the reappointment of person after break in service will be effected in a temporary capacity and their permanent appointment is subject to the following….’

This verifies and gives credence to the Applicants contention that their appointments for all intent purposes were permanent.

[21] It was common cause that there was a circular distributed stating that all VSP educators re –entering the system had to be employed on a temporary basis. Whether this circular was actually implemented was questionable. It certainly appeared that it was not as there were several other educators employed in a similar fashion and still remains in employment. In adopting principles of fairness and social justice it would be wholly unfair and unjust to condone the dismissals of the Applicants. It is no mystery that there is a shortage of teachers in this country and why the department will want to rid themselves of such seasoned teachers is bizarre. In addition these teachers were not novices and when applied for the positions and they firmly believed that they were permanent. All the evidence favors the Applicants contention and the circular in insufficient evidence to transform their appointments from permanent to temporary. In addition circular 72 had no retrospective applicability.

[22]. In analyzing the evidence both wholly and cumulatively I find that the Applicants dismissals were procedurally and substantively unfair. Both are entitled to reinstatement. Mrs Maharaj obtained employment with the SGB and her reinstatement is to operate retrospectively to 1 January 2012 with no back pay as I am satisfied that she secured some form of income. Mr Moodley is to be reinstated retrospectively to 1 January 2012 with 3 months back pay as he was not in employment and suffered loss of earnings. I find that 3 months loss of earning is fair and just as the delay in finalizing the matter cannot be solely attributed to the Respondent.

AWARD:

[23]. The dismissal of the Applicants, Mrs. Y Maharaj and Mr Moodley, is declared to be unfair;

[b] The Respondent, Department of Education, is directed to reinstate the Applicants retrospectively in its employment on terms and conditions no less favourable to them than those which applied on the date of their dismissal, 31 December 2011;

[c] The Respondent is directed to pay the 2nd Applicant, Mr Moodley arrear salary in the sum of R 51 024-00, (fifty one thousand and twenty four rand), equivalent to 3 months back pay, within fourteen days of being notified of this award;

[d] The Applicants are directed to report to work within seven days of being notified of this award.

ELRC Commissioner : VEESLA SONI Date : 17 OCTOBER 2012