In the arbitration between:

MR GERT BEZUIDENHOUT (NATIONAL UNION OF EDUCATORS) APPLICANT

and

THE GAUTENG DEPARTMENT OF EDUCATION RESPONDENT

ARBITRATOR’S AWARD

1 .DETAILS OF HEARING AND REPRESENTATION

1.1 The arbitration proceedings were held on 6th and 9th March 2000 at the offices of the department. The department was represented by Mr Jeff Thipe, while the union and the complainant were represented by Mr Anthony Swartz. I thank them both for their very able assistance in this matter.

1.2 The complainant is aggrieved about the fact that the department refused to appoint him to the post of Deputy Principal at Hoerskool Die Burger. He raised his complaint in terms of item 2(1 )(b) of Schedule 7 of the Labour Relations Act, 1995 (“the Act”), The department agreed that the matter should be adjudicated in terms of this item of the Schedule. Item 2(1 )(b) of the Schedule provides:

“2 Residual unfair labour practices
(1) For the purposes of this item, an unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving-
(a) …
(b) the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee;”

1.3 The facts in this case are largely common cause or not seriously disputed.

1.4 In 1S96 the department was, for operational reasons, required to terminate the services of some of its employees. It offered each of these employees one of two options. The two options were:

an employee may accept a voluntary severance package with the condition that s/he will not be employed by the department in the future (“the VSP”), or,
s/he may accept a pension for the rest of her/his life (“the pension option”).
The complainant was one of the employees to whom this offer was made He accepted the pension option. His contract of employment with the department was terminated on 31s1 July 1996. As a result of his acceptance of the pension option. he receives a pension payment every month, and will continue to do so until his death.
1.6 The complainant obtained employment as a temporary teacher at Edith Hinds High School as from the 1st August 1996. He remained employed at this school until 31s’ December 1997. On 1s’January 1998 he secured employment with Hoerskool Die Burger as a temporary post level 1 educator. During the course of 1998 the department advertised the post of Deputy Principal at Hoerskool Die Burger. This Is a permanent post. The complainant applied for this post in or about December 1998. He and the other candidates for the post were interviewed by the School Governing Body (“SGB”). He was eventually recommended for the post by the SGE. In terms of the Employment of Educators Act the recommendation of the SGB is given to the Superintendent-Generai of the department who takes the final decision on whether or not to offer him employment as per the advertisement.

1.7 The Superintendent-General of the department refused to follow the recommendation of the SGB and offer the complainant employment as a Deputy Principal.

1.8 The principal of Hoerskool Die Burger and the Chairman of the SGB wrote to the Superintendent-General of the department requesting that he reconsider his decision not to accept the recommendation of the SGB The full contents of the letter, which is dated 16th April 1999, read:

“APPOINTMENT: MR G BEZUIDENHOUT – PERSAL NUMBER 13883551
You are kindly requested to reconsider granting permission for the appointment of Mr. Bezuidenhout as deputy principal at Hoerskool Die Burger.
The post was advertised in the 7 ABC list
Mr. Bezuidenhout had to exit the education system in terms of Section 8(1 )(b) of the Educators Employment Act 1994.
According to Dr Pine Pienaar from (sic) Regional Office there is no restriction behind (sic) Mr Bezuidenhout’s name and his file is in order.

We are aware of the restriction you have placed on the re-employment of all educators who left the system prematurely (Circular 17 of 1997 and a letter dated 23 November 1998 to all BMT members) but would like to bring the following to your attention:
1. Mr Bezuidenhout did not leave education of his own accord. He was in fact informed that his services would be terminated with effect from 1 August 1996. The reason being the termination of the Academic Aid Services.

2. Mr Bezuidenhout has been in the employment of the GDE in a temporary capacity since 1 August 1996.

3. Since his appointment in a temporary capacity at Hoerskool Die Burger from 1 January 1S98, Mr Bezuidenhout has shown vast knowledge and experience in the technical filed of study.

You know that technical teachers which (sic) are really competent and a benefit to the profession are nowhere (sic) available, not even on the excess lists.

4. Hoerskool Die Burger has a well developed and extensive technical section and since his temporary appointment, Mr. Bezuidenhout performed all the duties of a deputy principal in this area. Pupils of all cultures flock (sic) to this school. Therefore a person of Mr. Bezuidenhout’s stature is a major benefit in this regard.

5. With (sic) the interviews for the post of Deputy Principal which was conducted according to all the prescribed guidelines of the GDE, Mr Bezuidenhout was the most competent, best qualified and experienced candidate for the aforesaid post.

6. Mr Bezuidenhout was never declared in excess.

7. Mr Bezuidenhout has been part of the staff establishment from the beginning (sic). It has been verified by Regional Office several times that there is no restriction or block behind his name. In other words he is protected (sic).

8. With the additional Deputy Principal Post Mr Bezuidenhout deserves a (sic) equal opportunity to apply for such a post.

We trust this request will enjoy your favourable consideration because clearly Mr Bezuidenhout was forced to leave the Education System with compulsory termination of his service with the normal pension benefits. He never received a VSP and should be Judged with regard to the above motivation.

Mr Bezuidenhout is also prepared to pay back a nominal amount per month of the pension benefits he previously received.”

1.9 It is not clear if the Superintendent-General of the department replied to the above letter.

1.10 However, it is to be noted that the Principal of Hoerskool Die Burger and the Chairperson of the SGB also wrote to the Deputy Director General of the department on the 15th April 1999. So, the Principal and the Chairperson of the SGB wrote to the Deputy Director General on the 15th April 1999, and to the Superintendent-General on the 16th April 1999. While their letter of 15th April to the Deputy Director General was not placed before the arbitration, the reply of the Deputy Director General was, and the contents of that reply is pertinent. The reply reads:

“APPOINTMENT: MR G BEZUIDENHOUT, HOERSKOOL DIE BURGER.
Your letter requesting a meeting with Mr Maseko dated 15/04/99 has reference.
While the Deputy Director-General and the Superintendent-General may avail themselves to meet you, please be cognisant and (sic) that the department has given your request serious attention. We reiterate that the department cannot renege on decisions pertaining to re-appointment of personnel who have left the services of the department under section 8(1 )(a) and 8(1 )(b) of the repealed Employment of Educators Act, 138 of 1994 and the Public Service Act, 1994, Act 1G3 of 1997, Section 17(1)(a) and (D),
The re-appointment of Mr Bezuidenhout is not deemed to be in the interest of the state. In this regard I refer you to the terms and conditions of Employment of Educators determined in terms of section 5 of he Educators Employment Act, 1994, page 12 and 13 enclosed for your perusal.
I trust this will clarify and finalise the department’s position.”

1.11 This reply, as can be seen from the contents, deal with the concern raised by the Principal and the Chairperson of the SGB in their letter to the Superintendent-General. It is anyway common cause that the Superintendent-General adopted exactly the same view as that of the Deputy Director General.

1.12 Unhappy with the attitude of the Deputy Director General and the Superintendent General, the Principal and the Chairperson of the SGB decided to seek the assistance of the Member of the Executive Council for the Education Portfolio (“the MEC”). They wrote to the Honourable MEC on 11th May 199S. Their letter states:

“APPOINTMENT: MR G BEZUIDENHOUT _ HOERSKOOL DIE BURGER.

Regarding the above matter 1 (since the letter is signed by both the Principal and the Chairperson of the SGB, it is not clear to whom this singular bears reference) would appreciate it if you, after considering the facts in the attached letter and annexures, grant myself and Mr Bezuidenhout (the letter is not signed by Mr Bezuidenhout) a personal interview.

I followed all the necessary routes and channels in vain. Time and time again I tried to arrange an appointment with Mr Maseko (the Superintendent_General). In the end I spoke to Mr Roger Looyen, who tried to arrange a meeting with Mr Petje. Due to a personal tragedy, Mr Petje could not see us, but with Mr Looyen as a facilitator it was possible to meet with Mr Barend Wessels
After a long discussion, Mr Wessels undertook to look into the matter, because it seemed to have some merit.

He ask for three days to find a solution to our problem. The three days have expired and we still haven’t resolved the situation.

The school and the Governing Body don’t want to take legal action if it is not necessary. In fact, we suggested to Mr Wessels and Mr Looyen that we first want to discuss the matter with you because we really believe that Mr. Bezuidenhout’s case is an exception with regard to other cases e.g. the one of Mr. Piet Cornelius.

Surprisingly Mr Wessels and Mr Looyen said that it was not necessary to inform you and advised us to take the legal road. We are however, of the opinion that you must be informed because it would be unfair if a labour dispute is declared and you don’t know about it.

Advocate Greg Ally informed Mr Bezuidenhout that his case was different from all other cases but advised us to follow the appropriate channels, which we did. He was also infuriated to hear that the case and it’s outcome was discussed telephonically by the District Office and the Regional Office. We have not received anything in writing to date. Advocate Ally clearly stated to Mr Bezuidenhout that District and Regional Office had to respond in writing.
Dr Pine Pienaar advised me personally that Mr Bezuidenhout’s file was in order and that he could not see objections to his (sic) being appointed Deputy Principal.

On 10 May 1999, 7days after our meeting with Mr Barend Wessels J phoned Mr. Wessels. He phoned me back at approximately 10:00. He told me the following:

1. He had spoken to Mr Chris Klopper who responded negatively regarding this matter.

2. He also discussed the matter with Mr Greg Ally who also indicated there was no hope

3 He also confirmed that Mr Bezuidenhout would never be appointed again as a teacher after June 1998.

4 He assured me that he would forward the above answers to me in a letter.

Taking this background into consideration the following questions arise:

1. Why did the GDE allow Mr Bezuidenhout to continue his teaching career after he left the service on 31 July 1996?

2. Why did the GDE continue to pay him a salary up to date?

3. Why does his name not appear on the “excess list” of Hoerskool Die Burger? A list has been signed by the DEC and the Union Members.

4. Why is Mr Bezuidenhout not indicated as “Unprotected”?

5. Why did the GDE put Mr Bezuidenhout on my staff establishment list?

6. Why did the GDE rate Mr Bezuidenhout number one on the vacancy list 7B?

7. Why do (sic) Mr Bezuidenhout not qualify for appointment in a permanent capacity according to Circular Number 92 of 1996 paragraph 5 and Circular 128 of 1998, paragraph 1. 4. He has never had a break in his service career?

8. Why is Mr Bezuidenhout not treated in the same manner as his colleagues. Dr Martin Human and Mr Robert Tonetti who left the service on the same conditions stated in form 8(1 )(B)? Since then both these gentlemen were appointed in permanent capacities?

9. Why did Regional Office time and time again assure me that there was no block or restriction behind Mr Bezuidenhout’s name?

10. Why do the Constitution and the School’s Act ask us to promote Entrepreneurship and the Technical Field of Study and the next moment a person who qualifies is thrown into darkness? Technical teachers are nowhere to be found.

We would therefore appreciate your meeting with us to resolve the problem as we know the Mr Bezuidenhout’s expertise and competence are invaluable to the GDE and especially to Hoerskool Die Burger.” (emphasis added)

1.13 The Principal was not called to testify at the arbitration. It is clear, however, from the letters that the Principal and the Chairperson of the SGB decided to bat for the complainant. Neither the complainant, nor the union took up his case in the way that they did. Yet it is not clear if they acted as representatives of the complainant or not.

1.14 In any case, the important point is that the complainant’s case was raised with the various officials of the department, including the MEC. The arbitration was not enlightened as to whether the letter to the MEC was responded to, and, if so. what the actual response was. Both parties, took the view that it was not necessary to supply this information to the arbitration.

1.15 It Is, nevertheless, common cause that the efforts to secure employment for the complainant as per the recommendation of the SGB proved to be futile. The complainant and the union then declared a dispute with the department and registered the dispute with the bargaining council invested with the necessary Jurisdiction to entertain the dispute, i.e. the Education Labour Relations Council (“the ELRC”).

1.16 It is important to note though that the issue of re-employing persons that chose premature retirement in terms of the pension option has pose many problems for the department. These problems manifested themselves as early as 1997. On or about the 11th February 1997 the Superintendent-General of the department issued a Circular concerning the re-appointment of educators who have been retired prematurely. The Circular is commonly referred to as “Circular 17 of 1997”. It was addressed to:

“Chief Directors: Regions
District Directors
Chairpersons of Governing Structures
Principals of all Schools, Technical Colleges and Colleges of Education. Institutions.”

1.17 For purposes of this case the Circular Is very Important, It reads:

“RE-APPOINTMENT OF EDUCATORS WHO HAVE BEEN RETIRED ON PENSION PREMATURELY

1. Owing to numerous problems experienced with regard to the appointment of he above category of educators, the Department has deemed it necessary to bring policy in this regard to the attention os all offices/persons concerned.

2. Measure 2(31, Chapter B of the Personnel Administration Measures (PAM) prescribes that subject to the general policy prescriptions applicable to the appointment of educators, every re-appointment of an educator who has retired or has been retired on pension before reaching his/her retirement age shall be approved by the Head of Education or by the person to whom she/he has delegated such authority. This authority has, however, not been delegated and such re-appointments must be approved by the Superintendent-General before these educators may assume duty.

By re-appointment is meant any form of re-employment in a full-time or part-time capacity of an educator who has retired on pension prematurely in terms of any of the approved measures. Such approvals shall be applicable only to re-appointments to educator posts for which the State has accepted financial responsibility.

Measure 2(3) further stipulate a number of principles which should be taken into account in considering such re-appointments.
3. The main problem currently experienced by the Department in this regard is where this category of educators is allowed to assume duty without obtaining official approval, or before approval has been received from the Superintendent-General. This could lead to endless problems as the Governing Bodies of the schools concerned will in future, be held responsible for the remuneration of their appointments.

4. Care should be taken that applications for these re-appointments are submitted timeously, well in advance of the date of the vacancy, via the District Office to the Regional Office concerned, from where a request for reappointment will be directed to the Superintendent-General. District Offices should also motivate their requests and indicate on the applications which measures have been applied to obtain the services of any other suitable candidates.

5. Offices should also take note that in cases where educators are allowed to assume duty and applications are received after the date of commencement of an appointment or where the information as requested in paragraph 4 above is not included in an application these applications, will not be submitted to the Superintendent-General and schools Governing Bodies will have to accept full responsibility for all aspects of the administration of these educators.

6. All officers are thus hereby requested to immediately cease with this unauthorized reappointment of these educators and to avail themselves of the above-mentioned policy in this regard.

7. The Department relies on the co-operation of all officials in this regard.”1.18 Hence, the Principal and the Chairperson of the SGB were clearly aware of some of the difficulties faced by the department long before the complainant’s case surfaced. They were aware that the decision to recommend the complainant for the post could cause problems if the Superintendent-Genera! refuse to follow the recommendation. They also knew that if they failed to comply with paragraphs 4 and 5 of the Circular the possibility of problems arising is very high.

1.19 Furthermore, on 18th February 1999 the Minister of Education, in terms of section 4 of the Employment of Educators Act, 1998, issued the following notice:

“(3) Reappointment of educators who have retired or who have been retired on pension prematurely.
Subject to the general policy prescriptions applicable to the appointment of educators, every reappointment of an educator who has retired on pension before reaching his/her retirement age shall be approved by the head of education (the Superintendent-General) or by the person to whom he/she has delegated such authority. By reappointment is meant any form of re-employment in a full-time or part time capacity of ah educator who has retired on pension prematurely in terms of any of approved measures. Such approval shall be applicable only to reappointments to educator posts for which the State has accepted financial responsibility.

The principles referred to below shall be taken into account in considering such reappointments. The head of Education or the person delegated by him/her, shall decide on the re-appointment concerned after he/she has weighed up these principles and the extent to which they have been complied with.

(a) in interests of the provincial education department and the interests of the child, the school and the State

(b) …

(c) In considering a person whose services have been terminated owing to rationalization and who has not been given the option of appointment to another suitable post, the termination of his/her services shall not prejudice him/her being considered for reappointment.

(d) In the absence of sound reasons, the reappointment of persons whose services have been terminated owing lo rationalization and who have been given the opportunity of being 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 interests of the State.

By “suitable post” in this regard is meant a post of a grading at least equal to the one from the Educator concerned has been retired and which, given all the relevant circumstances of the person concerned, is such that he/she may reasonably be expected to accept appointment to such position.

(e) ….

(f) Subject to the above principles, the consideration of any reappointment of an educator shall take into account the principles of fairness and justice and the generally accepted principles relating to the maintenance of sound employer-employee relations.”

1.20 It is common cause that there are numerous educators that are designated as “excess educators”. Each of these educators earn a salary, and is linked to a particular school, where s/he is in excess of the staff complement. Instead of retrenching these educators, the department has committed itself to paying each of them their salaries and to finding each of them a suitable post within the department. Each of these educators could be transferred to any school where a suitable post becomes vacant. The department bears a considerable financial burden by keeping these excess educators while suitable posts are found for them. Consequently, each time a vacancy arises at any school under the jurisdiction of the department, the department is very keen to ensure that one of the excess educators is absorbed into the post.

1.21 The reason given by the Superintendent-General for refusing to abide the recommendation of the SGB to offer employment to the complainant as per the advertisement is because it was, in his view. not in the interest of the state. This is a perfectly valid reason, in that the complainant was already drawing a monthly pension from the department, to also grant him a salary while having many employees in excess is not, in general, in the interest of the state.

1.22 It was strongly argued on the complainant’s behalf that he has special skills in technical subjects which should be used to the benefit the learners at Hoerskool Die Burger. I find this argument to be unconvincing in the light of the fact that the vacant post is not for an educator in technical subjects.

1.23 The complainant continues to draw a respectable pension. The learners are in need of a Deputy Principal. The department has to find suitable employment for its excess staff many of whom are not productively engaged. Balancing the interests of the department with that of the learners and the complainant, I am of the view that the department is correct in holding that offering the complainant the post of Deputy Principal is not in the best interest of the state. The department has not denied the learners the services of a Deputy Principal.

1.24 Lastly, it is common cause that there are persons who have accepted the pension option and who have succeeded in obtaining full-time employment with the department. The example of one Mr Tonetti was presented to the arbitration. This fact, according to Mr Swartz proves that the department acted inconsistently when it refused to offer the complainant employment as per the recommendation of the SGB. 1 disagree. There is no evidence to suggest that the employment of those persons, such as Mr Tonetti. is not in the state’s interest.

1.25 I am satisfied that the department acted rationally and reasonably in refusing to follow the recommendation of the SGB. In the light of the facts of this case, I accept that it would not make much economic sense for the department to re-engage the complainant. I, therefore, find that the department did not commit an unfair labour practice against the complainant.

BASHIER VALLY
ARBITRATOR
18 APRIL 2000

EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD

CASE NUMBER PSES GAAR 0100 GP
APPLICANT MR GERT BEZUIDENHOUT
RESPONDENT DEPARTMENT OF EDUCATION GP
NATURE APPOINTMENT/PROMOTION
ARBITRATOR BASHIER VALLY
DATE OF ARBITRATION 6 & 9 MARCH 2000
VENUE JOHANNESBURG

REPRESENTATION:

APPLICANT MR A SWARTZ (NUE)
RESPONDENT DEPARTMENT OF EDUCATION

AWARD:

1 I am satisfied that the department acted rationally and reasonably in refusing to follow the recommendation of the SGB. In the light of the facts of this case, I accept that it would not make much economic sense for the department to re-engage the complainant.

2 I, therefore, find that the department did not commit an unfair labour practice against the complainant.

DATE OF AWARD 18 APRIL 2000