In the arbitration between:

MMAKO ML APPLICANT

and

DEPARTMENT OF EDUCATION RESPONDENT

ARBITRATOR’S AWARD

1 . DETAILS OF THE HEARING AND REPRESENTATIONS:

1.1 Mr Tholi Vilakazi (attorney) of Tholi Vilakazi and Associates, represented the applicant.

1.2 Mr Sebolai (Labour Relations Officer) Assisted by Mr Thage (District Manager), represented the respondent.

1.3 The proceedings took place on the 6th of September 2000 in Brits.

1.4 No, evidence was presented before me to suggest that Kgaogelo Middle School was affected by rationalisation, as the vacancy for Deputy Principal, was a new post that was created.

1.5 I concluded that the action by the respondent in not appointing the applicant to the position of the deputy principal was unfair discrimination.

2 . APPROPRIATE REMEDY:

2.1 The arbitrator has the power to determine any dispute that has been referred to it in terms of unfair labour practice/discrimination on reasonable terms. Furthermore, the arbitrator who performs the function normally performed by the Labour Court may make any appropriate order that is just and equitable in the circumstance (see Section 50 (2) of the Employment Equity Act).

2.2 It is common cause that the position is still vacant It is furthermore common cause that had the applicant been appointed she would have been employed at a total remuneration package of R81, 045,00 per annum.

2.3 In my view it is only just and equitable/reasonable that the aplicant be appointed retrospectively from 05 October 1999, as from that date she would have commenced duties.

3 . AWARD:

3.1 In the circumstances, I make the following order:

3.1.1 The decision by the North West Department of Education, not to appoint the applicant to the position of Deputy Principal at Kgaogelo Middle School, was unfair and constitute unfair discrimination.

3.1.2 The respondent is ordered to appoint the applicant to the position of Deputy Principal at Kgaogelo Middle School at an annual salary package of R81, 045,00, retrospectively from 05 October 1999.

3.1.3 Paragraph 2.1.2 above, is conditional upon the applicant reporting for duty within ten (10) working days from the date of the award.

3.1.4 Should the applicant not be interested in the appointment, the respondent is ordered to pay the applicant twelve (12) months compensation equivalent to R81, 045,00, to be paid on or before 31 October 2000. The applicant will have to indicate within five (5) working days from the date of the award whether she opts for compensation in lieu of appointment

3.1.5 I make no order as to costs

ADV RUSSEL MLETSANE
ARBITRATOR

DATED: 19 SEPTEMBER 2000

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES 0872 NW
APPLICANT ML MMAKO
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR DISCRIMINATION
ARBITRATOR ADV RUSSEL MOLETSANE
DATE OF ARBITRATION 06 SEPTEMBER 2000
VENUE BRITS

REPRESENTATION:

APPLICANT MR THOLI VILAKAZI (ATTORNEY)
RESPONDENT MR SEBOLAI, MR THAGE

AWARD:

1 In the circumstances, I make the following order:

1.1.1 The decision by the North West Department of Education, not to appoint the applicant to the position of Deputy Principal at Kgaogelo Middle School, was unfair and constitute unfair discrimination.

1.1.2 The respondent is ordered to appoint the applicant to the position of Deputy Principal at Kgaogelo Middle School at an annual salary package of R81, 045,00, retrospectively from 05 October 1999.

1.1.3 Paragraph 1.1.2 above, is conditional upon the applicant reporting for duty within ten (10) working days from the date of the award.

1.1.4 Should the applicant not be interested in the appointment, the respondent is ordered to pay the applicant twelve (12) months compensation equivalent to R81, 045,00, to be paid on or before 31 October 2000. The applicant will have to indicate within five (5) working days from the date of the award whether she opts for compensation in lieu of appointment

1.1.5 I make no order as to costs

DATE OF AWARD 19 SEPTEMBER 2000