In the arbitration between:

SADTU obo T S MABUYA APPLICANT

and

FREE STATE DEPARTMENT OF EDUCATION RESPONDENT

ARBITRATION AWARD

1 . INTRODUCTION

1.1 The arbitration was heard on 17 October 2000 at Katleho Building in Bloemfontein. The department was represented by Mr T B I Tleru and the Applicant was represented by SADTU through Mr F Hugo.

1.2 The issue that was to be arbitrated upon was defined as the status of the post as held by the Applicant. At the start of the arbitration the parties began to grapple with their understanding of the nature of the dispute. After some deliberations and consultation with the ELRC it emerged that the status of the post is defined in the context of the inter-provincial redeployment process. This is as a result of the fact that the Applicant held a post in the KwaZulu-Natal Province and had apparently applied for redeployment to the Free State Province. The arbitration has therefore to determine if the Applicant has therefore to determine if the Applicant does hold a post in the Free State Province as per the application for redeployment.

1.3 The parties in terms of the process agreed that they will not lead oral evidence but to present the documentary evidence. To this end they will also present arguments that together with the documentary evidence I should consider in making my determination.

2 . THE APPLICANT’S ARGUMENT

2.1 The Applicant was from 1997 employed by the KwaZulu-Natal Department of Education and Culture. She approached the Free State Department of Education in October 1997 in attempt to request transfer to the Province from KwaZulu-Natal. The basis for such an approach to the Free State was informed by the need to be closer to her family since her husband and children are in the Free State. She was accordingly advised that in order to be placed in the Free State, she will have to be placed on the redeployment list of the Free State. For this to happen, she will have to get a letter of release from her present employer. With this letter she will be placed on the computer of the provincial redeployment agency (PRA) in the Free State.

2.2 The obtaining of the release letter is dependent on having an institution that will host the Applicant. In order to get such an institution, she contacted a certain Joe de Beer who is the representative of the PRA. The outcome of this contact was that in Botshabelo there is a school known as Lebelo Primary School that needed a teacher. Armed with this information the Applicant on 24 February 1998 filed an application form for secondment. The Applicant was given a recommendation by the regional office of KwaZulu-Natal in North Durban. Such was signed on 2 March 1998. The curriculum vitae of the Applicant was left with the PRA. The Applicant was released by her employer to the Free State in March 1998. On 23 March 1998 there was a communication from Mr J de Beer to the Applicant to the effect that her secondment to Lebelo has been approved. The principal of Lebelo insisted on interviewing the Applicant and following therefrom, the principal informed her that she will offer English in 1998 and commercial subjects in 1999. However, on 1 April 1998 the principal informed the Applicant had changed his mind and no longer wanted the Applicant in the school.

2.3 The Applicant subsequently inquired from the people at the PRA who she was dealing with and was informed that the principal cannot take somebody in her place without the consent of the PRA. She was asked to leave the matter as an internal departmental matter. In 1999 she was due for maternity leave, to this end she contacted a certain Regina Vorster who advised her to fill a leave form, but since she was not reporting anywhere, she had to be covered by another leave form and submitted to Regina Vorster.

2.4 Towards the end of 1999, she contacted the Head of Department (HOD) who undertook to look into the matter and call her into a meeting. Later she was told that it is not necessary for her to attend the meeting but will be responded to. The HOD in his response indicated that the Applicant “.. could not be suitably placed in any post …”

2.5 At the time of the redeployment the Applicant was on a permanent post. Since being released from KwaZulu-Natal, she has been receiving salary from that province. This happened from April 1998 – January 1999. The Free State did not re-imburse the KwaZulu-Natal. She has not been receiving salary from May 1999.

3 . THE DEPARTMENT’S ARGUMENT

3.1 The Department indicated that the inter-provincial transfers have to be approved by the respective MEC’s of the provinces concerned. Reference was made to the definition of the employer in the Employment of Educators Act and the issue around post establishment as per the Education Policy. In the process of the redeployment of the Applicant, the correct procedures were not followed.

3.2 It was indicated by the employer that at no stage was the Applicant legally re-deployed into the Free State. There is no evidence of the provincial communication between the two provinces. The Department indicated that they cannot be held responsible for the actions of individuals who act without authority. Since there was no service rendered to the Free State, there was no payment by the Free State. The agreement between the Applicant and the officials is invalid and illegal.

4 . DISCUSSION OF THE ARGUMENTS

4.1 In discussing of the arguments of both parties, it is important to look at them in the context of the functions of each stakeholder in education and the constituted bodies to perform certain functions. In the presentation, the Applicant indicated that one requirement for her to get a letter of release was to present a school that will host her. It is clear that the approval or otherwise of the application for transfer is based on the assumption that the Applicant has jointly with the other role players finished every step that is required to have the said school accepting her as part of the establishment. However, from the presentation it is correct to say that was not the case.

4.2 The role of the PRA is critical to this matter. Their role (PRA) is to facilitate through compilation of the data base access by schools that require teachers to get them. Such was admitted by the representative of the Applicant. At no stage does the PRA make any appointments. The communication between the Applicant and the chairperson of the PRA is clearly a misrepresentation of the facts as per their functions.

4.3 Whereas the reason for the Applicant is covered by section 5(1)(e) of the regulations, the essence of the section is that such a process shall have to be facilitated by a multi-party structure. The specific section of the regulation does not give such an established structure the power to appoint such educators. This one concludes is as a result of the appreciation of the employer as defined and that such a process should not be interpreted as undermining the functions of the employer in so far as the appointments are concerned.

4.4 In order for the Applicant not to be held by administrative processes, it was significant that her salary be paid by her previous employer until such time that the transfer of all her documentation is complete. You will therefore understand that such completion shall be realized once a person who has the power to appoint has done so.

4.5 The Department indicated that it will not be held responsible for the misrepresentation of the facts by the officials. However, it must be mentioned that the said officials are the embodiment of the Department. It must be further indicated that the communication was even made more official by the fact that it was on the departmental letterhead and the department does not deny that the contact persons as per the letter are their officials. It is very clear that any official has to work according to policies and any transgression of such does not make such an official less of the departmental representative.

4.6 It is correct to conclude therefore on the basis of the presentation and the documents presented that both parties have a share of blame to accept, clearly the Applicant was misled and did not follow the process correctly. On the other hand the Department through its representatives who handled the matter created the expectation on the Applicant that she has been admitted on the establishment of one school in the Free State.

5 . DETERMINATION

It is accordingly determined that in so far as the transfer in dispute is concerned that both parties should re-start the process and follow correct procedures and relevant people be put in charge of the process.

_______________________
ARBITRATOR
HANS THABO NGOBENI
Date : 28 October 2000

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES 01/2000 0112 FS
APPLICANT SADTU obo T S MABUYA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE RE-DEPLOYMENT
ARBITRATOR HANS THABO NGOBENI
DATE OF ARBITRATION 17 OCTOBER 2000
VENUE BLOEMFONTEIN

REPRESENTATION:

APPLICANT SADTU through Mr F HUGO
RESPONDENT MR T B I TLERU

AWARD:

It is accordingly determined that in so far as the transfer in dispute is concerned that both parties should re-start the process and follow correct procedures and relevant people be put in charge of the process.

DATE OF AWARD 28 OCTOBER 2000