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SAOU OBO SCHOEMAN AND OTHERS vs DEPARTMENT OF EDUCATION FREE STATE
FORUM:ELRC
ARBITRATOR:JAJBHAY M

CASE NO:GAAR 010091

DATE :23 MAY 2000

Jurisdiction

Matter not res judicatory because another arbitrator has made an award compelling certain payments to be made to Applicants. Present case concerned with their substantive rights to the posts in question not who or what amount should be paid for past work

Appointments and promotions

-SGB’s of various schools recommending a number of applicants for appointment after rejecting “A – list” nominees provided by Department. Applicants “permitted” by SGB’s to being work on understanding that appointment a formality partly due to HOD’s “recalcitrance” in making these appointments or communicating with schools.

- HOD’s “recalcitrance” partly justifiable given the failure by SGB’s to take transformative values seriously in selection process.

The unilateral “appointment” by SGB’s, despite lack of proper and prompt communication by HOD otherwise, unlawful, especially in light of express circular from Department prohibiting the purported “appointment” by SGB’s or schools

- Failure of Department to recognize or fund these appointments not unfair conduct

ARBITRATION AWARD

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  1. In terms of pre-arbitration agreement, entered into orally, and subsequently confirmed on the record, the representatives of the parties hereto agreed as follows:

1.1The bundle of documents submitted by the Union, are for the purposes of evidence what they purport to be. Unless specifically denied, I was able to utilise the information reflected in the documents, for the purpose of evidence.

1.2The parties would lead any oral evidence that they would deem necessary in order to fortify their respective positions.

1.3In terms of Annexure “B” to the arbitration agreement circulated by the Education Labour Relations Council Resolution 7 of 1997, the arbitrator’s terms of reference which are applicable to the present matter are recorded as follows:

”The terms of reference of the arbitrator shall be to rbitrate any dispute referred to him, and to award remedy which he considers fair and/or appropriate

in order to settle the dispute.”

  1. In terms of the documents submitted to me, I understood my terms of reference and findings to be as follows (I quote directly from the documents):

2.1Mrs S. Schoeman:

“Permanent appointment and remuneration as such from 1 July 1999”.

2.2Mrs A. Marx:

“(a)Confirmation of temporary appointment from 1 April 1999 up to 30 June 1999 and remuneration as such.

(b)Permanent appointment and remuneration as such from 1 July 1999.”

2.3 Mrs C. Schoeman:

“Confirmation of temporary appointment from

(a)25 January 1999 until 31 March 1999;

(b)1 April 1999 until 30 June 1999;

(c)1 July 1999 until 31 December 1999;

(d)1 January 2000 until the post is filed by a redeployed educator or in accordance with the stipulations of Resolution 6/1998, and payment as such, less R16 908,00 paid by the Department during June 1999.”

2.4Mrs M de Jager:

“Confirmation of temporary appointment and remuneration as such for the period 1 October 1998 until 31 December 1998.”

2.5Mrs S Van der Spuy:

“Confirmation of temporary appointment and remuneration as such for the period 10 May 1999 until 29 October 1999.”

  1. The facts for each of the above individuals can be described as follows.
  1. Mrs. S Schoeman

4.1Despite several requests by the Union, the latter had not received any response with regard to Mrs S Schoeman’s appointment at the Vaalpark High School. Mrs S Schoeman occupied the post since April 1999. This post was advertised in the Closed Vacancy List which was issued in May 1999 for appointment 1 July 1999. The Department had attended to matching according to a Management Plan, however no suitable candidate was identified to be placed on the A List.

4.2On the 21st of June 1999 the Principal at the Vaalpark High School requested the District Office to supply him with the B List. Thereafter, the School Governing Body considered the candidates on the B List, and recommended Mrs S Schoeman for appointment.

4.3During or about the 20th of July 1999, the school requested the Department to extend Mrs S Schoeman’s temporary appointment from 1 July 1999 until her permanent appointment. Towards the end of July, the School Governing Body was informed that the nomination of a B candidate has been referred to the Head Office since three educators in excess in the Sasolburg district have been identified with the relevant profiles. According to the Principal of this school, as well as Mrs S Schoeman, it was at all times thought that in terms of the Department’s Management Plan for Closed Vacancy List No. 2/1999, read together with the procedures stipulated in Resolution 6/1998, Mrs S Schoeman could reasonably assume that she would be appointed for the relevant post.

4.4In terms of a letter dated the 1st of October 1999, from the Director: Human Resources, the recommendation of the School Governing Body had not been accepted because the School Governing Body was requested to consider educators from the excess list as was provided by the District Manager’s office. In evidence, Mrs Schoeman informed me that she was paid for the outstanding period, and that she had a fixed term contract which would terminate at the end of June 2000.

  1. Mrs. A Marx

5.1In this particular matter, Mrs Marx stated that she applied for a post at Tweespruit Primary School. The post was advertised in the Closed Vacancy List (2.1999). The school had received the A list from the District Office. During or about 20th July 1999, the District Manager was informed that one of the candidates was accepted at a post at another school and that the other candidate did not qualify for the post.

5.2Thereafter, the Governing Body of the school applied for the B list to be submitted to them. No response was received. During August 1999 the Governing Body repeated their request for the B list to the District Office. Apparently no response was received either. Then on the 9th of November 1999 the Governing Body requested the Department to appoint Mrs Marx from the B list with effect from 1 July 1999 in a permanent capacity. According to the Principal no response was received to this request.

5.3Mrs Marx was occupying this particular position since April 1999. Her position was not confirmed by the Department.

  1. Mrs C Schoeman

6.1This individual was employed in a temporary capacity at the Onze Rust Primary School. As a result of a teacher, i.e. Mrs S Honiball becoming ill, Mrs S Schoeman acted as a relief for her duties. From time to time, applications were made for the extension of Mrs C Schoeman’s contract, however according to the Principal there was no response from the Department. Mrs C Schoeman apparently received payment in the sum of three months salary from the Provincial Administration Free State.

6.2She did not receive a written contract, and there were no terms and conditions agreed upon between her and the Department.

  1. Mrs M de Jager and Mrs S Van der Spuy

7.1In both of the above instances the facts are almost identical and can be summarised as follows. The Governing Body at the Harrismith High School appointed the above teachers in certain capacities in order to provide the services of a teacher at the Harrismith School. The District Office advertised the post and the above educators were nominated. There was no response that was received from the District Office or the Head Office. It was alleged that the Governing Body had a reasonable expectation that these appointments would be approved in terms of the relevant legislation.

7.2It was alleged on behalf of Mrs De Jager that she had rendered services as a temporary teacher for the period between 12th October 1998 and 31st December 1999 and she did not in fact receive a salary. As far as Mrs Van der Spuy was concerned, the allegation was that for the period that she was rendering a service, i.e. 10 May 1999 until 29 October 1999, she did not receive any salary.

7.3According to the Principal at this school, he believed that there was a reasonable expectation that Mrs Van der Spuy would be appointed by the Department. This was not so. The individuals were paid by the School Governing Body on the expectation that once they would be permanently appointed, the School Governing Body would be refunded.

  1. In all of the above circumstances, the following facts are common and need to be set out here:

8.1The positions were recommended by the School Governing Body, and probably in the best interests of the school, were not ratified or adopted by the Head of the Department in compliance with the legislation;

8.2The principals acting as such, had in some instances directly, and in other instances indirectly, informed the educators that the ratification process is mere formality;

8.3At all material times, none of the educators referred to herein, received any written communication from the Head of the Department, informing them that their positions were in fact intact. (Mrs S Schoeman was informed at a later stage);

8.4There were no appointment letters saved for Mrs S Schoeman:

8.5The circulars that I will refer to hereinafter, were in most instances circulated to the relevant parties;

8.6In all instances, it was specifically testified that the Head of Department makes the final appointment:

8.7There was no written contract between the employer, i.e. the Department of Education Free State and the respective employees.

  1. In terms of the National Education Policy Act 27 of 1996:

“The policy contemplated in section 3 shall be directed toward –

(a)the advancement and protection of the fundamental rights of every person guaranteed in terms of Chapter 2 of the Constitution, and in terms of international conventions ratified by Parliament…”

  1. The procedure for the rationalisation and redeployment of educators in the providing of educator posts was captured in an agreement between the protagonists in Resolution 6/1998. The principles governing the procedure makes provision for the fact that all educators who were affected by the rationalisation and redeployment process would be treated fairly. The allocation of educator posts to institutions in terms of the process must take into account the regulations determined by the Minister, after consultations in the ELRC. A provisional task team (PTT) was established for each provincial education department. The PTT had to perform the following functions:

“4.2.1 Monitoring the co-ordination and implementation of the rationalisation and redeployment process in a provincial education department.

4.2.4Resolving disputes between the parties that may arise and which relate to the general application of this agreement and the model for post provisioning, (i.e. Implementation of the rationalisation and redeployment process).”

  1. In terms of the Employment of Educators Act 76 of 1998, the appointment of any person or the promotion or transfer of any educator in the service of a provincial Department of Education shall be made by the Head of Department. The Head of Department may only decline the recommendation of the governing body of the public school or the Council for Further Education and Training Institution under circumstances set out in Section 6(3)(b) of the Employment of Educators Act 1998.
  1. In terms of the South African Schools Act 84 of 1996, the governing body of a public school must recommend to the Head of Department the appointment of educators at the school.
  1. In terms of the Human Resources Circular No. 1/1998, that was distributed to persons including inter alia principals of public schools, which circular specifically stated that the information had to be brought to the attention of all personnel concerned.

“No post may be filled without the prior approval by the Head:

Education. Requests for the filling of each post must be submitted via the relevant District Office….”

  1. The Human Resources Circular No. 29/1999 communicated inter alia to principals of all schools, which specifically stated that the information contained in the circular, be brought to the attention of all personnel concerned stated:

“1.The appointment at schools, without prior approval from Head Office, is a major problem that the Department is faced with at this stage. This practice cannot be allowed. Appointments are still being made by SMD’s and Principals without obtaining prior approval from Head Office. a decision was taken that should any person/institution effect an appointment without written approval in advance, s/he will be half responsible for the salaries of such appointments….

  1. It should also be highlighted, that no appointment at all will be made at institutions without the prove (sic) of prior approval and letter of appointment. Should any vacancy occur, a request to fill the post should be submitted to Human Resources within 7 working days after the post became vacant.”
  1. In terms of a memorandum circulated to Chief Directors, Directors and District Managers,

“No appointment will be made without prior written approval by myself (Head Education) with immediate effect.”

This was circulated on the 10th of June 1999.

  1. At the commencement of the proceedings Mr Tleru acting on behalf of the Department indicated that he was raising a point in limine in that this particular matter in its general principle was attended to by a fellow arbitrator in an arbitration award and the issue with regards to the arrear salaries has been dealt with already. This matter has been taken on review, and as such this particular forum does not have the jurisdiction to entertain this matter. As I understood the argument, Mr Tleru was of the opinion that this matter was res judicata. After entertaining oral argument from both sides, I determined that for reasons that I will supply in the course of this arbitration award, the application was dismissed. These are my reasons. This forum does have the jurisdiction to entertain the particular concerns of the individuals. The order of the arbitrator in the previous matter was with particular reference to the facts before him. They were neither final nor definitive with regards to the merits of the present matter. The fact that that arbitration order is a subject matter before the Labour Court in the form of a review does not impact on the consequences in relation to the present Applicants. Neither the cause of action nor the parties in the matter determined in the previous arbitration when compared to the present arbitration are the same in all material respects.

See:African Farms and Townships Limited v Cape Town Municipality 1963 (2) SA 555 (a) at 564:

Le Roux v Le Rou 1967 (1) SA 446 (A) at 463;

Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) at 551.

  1. The decision to be determined by me in the present matter, has not been either legitimately or rationally pronounced by any tribunal. The fact that a matter concerning the salaries of certain individuals may be before the Labour Courts in the form of a review does not prohibit me from continuing with the present matter. In the light of these circumstances, I dismissed Mr Tleru’s application.
  1. In terms of the procedure for rationalisation and redeployment of educators as regulated in Resolution 6/1998, read together with the Employment of educators Act No. 76 of 1998, it is clear that there is a decisive break from the past, which was unacceptable in the education sector. It constitutes a decisive break from a culture of separate education and racism to a system that protects a culture of openness and democracy and universal human rights for South African learners/educators of all ages, classes and colours.
  1. There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the education of learners is premised. The past was pervaded by inequality, authoritarianism, and unequal education. The aspiration of the future of education in our country is based on what is tabulated in Section 29 of the Constitution of the Republic of South Africa Act 108 of 1996.
  1. The objective for the procedure for rationalisation and redeployment of educators is set out as follows:

“These procedures provide for the rationalisation and redeployment of educators within educational institutions to achieve equity in educator staff provisioning in the said institutions in terms of approved policy on educator post provisioning.”

  1. The objectives are spelt out in what is commonly known as the Morkel Model. In terms of this document.

“These inequities are based on historical imbalances and pertain to certain learning areas that are mainly offered in advantaged schools in certain communities and also in respect of the provision of facilities required by some of these learning areas. These inequities should therefore be addressed separately by head of education department.” (Emphasis added)

  1. Mr Delport, acting on behalf of the Union and its members, invited me to interpret the Acts as well as the regulations in a purposive manner. As I understood his argument, he submitted that in acting in the manner in which it did, the Governing Body of the respective schools were not at fault. The Governing Bodies made their recommendations, and as a result of the recalcitrant attitude of the Department, these nominations were not confirmed. The Employment of Educators Act of 1998 in my view contains in material respects a new fundamental commitment to human rights with regards to learners/educators and is not merely a co temporisation and incremental articulation of previously accepted and entrenched values shared in our society. When viewed in their contextual setting, the provisions of the Employment of Educators Act 1998 afford the Head of the Department of Education support for the basic premise that the touch stone in the procedure to be adopted is a fair one in the appointment of an educator. The underlying enquiry envisaged is that the Head of Department has to confirm that there has been no irregularity or illegality and that there is no departure from the formalities, rules and principles of procedure according to which the Employment of Educators Act 1998 is set out.
  1. It is precisely this act to be determined by the Head of Education which expressly guarantees to every applicant a fair opportunity. If such a fair opportunity is denied to an applicant, then it can be bound to be an unfair process ensuing in the setting aside of the recommendation. Coming to terms with the past inequalities in our educational system is a difficult and, for some, painful matter. We must close the book on the past, but before we begin to do it, we must not suppress it. A new democratic order cannot be based on the continuation of unrepresentative institutions which, by their very nature, lack impartiality and representivity and cannot continue as our common patrimony.
  1. A school is a communication centre for a whole range of values and aspirations of a society.