FOURTEEN YEARS

..a travesty of justice installment TWO

FOURTEEN YEARS

SECOND INSTALLMENT

When I received my salary, I was underpaid by R2000.

The Principal, end 2009, fired all three of his secretaries, one of whom had been there 18 years, two ground staff (one of whom had been at the school for 38 years!) and two educators one of whom was the Staff representative on the GB.

1. The ELRC (Education Labour Relations Council) made an appointment for me for an Arbitration hearing 08/05/10. At this meeting, the Education Department official stated that he had very little information regarding the dispute and requested a second date. He was fined R2000 by the Arbitrator Mr. O.

2. Every single lawyer that I contacted for assistance wanted to know where my ‘contract’ was. I did not have a contract. The cheapest lawyer I could find requested a R5000 fee to attend the Arbitration hearing. I did not have that money as I was left high and dry without any income. I had requested information regarding Life Science post availability from the inspector, but received a negative response. In fact he accused me later in a letter to the Ed. Dept that I saw him as ‘an employment agency’.

3. My point of defense was based on the term UTE. ((“As I understand the situation you were employed as a UTE….that being the case your appointment WAS TERMINATED at the end 31.12. 09)) My internet research revealed that the term UTE (Unprotected Temporary Educator) was OBSOLETE and held no legal jurisdiction! It was a term used to REDEPLOY educators who were declared in excess due to the implementation of the recent PPN (Post Provisioning Norms) which were/are used to determine the ratio of pupils per teacher in the classroom..at one stage being 35 - 1. This was a blatant money saving scheme of the Education Department because they would only pay the teachers that fitted this framework. For example if there were 800 learners in the school, the Ed. Dpt would pay salaries of 23 Educators. There were 51 educators on the staff of my previous school, Ridge Park College. The excess teachers had to be deployed to other schools - hence they were labeled UTE, or retained in the school via the Governing Body system. After 2001 this term became legally obsolete but the ED. Dept. continued to use it to employ temporary educators. i.e. it held no legal jurisdiction. Secondly the term was entirely UNCONSTITUTIONAL. Some educators were held as a UTE for as long as SEVEN YEARS. As a matter of interest, what was also bizarre at that stage, was that the Government did NOT RECOGNISE teacher experience of GB employees.

4. Prior to the hearing I contacted the Principal and asked him if he had any idea where my ‘contract’ was. He told me it was with Mr. H at the finance office at Truro House.

5. Nobody at Truro house could find my ‘contract’. After about half an hour waiting, Mr. H typed something into his computer and presented me with ‘a contract’ and handed me a pen to sign it. I refused. My first impression of this ‘contract’ was that it was fraudulent. I did not realise its importance and did not take it with me to the arbitration hearing. This form was dated the day it was printed 06.05.2010.

6. I had set up my computer to record proceedings. I was feeling somewhat intimidated in the hearing, and the Ed. Dept official Mr. S vehemently denied that I was employed ‘permanently’ and that I knew that I was being employed temporarily. (!) I claimed that I was on probation for a year, and hence my permanent status still required affirmation. I mentioned that I took up the post IN GOOD FAITH, due to the offer of a permanent post made by the Principal in the interview meeting. Due to the untenable situation in the school, I had requested a transfer and had no response. He had my entire educator files with him. I could not fully remember which forms I had filled in but remembered that I had filled out an Education Department application for a Life Science post….and that I had no idea what the first form was about other than that it would register me for receipt of a Government salary. Mr. S. did not present any of my application forms in the hearing. Mr S claimed that I had not been dismissed as I had been employed in FIXED TERM CAPACITY which reached its end date. The Arbitrator asked him to produce the FIXED TERM CONTRACT. Mr. S stated that he ‘could not find it’, that he had all of my applications in my educator file, and would continue looking for it post hearing. From my understanding in a FAIR HEARING, the Arbitrator should have IMMEDIATELY declared the hearing IN MY FAVOUR as there was NO PROOF OF CLAIM!

I queried the wording of the email from the school inspector stating that ‘that being the case your contract WAS TERMINATED on 31.12.09. You do not ‘terminate’ a fixed term contract. The implications of this point fell on deaf ears.

All reference to disruptions within the school and the conditions that lead to my sickness, were simply dismissed. I had presented the Aribrator Mr. O. with an updated doctor certificate.

7. Once on sick leave, I no longer had any professional duties to attend to as my thought processes were severely disrupted and I had much difficulty in maintaining coherence. While I felt somewhat ‘better’ at the time of the Arbitration hearing, I cannot claim I was ‘fully recovered’.

8. I was most distraught to be told immediately post hearing by Mr. O. (who was quite vehement) that “you are not going to get anything from this meeting”.

9. The results of the hearing were not released within the stated time period.

10. I phoned the ELRC and made queries as to this anomaly.

11. I no sooner put the phone down I received an email from the ELRC.

12. The subject in the address line referred to the case no, and the initial body of the letter was addressed to me. I later discovered that the main section of the email was NOT addressed to me. I skipped straight down to the attachment in the email which also had the correct case no.

13. I was AMAZED to discover that I had WON the case and was awarded R52000!! I congratulated the ELRC via phone on ‘allowing justice to prevail’.

14. After a further two weeks I approached the Ed. Department and encountered Mr.K. I requested procedure for claiming the award. He said he knew nothing of this award and that he would investigate and get back to me. Not hearing anything more after a week I went back to speak to him.

15. He took me up to the top floor to the office of the ED. Dept. Rep at the Arb hearing (Mr.S) plus there was a department official whom I had never seen before (a Mr. St who was white) and was told that ‘You have the wrong award”.

16. I was then presented with the FAXED award which DISMISSED THE CASE.

17. Needless to say I was in deep shock!! Then Mr. St stated that “you could easily have fiddled the first award”

18. This lead to ‘an emotional meltdown’ and I raged at Mr. St non stop for about 15 min!! I had a complete relapse of my illness and had to consult with Professor G (who had lowered his fees) on advice from my doctor. This was the straw that broke the camels back….and I felt it was no longer possible for me to teach I.e. my right to earn a living from my profession was made impossible via this incompetence.

19. A few days later, I noticed that the TIME on the fax was almost 15 minutes AFTER the award email. The award email was sent to ALL PARTIES. The FAX was only sent to Mr. S. Quite clearly to any sane person, there had been some nefarious activity. It is obvious that someone in the Ed. Dept. had disagreed with the award and changed it. The preamble to the awards were identical except for the remaining 4 pages. I felt that the second award in particular was based on a false premise I.e. that I was employed as a UTE…a term which held NO LEGAL JURISDICTION.

((Due to this case all reference to UTE by the Education Department vanished))

20. The only advice I could get via free legal consultations was that I had to ‘choose one’ of the awards and contest that….or simply make the first award ‘an order of the court’. I felt that NEITHER PROCEDURE was acceptable, as there had been a GROSS VIOLATION OF ARBITRATION PROCEDURE and that this matter had to be addressed and hence wanted to present BOTH AWARDS to the judge.

21. I took both awards and went in to see Legal Aid. I was told that I had to take the awards on REVIEW to the LABOUR COURT and that Legal Aid did not assist with review applications. Not being able to afford a lawyer I decided to represent myself and made application. I obtained a review template from the then Registrar a Mrs B. I received no response from the Education Department, but an email from Lawyers representing the ELRC stating that they were opposing the application.

22. Towards the end of 2010 I was feeling somewhat overwhelmed with legal application (getting fax no’s wrong/dates wrong) and approached Legal Aid for a meeting to explain aspects of procedure. I was then told that they were willing to take up my case!!

23. I discovered that the ELRC had lost the tape record of the hearing! Legal Aid confirmed that I could submit my recording for transcription.

24. After consulting with Mr. V after submission of the transcription, and being told that the case had VERY LITTLE CHANCE OF SUCCESS, I began to feel that I was not being assisted, but hindered. I found it difficult to remember the advice given and felt somewhat confused post consultation a few times. I made my concerns known with admin at Legal Aid Mr. M who informed me that I should consult via him. After the first consultation he told me I had to revert to being assisted by Mr. V. I then requested that I be allowed to take a recording device into our meetings due to my concerns. Mr M. flatly refused stating that if I did not like his decision that I ‘should take my services elsewhere’. This happened via email so there was a record of his statements. I hence collected my legal files and returned them to the Labour Court rooms. During this time (2011) I received an email from Mr.K of the Ed. Dpt. informing me that my award was available for collection!! I did not follow this up due to the catastrophic affect of the award debacle and that the debt and trauma of recent events had COMPOUNDED the issue. In a later Arbitration hearing the Ed. Dept. representative claimed that the Ed. Dept. had never sent such an email!!

25. Via concerns of the then ELRC secretary Mr. B a meeting was arranged via a newly formed legal assistant body Probono.com for me to consult with lawyers based in Umhlanga Rocks to discuss an ‘out of court’ settlement.

At this meeting, the Education department stuck to the offer of the first award (it was now almost 3 years later 2012) and I felt that the award was no longer adequate. If the award was honoured timeously I would have been extremely grateful and would have had leeway to get my life back on track. I had fallen into areas with rent (after initially being financially assisted by my son and where I began to earn a subsistence income from sales of my fabric wallets at fleamarkets) and faced eviction not to mention bank debt!! In a pre consultation meeting the lawyer stated a condition of acceptance of the outcome that I did not make further legal procedure or that I spoke to the press. An offer of R80,000 was received via this lawyer. Given these conditions (which was made verbally and in private) I felt this offer to be inadequate.

26. After explaining my refusal to Probono.com I was BANNED FROM EVER USING THEIR SERVICES AGAIN as the lawyer DENIED FLATLY that he had ever made such a condition of acceptance. Not only that, I discovered much later that he had no legal jurisdiction to have made those conditions!!!

27. I put out a call via FB for contingency lawyers to take up my case. I had a response from a RASTA Sab = a lawyer who appeared to be very concerned and sympathetic. He consulted with a colleague Mr. DL and they decided that they would help me. These lawyers sat with my case for TWO YEARS after which I received an SMS stating that “We have tried everything and are not able to assist”.

Once again I collected my papers and returned them to the court rooms.

28. 2013 July after a court hearing regarding eviction where the judges opening statement was ‘By what date are you able to vacate the premises?’ I was compelled to vacate my flat. I had been living in this flat for 16 years.

29. In 2014 via a friend, it was arranged that I could have a free consultation with a top Durban advocate Mr. JP. This consultation lasted two hours where he drew the dots as to who was behind the award fiasco and said that he would be too happy to assist. Two weeks later I received an email from him telling me my case had no possibility of success!!!

30. Finally a court date was set for November 2014. THREE education dept. lawyers arrived out of the blue!! The Judge consulted with all parties prior to the court room procedure and stated that there was nothing he could do about the awards (I.e. that he could not issue a new award and there was nothing he could do about the existence of both awards) and that he was going to send me back to arbitration. But but but but but but!!! WTF!! I was not given any choice. In the court rooms I made the statement that this decision was FURTHER PUNISHMENT, it was not ‘relief’ and that he was sending me back to arbitration with an organisation that had proven to be incompetent!! He declared both awards null and void.

31. The ELRC set a date 20.01.15 for an Arbitration hearing.

32. This was presided by Mr. Vd, and after waiting in the assigned room for almost an hour, Mr. Vd informed me that they (him and the Ed. Dept. official Mr DB) had been waiting in the other room I.e. they had been in consultation with one another.

33. The first thing I requested from Mr DB was for him to present the FIXED TERM CONTRACT. As there was NO FIXED TERM CONTRACT the onus was switched onto me to prove that I was unfairly dismissed.

35. I lodged a complaint with the ELRC and they replaced Mr. Vd with Mr. AD.

36. I attempted to contact various individuals as ‘witnesses’ notably my Doctor who could not attend as there was too short a notice and he had to be in theatre on the required date. I tracked down Professor G who was not in at the time of my personal delivery of the subpoena. The secretaries would not take possession of it and requested I return the following day. On presentation at Professor. G premises, I was told that there had been a robbery, that all their computers were stolen, and that Professor G had left for Vietnam!!!! I faxed a subpoena to the Life Science Educator who was ‘demoted’ for me to take up her place. I phoned the school and it was confirmed that she had received the fax.

37. There were two FIVE HOUR SESSIONS with Arbitrator AD.

38. Due to the switch of onus, I placed greater emphasis on the role of the Principal in my appointment.

A TRAVESTY OF JUSTICE THREE TO FOLLOW