FOURTEEN YEARS FIVE

My travails through the legal system South Africa

FOURTEEN YEARS FIVE

PROBLEMS WITH LEGAL PROCEDURE.

I HAD TAKEN MY IMAC INTO THE PROCEEDINGS AND RECORDED EVENTS.

Post this first hearing an email to the ELRC to replace Arbitrator AD was ignored.

IRREGULARITIES:

1. An education department witness sat in on the hearing for the entire afternoon session of the first hearing. I was not told who she was or why she was there. I recognized her when she appeared in the second hearing as witness. In the first hearing there was a point when the Ed. Dept. rep Mr DB made a query regarding ‘miss’ or ‘mrs’ and she replied ‘mrs’. This is the only proof I have of her presence in that first meeting I.e. it is on record.

2. The second Ed. Dept. witness (the HOD in the interview meeting) could not remember ANYTHING of the discussion that took place in the interview! All she could ‘remember’ was that I had been appointed as a UTE as per departmental protocol. There was no acknowledgement that I knew anything regarding this protocol I.e. what was happening inside this HOD’s head was not part of an open discussion. But this is a moot point because appointment as a UTE holds no legal jurisdiction. It is the same as me claiming I have an LLB because I am now in self litigation!!

3. When Mr. DB went to call this witness, he did not return timeously. I requested that Mr. AD go and call him. As Mr. AD had not returned timeously, I went to look for him. He was standing at the end of the corridor (on the opposite side of the waiting room) with his hands behind his back. I opened the door of the waiting room and Mr. DB was in deep discussion with his HOD. They were in shock when they saw me. I returned to the consultation room. All three of them arrived together not 3 min later…..nobody said anything about anything. I had left my Imac running so this time gap was on record. The Arbitrator did not record that he was either stopping or pausing the hearing (as per protocol of procedure…) nor did he record the time of resumption.

4. After realizing that this witness was ‘unreliable’ I refused to continue questioning her: she ‘could not remember anything’ anyway and I could not understand why she was even called. However, she did agree that the Principal ‘had no authority’ to offer me a Government post.

NO AUTHORITY TO OFFER ME A GOVERNMENT POST!

I had taken up the appointment on the basis of this offer AND THIS OFFER ALONE.

Many years later (after having one this case and took the award on REVIEW AGAIN via the Labour Courts, I finally realised that the Principal HAD LURED ME INTO HIS SCHOOL ON FALSE PRETENSE. Having NO AUTHORITY to offer me a permanent post with the Education Department constitutes an ILLEGAL COMPONENT OF AN AGREEMENT. It also points to DECEPTION.

AS SUCH MY APPOINTMENT WAS A BREACH OF CONTRACT FROM DAY ONE!

THIS was the reason why the Education Department was going to keep this case from being heard in the Labour Courts by any means necessary. I had no idea of how desperate their desperation was going to become.

And please bare in mind that there had been a concerted COVER UP IN THIS REGARD. PROOF of this coverup is evident in the fact that the arbitrator completely IGNORED these revelations of ‘no authority’. I mean HE IS THE ARBITRATOR!

Are Arbitrators not compelled, through the oath of their office, to do their utmost to pursue JUSTICE and to APPLY THEIR MINDS FAIRLY in relation to the EVIDENCE?

How can an Arbitrator claim impartiality when he can safely IGNORE evidence.

This was yet ANOTHER TRUTH (both in terms of arbitration and in terms of FACT) that had emerged from these years of litigation.

As I said before: this was a unique case, it has no precedence, as TRUTHSs were being uncovered along a continuum that BOUND ME to continue persuing JUSTICE WITHIN this continuum, and WITHIN this Labour Court Review procedure.

Researching the Constituinonal Court frameworks, it quite clearly states that the ‘truth can be discovered’. i.e these were the truths that were being ‘discovered’. \

How come is it that the Constitutional Court itself cannot comprehend this statement? Mmmmm?

I considered the ’cover up’ as being UNCONSTITUTIONAL, and that this EVOLVING series of events were thus ABOUND within the current procedure, for which I sought MAXIMUM relief.

I naively felt that if this maximum was beyond the jurisdiction to this court (A MAXIMUM OF TWO YEARS SALARY FOR AUTOMATIC UNFAIR DISMISSAL a conclusion well within the boundaries of this arbitration hearing) then IN FAIRNESS the Arbitrator would refer this case to a higher authority PURELY ON THE BASIS OF THE (THEN) FIVE YEAR TIME FACTOR ALONE!

a) escalate this case to the magistrate court (the time factor)

b) make a special ruling to grant me maximum relief.

I do not consider this possibility as being either ‘arrogant’ or privileged.

What did he do?

While agreeing that ‘it was more probable than not that the Applicant would not have taken up the post in a short term capacity’ (what a euphemism for a breach of contract!!) he awarded me R10,000 LESS than the previous award.

5. I felt dissatisfied with the Arbitrators INTENT in the hearing as he made no effort to unearth the truth of events and ignored all points of contention ONE of which was a question early on in the hearing:

The Arbitrators response to my statement that the salary short fall would be met due to the proposed adjustments he asked: And did the adjustments to your salary meet your requirements?

My answer: no.

I did not know at the time that NOT MEETING SALARY REQUIREMENT constitutes a breach of contract.

Surely the Arbitrator should have known this?

Why did he not follow this up?

Further to this the chief legal advisor to the Education Department claimed in her affidavit 2014,

(I.e. prior to the Labour Court Review hearing 2014 that ‘awards were sent to the Ed. Dept. ‘for approval’)

I asked the Arbitrator if he was going to submit the award from THIS hearing to the Ed. Dept. for approval.

Does ANYBODY not find such a procedure decidedly ODD?

TITLE: STARING ENDLESSLY THIS OBSESSION

MEDIUM: MIXED MEDIA ON PAPER

YEAR: 1984

SIZE: 1400MM X 1000MM (APPROX)

TO PURCHASE CONTACT THE ARTIST HELGE JANSSEN

I submitted my closing argument thus:

IN THE EDUCATION LABOUR RELATIONS COUNCIL

CASE NO: PSES627-09/10

DATE: 29 MAY 2015

In the matter between

H. JANSSEN APPLICANT

and

THE DEPARTMENT OF EDUCATION – KWA-ZULU NATAL RESPONDENT

INCLUDING

THE ELRC RESPONDENT

FIRST ARB RESPONDENT

THE MEC FOR EDUCATION KWA-ZULU NATAL RESPONDENT

CLOSING ARGUMENT

I, Helge Janssen, APPLICANT state the following:

COMMON OBJECTIVES of the CONSTITUTION and LABOUR LAW.

(Read out to the court) Sections taken from the Labour Relations Act 1995. (pages 570-3 of my bundle).

Any democratically elected government operates within the constitution. It is charged with acting, whatever the specific policies follow, to advance constitutional goals and within procedures that ensure that those goals are realised. It cannot pursue private objectives or irregular activities inconsistent with those purposes, which it is charged to uphold.

“Hence people entrusted with working within democratic structures should not pursue a private agenda which is inconsistent with the tenets of the constitution”. Quote Raymond Suttner – Daily Maverick

All courts are enjoined, when applying and developing the common law, to have due regard to the spirit, purport and objectives of the Bill of Rights. This calls for a reconsideration of some of the assumptions underlying the common-law contract of employment, in particular the employer’s power of command and unfettered rights in respect of promotion and dismissal.

Section 186(2) defines an “unfair labour practice” as “an unfair act or omission that arises between an employer and an employee” and involves:

Unfair conduct by the employer relating to the promotion, demotion, probation, or training of an employee, or relating to the provision of benefits to an employer.

With regard to the freedom to rely directly on the Constitution, employees may rely directly on the Constitution to challenge practices not covered by the Labour Relations Act 1995, like transfers. This issue, however, remains to be developed by the courts.

Unfairness: Generally unfairness implies a failure to meet an OBJECTIVE STANDARD, and includes arbitrary, capricious or inconsistent conduct, regardless of whether it is intentional or negligent.

Any agreement which interferes with the employee’s existing terms and conditions of employment has to involve the employee in order to be valid.

Health & Democracy (update for this ‘closing argument’)

The relationship between human rights, policy and law

In studying health and campaigning for health rights, we need to understand the difference between human rights, policy and law:

Human rights:

In many countries human rights are not recognised in laws and are therefore not enforceable by courts. In South Africa, however, our Constitution’s Bill of Rights means that the rights that are listed there are justiciable. This means they are legally enforceable if there is a dispute.

Policy:

Policy is not law, but can sometimes be based on law. Policy is often a stage that takes place before a law is made or amended. For example, a policy explains how human rights can be protected in a new law.

Law:

Laws set out the rules of a country and must be followed by everyone. The highest law of South Africa is the Constitution, including the Bill of Rights. This Constitution says, “The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state”. This means that human rights that are set out in the Constitution must guide every law in South Africa.

COMMON CONCLUSIONS VIA CLARIFICATION OF EXISTING EVIDENCE

According to the Constitution there are only two types of employment viz:

Fixed term

Indefinite

Nobody has clarified why the word ‘TERMINATE’ was written next to my name on page23. This is sinister in the light of the fact that the Ed. Dept. claimed I was on a fixed term contract. If this were true, my contract was due to run its natural course. THIS UNCONTESTED FACT supports the fact that I was fired. Had I been healthy, had the school not been in utter chaos, I would still be teaching in that post today.

The chaos in the school experienced as a daily onslaught to my well-being was not contested. I supplied Newspaper cuttings to these courts (pg 110 (Julius Malema), pgs 295-296 AND fb conversation with pupil pgs 670-673 left with ARB 25.05.10). Reports of incidents which I wrote at the time and submitted to ARB pgs 509/24. It must be concluded that there was therefore common agreement on the untenable situation within the school. ED.DPT REP has been given a copy of the entire bundle (17.03.15) pages 01 to 679 and was given ample time to respond.

I was completely STONEWALLED and lead on wild goose chases in attempting to secure witnesses for this case. To send a subpoena via the Courts costs approx R950.

It was not contested in WITNESS testament that it was ‘in her understanding’ that the post offered was a UTE post as per internal policy of the school. That was WITNESS perception. At no point was it made clear that that was MY perception, or that there was any CONSENSUS to this understanding. Hence there was no point in me needing to accuse WITNESS of lying in the hearing. Any other interpretation of her statement is therefore PREJUDICED. The allegation that I had knowledge that I had been appointed as a ‘UTE’ after this interview, remains fallacious.

What everybody except me (it seems) fails to understand is that the entire notion of appointing anybody as a UTE is legally spurious as it holds no legal jurisdiction. (Must I repeat this ad infinitum?)

I stated that WITNESS, who was present at the interview with PRINCIPAL, has a ‘selective memory’ as she conveniently fails to remember vital details of the interview or salient events within the school at the time. For e.g. such as the offers made by PRINCIPAL that would make up for the shortfall to my salary i.e. PENSION, MEDICAL AID, A HOUSING SUBSIDY AND ADJUSTMENTS TO MY SALARY AS PER THE NEWLY IMPLEMENTED OSD POLICY OF THE EDUCATION DEPARTMENT or who in the school had contested the Deputy Principals post which became a HUGE bone of contention within the school. ED DPT REP contested this line of questioning and this objection was upheld by ARB without sound reason. I refused to continue interrogating the witness.

I never made any claim that at the interview I was ‘permanently appointed’ as stated by SECOND ARB in a question to WITNESS. Being ‘permanently appointed’ and being offered a permanent post are completely opposing concepts in a time sequence. This framing of the question by ARBITRATOR remains curious in the light of his role of impartiality.

A verbal agreement is a legally binding agreement. Offers made to me by PRINCIPAL and which seems to be a point of confusion for WINESS, as she conveniently ‘cannot remember’ what was offered by PRINCIPAL in the interview. There was a discussion around these issues (Pension, Medical Aid, Housing Subsidy and OSD) as I was initially skeptical of PRINCIPAL offer and I had requested him to clarify. It was only after he pointed out the long-term benefits of a PENSION that I succumbed to his plea. How she cannot remember this therefore becomes convenient in terms of having a ‘selective memory’. This would be evident to any fair-minded person.

ALL forms supplied to these courts by Mr. Dube CORROBORATES the appointment offer made by Mr. Dlamini and completely negates any notion of being employed as a UTE. The term has NO LEGAL JURISDICTION. (Do I have to keep saying this ad infinitum?) This corroboration was uncontested.

The fact that Mr. T from the finance office stated that the reason for there being 000000 (i.e. NO PERSAL NO.) next to the GEPF deductions on my SALARY ADVICE SLIP was NORMAL PROCEDURE during a time of PROBATION of an EDUCATOR. This was uncontested.

According to WINESS evidence it becomes apparent that PRINCIPAL was playing a double game at my expense and without her knowledge.

At no point did PRINCIPAL state my dates of appointment in any specific terms as required by law when taking up a ‘fixed term’ post. In the light of the appointment offer of a permanent post this is self evident.

WITNESS ‘could not remember’ any aspects of this conversation other than to refer to ‘internal policy’.

It is TOTALLY UNREASONABLE to have expected me to be aware of ‘internal policy’ regarding appointments at Brettonwood High School. This would be evident to any fair-minded person.

It was uncontested that PRINCIPAL quite clearly had his own agenda in appointing me to his school and that my appointment was irregular and constitutes an unfair labour practice:

There cannot be two appointment statuses running concurrently. The onus must fall in my favour as the application form ) quite clearly states period of appointment from 18.05.09 to INDEFINITE. This had not been filled in ‘by error’ (as suggested by WITNESS, witness for the Ed. Dept.) as PRINCIPAL had signed the form on 26.05.09 after I had taken up the post and would corroborate the offer made by him. This same term of appointment was applied to page 3 of ED.DPT.REP bundle also signed by PRINCIPAL on the same date 26.05.09. Refer to point 5 of COMMON OBJECTIVES above.

One cannot have a period of appointment within an application form which has a specific starting date and an INDEFINITE concluding date which then becomes adjustable depending on prevailing prejudices. The meaning of the word INDEFINITE is not arbitrary or adjustable. This is directly linked to the two types of employment statuses as stated in the Constitution.

The unfairness of being appointed to a post which was NOT VACANT but in DISPUTE (the Deputy Principal post) was not contested.

WITNESS clarified that the offer made to me by PRINCIPAL of Medical Aid and Housing Subsidy could not have applied to me if my appointment was in a fixed term capacity. The only condition PRINCIPAL made was that I would have to wait three months to make application for Medical Aid. I was told Housing Subsidy would only come into effect after a year. The chaos in the school and the pressures to deal with victimization made application for Medical Aid impossible.

WITNESS clarified the point that there were TWO PENSION options when taking up an appointment. PRINCIPAL offered me ONE of the options and that was the ongoing option as per a long term appointment.

WITNESS clarified the point that my filling out the application form page 4 of ED.DEPT.REP bundle was irregular, as the post had not been advertised via Government Gazette. However I would not have been aware of this fact (the irregularity) but would have seen this as being in line with PRINCIPAL offer of a permanent post and that I would then be serving a period of probation (one year) which is normal when the purpose of the appointment is INDEFINITE. However, this confirms the irregularity of PRINCIPAL professionalism. This would be evident to any fair-minded person. Refer to point 5 of COMMON OBJECTIVES above.

WITNESS clarified that if an Educator was employed in a permanent capacity that they would not have been sent the Z83 form. She claimed that if this form had been previously printed then this would just be an update. This form was never sent to me (neither was I issued a letter of appointment) and hence the printing of this form on 06.05.09 constitutes an attempt at fraud as it had not been printed before.

WITNESS clarified the fact that not all departments (such as hers) within Education would have been aware that the post of Deputy Head was under dispute. This clarified the discrepancy that exists regarding the internal running of schools and the breakdown of communications between departments within the Dept. of Ed.

WITNESS denied the fact that PRINCIPAL should have requested a LOCUM to replace LS TEACHER as she was going on accouchement leave. This is most odd as this is normal procedure within schools. When LS TEACHER returned she was not given back her classes. Instead she sat in the Library as the school Librarian had left at the end of May 2009 and was not replaced. As she was a Life Science Educator, would this mean she would have been declared in excess?

WITNESS failed to satisfactorily clarify the 06 next to my name on the Winnet Printout which was vague and ‘ad lib’.

Pages 1 – 5 of SECOND ED.DPT REP bundle were WITHHELD by FIRST ED.DPT.REP in the previous court case dated 14.May.2010. This is perjury. I was told that these forms (which were kept in my files as confirmed by WITNESS) was ‘classified information’ and that I had no right to access them. FIRST ED.DPT.REP had all my files with him in the court hearing. (Lines 20 -21 of page 54 of Mr. D’S bundle). Had this court case been held with an honest intention to resolve a case of ‘unfair dismissal’ with INTEGRITY, the following 5 year destruction to my life would not have occurred. This has thrown doubt as to the INTEGRITY OF ELRC PROCEDURE and has increased my skepticism of this current court case. The lack of INTEGRITY OF FIRST E.DPT REP further points to COLLUSION between him and Arbitrator for the ELRC who issued two conflicting awards.

The ‘hands off policy’ with regards to the internal running of schools has given Principals a free hand to run their schools as they see fit. In the hands of an astute Principal this could add to the functionality within the dynamic of a school. However, this has allowed unscrupulous Principals to run a school as a fiefdom.

It was on this basis (internal impunity) that PRINCIPAL felt he could wangle my appointment at the school, while offering me a permanent post ‘within’ the school, yet failing to register this with the Education Department. As such he was playing a double game with my life. The Education Department still stands accountable as PRINCIPAL is mandated by the Education Department via his appointment and is beholden to them for any capricious or inconsistent conduct which is an unfair labour practice.

The term UTE is obsolete. It has no legal jurisdiction. It was used as an employment category between the years 1998 and 2001 for the REDEPLOYMENT of educators who were declared to be in EXCESS of the PPN of a school. Must I repeat this ad infinitum?

I was not being REDEPLOYED to this post within the school, which would have at least been CONSISTENT with a UTE. The term UTE cannot have some arbitrary interpretation according to the prevailing bias. This proves that the use of this term by the Ed. Dept. ever since 2001 was irregular.

No person is UNPROTECTED in the constitution of South Africa and this term reminds of the type of thinking of the old apartheid regime and is out of step with the Constitution. As a result (probably of this court case) the term UTE is no longer used in any Education Departmental faculty.

ED.DPT.REP has failed to clarify the reasons for PRINCIPAL removal from office which had been repeatedly requested.

The untenable situation within the school was not contested and therefore remains a fore-gone conclusion with added evidence of newspaper reports of the type of problems within the school and the eventual removal of PRINCIPAL from office. This is curious in the light of WITNESS lack of memory regarding internal events in the school and further underlines her lack of credibility as a witness.

It was not contested that the caning of pupils by EDUCATOR created trauma in the pupils to the point that normal disciplinary responses escalated to a crisis.

The NON-CLARIFICATION to the staff of the basis of my appointment to the school further exasperated my situation as it is NOT UNREASONABLE to conclude that due to the subterfuge and shenanigans that went on in the staff room, that it would have been construed that I was being ‘groomed’ for the post, leading to resentment from certain interested parties. This indicates a lack of psychological acumen on the part of PRINCIPAL. This would be evident to any fair-minded person. This could be likened to a father who buys a bicycle for his child and then sends his child to the shop without informing him of road traffic rules.

My mental health and well-being were not contested and therefore remains a proven reality of the devastating effect the constant disruptions had on my life leading to complete exhaustion, emotional and psychological collapse. This incapacitated me with regard to performing my professional mandate and was an unexpected mitigating factor in the uncovering of the unprofessional conduct of PRINCIPAL.

When asked of a staff member for a possible way forward with regard to the problems in the school, I was told to ‘work with’ the disruptive pupils as a way of gaining control of my situation. I found this notion reprehensible and morally unsound. This point was not contested in this hearing.

The unsatisfactory explanation of FIRST ARBITRATOR (as to the release of his awards) and the subsequent admission of guilt by ED.DPT.LEGAL ADVISOR in an affidavit to me in a desperate attempt to have the case D593/10 thrown out of court CANNOT BE REGARDED AS A NON EVENT as it throws serious doubt on the integrity of the ELRC and the arbitration process via FIRST ARB, as well as the integrity of FIRST ED.DPT.REP and the Ed. Dept. This affidavit was a PUBLIC DOCUMENT and was NOT ‘without prejudice’ as suggested by SECOND ARB as he seemed reluctant to allow me to lead this evidence for obvious reasons. The admission of guilt proves that FIRST ARB submitted his ‘award’ to FIRST ED.DPT REP for ‘approval’. This is highly irregular and constitutes corruption. This brings the legal profession into disrepute and throws further doubt on the professionalism of the ELRC. I am not aware that there have been any internal investigations of these events.

It was uncontested that my refusal to return to BHSchool was based on a lack of assurances from any of the stakeholders that the situation within the school would, or could, change.

It was uncontested that my refusal to return to BHSchool was an act of self-preservation/defence, not an act of defiance.

It was uncontested that my application for a transfer or resignation from BHS would have constituted a pressurized attempt at a constructive solution.

The Ed. Dept., as represented by ED.D.REP (and PREVIOUS ED.DPT.REP before him in case PSES627-09-10) has not proven a single legal fact as to their claim that I was on a fixed term contract as required BY LAW. This is the basis upon which they ‘terminated’ my contract and is therefore not some ‘arbitrary’ event but a specific event that MUST BE SUBSTANTIATED in LAW and that law requires proof, not a ‘balance of opinion’. It is completely unconstitutional to claim anything else and constitutes an unfair legal/labour practice to try and circumvent or deny and is a violation of the Constitution. This fact alone concludes that I was fired under the pretext of being employed in a fixed term capacity. This has devastated my life. This would constitute AUTOMATICALLY UNFAIR DISMISSAL with the attendant financial compensation including loss of income plus damages sustained these 5 _ year plus compounded interest. Failure to acknowledge this point deems this Arbitration hearing to be in contempt of ELRC codes of fairness and accountability, in contempt of fair legal practice, in contempt of our constitution, and in contempt of a policy of Human Rights application. I would be forced to declare a dispute and seek justice via the Magistrates Court. Mr. P act has been indefensible and has not been contested successfully.

COMPENSATION

1. AUTOMATIC UNFAIR DISMISSAL ON THE GROUNDS OF BEING FIRED UNDER THE PRETEXT OF BEING EMPLOYED IN A ‘FIXED TERM’ CAPACITY IN A NON VACANT POST AT BRETTONWOOD HIGH SCHOO.

R10,344 X 26 = R268,944 + INTEREST @ 15% (?) PA = R369,798 (ROUGH FIGURE COMPOUNDED OVER 5 _ YEARS)

A rough estimate of this amount comes to R600,000 with immediate effect.

COMPENSATION FOR ALL DEBT INCURRED + INTEREST over 5 _ years:

MEDICAL DOCTORS/MEDICATION, BANKS, CREDIT CARDS, LOANS, MONEY BORROWED FROM MY SON.

APPROX R144,000 + INTEREST COMPOUNDED OVER 5 _ YEARS

= APPROX R311,359

COMPENSATION FOR LOSS OF INCOME AS IF I HAD BEEN TEACHING THESE 5 _ YEARS SINCE UNFAIR DISMISSAL AS OF 01.01.2009. INCLUDING SALARY INCREMENTS AND ADJUSTMENTS + INTEREST. THIS AMOUNT MUST ALSO REFLECT BENEFITS I WOULD HAVE RECEIVED FOR SUCH A LONG TERM OF SERVICE IN EDUCATION TO THE PRESENT DAY AND FOR THE FOLLOWING TWO YEARS. (THIS AMOUNT MUST BE CALCULATED BY THE EDUCATION DEPARTMENT AS THEY HAVE INFORMATION IN THIS REGARD)

SALARY + INCREMENTS + BENEFITS FOR LONG SERVICE+ PENSION + INTEREST OVER 5 _ YEARS COMPOUNDED YEARLY

COMPENSATION TO REPAY FRIENDS WHO HAD SUPPORTED ME FINANCIALLY VIA WAIVING RENTAL DEMANDS AND SUPPLYING ME WITH FOOD WHEN NEEDED OVER 5 _ YEARS.

= APPROX R80,000 + INTEREST

A ROUND SUM OF 4 _ MILLION RAND (AFTER TAX) WOULD ENABLE ME TO GET MY LIFE BACK ON TRACK AND TO WALK AWAY FROM THIS SHOCKING TREATMENT WITH RESPECT AND HONOUR.

THIS TOTAL AMOUNT PAYABLE WITHIN THREE MONTHS OF THIS COURT DATE WHICH WOULD INCULCATE FURTHER INTEREST.

BANK DETAILS: CAPITEC

MR. HO JANSSEN

ACC. NUMBER: 1414086383

BRANCH CODE: 470010