Case Number: PSES64 08/09 NW
Province: North West
Applicant: THANDIWE KAOMO
Respondent: DEPARTMENT OF EDUCATION [NW]
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 12 July 2009
Arbitrator: ELSABé MAREE
Panellist : ELSABé MAREE
Case Number : PSES64 08/09NW
Date of Award : 12 July 2009
In the ARBITRATION between
DEPARTMENT OF EDUCATION [DOE]
Applicant’s representative Mr. H. Wissing
Applicant’s address Fax  293 0139
Respondent’s representative Mr. D. Phango
Respondent’s address Fax  387 3028
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on 30 June 2009 at the premises of the North West Department of Education situated at 30 Emmanual Street, Vryburg.
2. The applicant was represented by Mr. H. Wissing an attorney while the respondent was represented by Mr. D. Phango, the Labour Relations Practitioner.
3. At the outset of the proceedings a pre-arbitration was held as per CCMA rule 19 and recorded in writing.
4. When the arbitration was to commence the respondent’s representative objected claiming that the matter was merely a pre-arbitration and that the matter must be postponed in order to conduct the arbitration.
5. The request for postponement was denied as the notice of set down clearly stated that the matter was set down as an arbitration. It was equally clear that the pre-arbitration was merely the manner in which the arbitration would commence.
6. It was equally clear that the matter dated from October 2007 and that the matter had been postponed on numerous occasions.
7. The application for postponement was thus rejected and it was ruled that the matter would proceed as there had been ample opportunity to prepare and to obtain the necessary documents and witnesses in order to conduct the arbitration. It was further equally clear that the matter had been set down as an arbitration.
ISSUES TO BE DECIDED
8. I have to determine whether the respondent committed an unfair labour practice in that the applicant was demoted subsequent to a disciplinary hearing on charges of misconduct.
9. In the event that the respondent indeed committed an unfair labour practice, I have to determine appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT
THE APPLICANTS EVIDENCE
10. The applicant, THANDIWE KAOMO, under oath testified that:
a] She was the Deputy Principal and that the charges in bundle ‘A’ page 5 were levelled against her.
b] At the hearing she was assisted by an union official and pleaded not guilty.
c] They also requested if they could submit documents to show that she was not guilty but she was not given an opportunity to obtain the documents from the school.
d] Her witnesses were also not called despite her request and the request from her union. Instead the hearing continued and she was found guilty and demoted to Head of Department.
e] She was given the opportunity to call witnesses in mitigation.
f] An appeal was then lodged to the MEC [bundle ‘A’ page 17] who replied to this on page 8 bundle ‘A’.
g] The MEC concurred with the chairperson but the letter referred to ‘dismissal’.
h] On 29 October 2007 she signed the appeal outcome and obtained legal representation in order to pursue the matter.
i] She did not sign a document at the disciplinary hearing indicating that she agreed with the demotion.
j] Regarding charge 1, she did not fail to discipline educators during 2006, as it was not part of her job description to discipline them.
k] It was her job description to monitor the work of the Head of Departments as she worked directly with them.
l] In the event of misconduct Mr. Morogane would issue warning [Bundle ‘A’ pages 18 and further] and she only signed as witness when they refused to sign. She affixed her signature as witness that the principal disciplined the educators.
m] In the event that the Principal was absent she would ‘deputise’ him.
n] Furthermore, regarding charge 1 she is not clear on the meaning of ‘not take lawful order’ and does not know what is meant by ‘which caused high failure rate’.
o] If she committed misconduct the Principal had to charge her not other higher authorities. The Principal never charged her.
p] Regarding the alternative charge she does not know where she performed poorly or inadequately and has no idea of the high failure rate. She also does not know what is meant by ‘unjustifiably prejudiced’.
r] This was the year ‘OBE’ commenced and the failure was not only at her school. Furthermore, at the stage of the hearing the pass rate had not been affected
s] No other employees were charged with ‘poor results.
t] Bundle ‘B’ was submitted for the 1st time at the disciplinary hearing.
THE RESPONDENT’S EVIDENCE
11. On behalf of the respondent, FAITH MONGALE under oath testified that:
a] She is an Inspector of schools and as such oversees schools to ensure their smooth running as expected by the Department.
b] During 2006 an investigation was conducted at Huhudi School and Bundle ‘B’ page 1 and further reflects the report of the investigation of which she was a part.
c] The investigation was conducted by a team consisting of the Area project office, 3 school investigators and a coordinator.
d] The investigation was instituted as a result of a report from the Portfolio committee that the school was dysfunctional.
e] At the school they interviewed the SMT which consisted of the Principal, deputy Principal [applicant], Hod [Physical Sciences] and Hod [Humanities].
f] They created an environment were each member could tell them of his/her weaknesses and strengths which they did.
g] During this process the applicant was also interviewed and bundle ‘B’ page 3 paragraphs 4.1 & 4.2 reflect her submissions. It is clear from this that she did not monitor.
h] The duties of the Deputy Principal are to address the curriculum. The HOD’s report to the Deputy Principal and as such she has to discipline them as well as other educators.
j] The internal results [Gr 10 & 11] at the school were ‘very poor’. The end of year result is the result of continuous assessments and examinations. The HOD’s are responsible to monitor the quality of the examinations.
k] In turn the Deputy Principal is to monitor the HOD’s to ensure quality.
l] Due to the continuous problems over the year the year end results were poor.
m] The applicant never requested information from them nor did she request any documentation. The applicant also never indicated that she was not responsible for the poor results.
RICHARD MAKADO, under oath testified that:
a] He is the Area Office Manager [CES]
b] He was part of the investigation conducted during 2006 which resulted in the report in bundle ‘B.
c] During the investigation they met various stakeholders such as the SMT, learner representatives, educators and parents.
d] Every one told them of their strengths and weaknesses.
e] The duties of a Deputy Principal are to assist with the overall administration at the school, to be in charge of the curriculum and to monitor and control the work of HOD’s.
f] The results of the applicant’s interview are reflected on pages 3 & 4 bundle ‘B’. The applicant submitted the comments in paragraphs 4.1 & 4.2. clearly indicating that she ‘did not monitor properly’. .
g] Gr 10 & 11 learners are continuously monitored and if they are monitored it would be clear that the results are not good.
h] In the event of discipline affected at the school there will be good performance.
I] During the investigation the applicant’s performance ‘did not satisfy at all’. It was also clear from the HOD’s that the applicant did not perform. [pages 1, 2 and 3]
12. Written closing arguments were submitted on behalf of both parties as per agreement.
I have studied these arguments and would reflect relevant parts if necessary.
ANALYSIS OF EVIDENCE AND ARGUMENT
13. Section 186 [a] of the Labour Relations Act 66 of 1995 defines an unfair labour practice as follows:
 Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –
[A] Unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissal for a reason relating to probation] or training an employee or relating to the provision of benefits to an employee’’
14. The onus was on the applicant to prove, on a preponderance of probabilities that she had been unfairly demoted.
15. It was common cause that the applicant had been demoted to the position of HOD subsequent to a finding of guilt at a hearing on charges of misconduct.
16. It was also common cause that the demotion had not been effected and that the applicant was still employed as a Deputy Principal.
17. It was the applicant’s case that the finding of guilt and her demotion was unfair and amounted to an unfair labour practise as she was not guilty of the charges and had not consented as required by the Educators Act to the demotion. The applicant also claimed that there existed several procedural irregularities as there was no mechanical recording of the hearing and that a typed version of the hearing was not sent to the MEC.
18. The applicant further claimed that she was not afforded the opportunity to cross-examine and to lead evidence in mitigation. She was also not afforded the opportunity to call her witnesses and to submit documents that could proof her innocence.
19. The applicant testified that the charges ‘were vague’ and that she did not understand what it meant.
20. According to the applicant she did not fail to discipline educators as it was not her job description. In terms of this she had to monitor the work of HOD’s with whom she worked directly.
21. Evidence was led by the applicant that she signed warnings given to educators by the Principal as witness that he had affected discipline.
22. The witnesses of the respondent testified that an investigation was conducted at Hududi school during 2006 due to the fact that the school was dysfunctional.
23. During this process there were wide consultations with various stake holders and each member of the SMT of which the applicant was part, set out their weaknesses and strengths.
24. The applicant then [bundle ‘B’ page 3 par. 4.1 & 4.1] indicated her strengths and weaknesses which include a failure to monitor.
25. Evidence was also submitted on behalf of the respondent that the applicant as Deputy Principal was responsible for monitoring and disciplining of HOD’s as well as disciplining educators.
26. During cross-examination the applicant however, was forced to admit that she was responsible for disciplining educators albeit according to her ‘through the HOD’. I also accept that it was her duty as evidenced by her signature on a number of warnings. I do not accept that she merely signed as witness to show that the Principal effected discipline.
27. The charges against the applicant –that are quoted verbatim read as follows:
You are guilty of misconduct in terms of section 18[f] of the Act in that during 2006 you unjustifiably prejudiced the administration, discipline and efficiency of the Department of Education by failing to discipline educators of Huhudi Secondary school who did not take lawful order of teaching learners which caused high failure rate in that school,
You are guilty of misconduct in terms of section 18[l[ of the Act in that, during 2006 you performed poorly or inadequately for reasons other than incapacity by failing to discipline educators of Huhudi High School who did not take lawful order of teaching learners thus leading to high failure in that school’’
29. Although I accept that the applicant was responsible for discipline and although she might have indicated during the investigation –this was vehemently disputed- that she had failed to monitor, I have no evidence to proof the remainder of the extremely vague and ineptly drafted charges
30. The legislature remained silent on the onus in unfair labour practise cases. This silence must be presumed to mean that the normal rule ‘she who alleged must proves’ applies to all phases of the unfair labour practise dispute. The employee in other words must prove not only that the existence of the disputed ‘practise’ but also that that it is unfair.
31. The applicant testified that she charges were vague and that she had no idea what the allegations meant, thus denying her an opportunity to properly defend herself.
32. The charges against the applicant were not ‘failure to monitor; but failure to discipline educators ‘who did not take lawful order of teaching learners’. Who these educators were, how they failed to ‘take lawful order of teaching learners’ was not testified to. It was also not testified what these lawful orders’ were or who had given them.
33. The applicant’s role regarding her failure to discipline was also not explained most probably in view of the fact that the above mentioned details were not known.
34. The respondent’s witnesses were unable to explain during cross-examination how the applicant’s explanation of her strengths and weaknesses tied into the charges ultimately levelled against her.
35. I am not convinced that the applicant was guilty of the charges levelled against her.
36. In view of this therefore she is found not guilty of the charges.
37. The applicant’s is found not guilty of the charges levelled against her.
38. The finding of the chairperson and the subsequent sanction of demotion thus resulted to an unfair labour practise.
39. Both the finding of guilt and the demotion must be removed from the applicant’s file in view of the fact that the demotion had in any event not been implemented.
DATED AT PRETORIA ON THIS 12th DAY OF JULY 2009