Case Number: PSES 203-10/11KZN
Applicant: NATU obo AM Dlamini
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 30 September 2011
Arbitrator: Mlungisi Sabela
AT THE EDUCATION LABOUR RELATIONS COUNCIL
Commissioner: MLUNGISI SABELA
Case No.: PSES203-10/11KZN
Date of Award: 30/09/2011
In the MATTER between:
NATU obo AM DLAMINI (Union / Applicant)
DEPARTMENT OF EDUCATION-KWA ZULU NATAL (Respondent)
DETAILS OF HEARING AND REPRESENTATION:
This matter was set down for an Arbitration hearing on 16 March 2011 as well as on 8 and 9 September 2011 at the Respondent’s offices at Obonjeni District Office, Cnr Hlebe & Thembalethu Street Mkhuze between NATU obo AM Dlamini, the Applicant and Department of Education-Kwa Zulu Natal, the Respondent.
The Applicant was first represented by Mr MT Gasa a shop steward from NATU on 16 March 2011 and by Mr SP Magaye a union official from NATU.
The Respondent was represented by Mr I Pillay a senior personnel practioner.
Before the hearing commenced Mr Pillay handed in a common bundle of documents.
ISSUE TO BE DECIDED:
Whether the Respondent committed an unfair labour practice towards the employee (Anthony Mzomuhle Dlamini) or not.
BACKGROUND TO THE ISSUE:
Anthony Mzomuhle Dlamini (employee) is employed by the Respondent since 11 January 1982 and is currently an educator post level 1.
He was demoted from being a principal on salary level 2 on 21 July 2010 following a disciplinary enquiry where he was accused of the following charges:
-in that during the period 10 August 2009 to that date at or near Zuzanawe School he absented himself from duty without permission and or valid reason/s thus contravening section (1) (i) of Educators Act 76 of 1998.
In that during the period August 2009 to that date at or Zuzanawe High School he failed to carry out a lawful order without just or reasonable cause in that he did not comply with the directive from the Department to return to his original school (Zuzanawe School) thus contravening section 18 (1) (i) of the Act.
SURVEY OF EVIDENCE TO ARGUMENT:
Moses Thabiso Zitha testified that he is a deputy manager for human resources development and employee relations stationed at Obonjeni District Office. His duties entail among others investigation of conduct and discipline. Some times he is appointed as a prosecutor or chairperson in disciplinary enquiries.
He receives applications for displacements for investigation until they are finalised. If there is no basis for displacement an employee is informed to go back to his school as there is no basis.
Early 2007 he received an application for displacement addressed to the ward manager at Jozini by the employee as shown on page 19 of the bundle.
Page 22 is a communicare he prepared to Ubombo circuit manager. Page 21 is a communicare to the employee prepared by him informing him to select a superintendent for education management (SEM) to be appointed to investigate the allegations. The employee ticked JJ Ndaba who was then appointed as shown on page 23. Mr Ndaba completed his work before the time line and gave his report as shown on page 24.
According to HRM12/1997 displacement was based on intimidation of a political nature such that educators could not report to their stations as shown on page 35. The background to page 35 which is not a collective agreement by KwaZulu Natal Department of Education but is a circular where there were instances where educators could not go to work due to intimidation due to political alliance. It did not mean that any other person who felt threatened for any other reason would rely to this.
Page 26 is a letter to the circuit manager prepared by him. The employee was not granted displacement and was instructed to go back to Zuzanawe. Page 45 is the letter he prepared informing the employee to report to work. To the best of his knowledge the employee did not report to school. Regarding the outcome of his displacement application, the employee did not follow dispute resolution procedure.
Page 41 to 42 is a letter from NATU after he had a meeting with the employee and a union official. Page 30 is his response to page 41. There was a formal lawful instruction to the employee informing him to return to work.
Zuzanawe School was a high profile issue as it had a history of not performing well. In 2007 and 2008 it got 0% matric pass rate. The school had only five educators and had only four educators since the employee was absent from school.
Mntukabani Aaron Thabethe testified that he is a ward manager at Jozini and Zuzanawe School falls under his ward. The school does no longer exist. He knows the employee as the principal ofZuzanawe School. Page 19 is an application for displacement from school submitted to him by the employee. He (Thabethe) wrote a covering letter and forwarded the employees application to Obonjeni District so that they investigate in terms of HRM12/1997.
He received an investigation outcome from employee relations from Obonjeni district which he communicated to the employee. The letter he gave the employee was saying his application was not approved as a result of investigation telling the employee to go back to Zuzanawe School. He thinks it was in 2008 when he gave the letter to the employee but the employee did not go to Zuzanawe. Whilst the investigation was going on the employee was based at Mangwazana high school as post level 1 educator and he is still based there.
He gave the employee various verbal communications to go back to Zuzanawe and at some stage called the employee to his (Thabede) office.
He had meetings with the employee from 2008 towards the end of 2009 but failed to persuade him to go back to Zuzanawe. He then informed employee relations to take further steps. In August 2007 he gave the letter from employee relations Obonjeni shown on page 45 to the employee.
Page 47 is a letter by the school governing body requesting him to ask the employee to go to them (school governing body) as they (school governing body) had no problem with him. He requested the employee to do as the school governing body requested but he refused. According to his knowledge there was no problem between the employee and the school governing body. According to his knowledge there was no meeting between the employee and the school governing body.
Displacement by the employee was without just cause and there was no case opened with the police. The school did not have a principal. The school was left with only four educators. No proper teaching and learning could take place in school. In 2008 the school got 0% pass rate in matric. The school was degraded to grade 8 and 9 only. Parents seeing nothing was going on at school took out their children from the school. In the beginning of 2011 the school was closed and there is no more a school called Zuzanawe.
The employee did not have permission to be absent from the school.
He disagreed when told that the employee will testify and say he had never had a meeting with him.
Page 30 is addressed to Magaye SP dated 18 June 2008. Page 46 is a letter addressed to the employee dated 10 August 2007. Page 41 is addressed to Mr Zitha from the union dated 11 June 2008 and they were interrogating with regards to the investigation report. From this the employee knew that he had to report back to his school. On 10 August 2009 the employee was handed page 15 at Mangwazana high school and he did not report back to Zuzanawe. Even when he was dismissed he continued to report at Mangwazana high school.
Anthony Mzomuhle Dlamini testified that he was employed by the Respondent since 1 January 1982 as a post level 1 educator. He applied for displacement on 12 March 2007 for reasons that his life was in danger. He was placed at Mangwazana high school though he chose Mtwazi but was told there was a shortage of teachers at Mangwazana high school.
No investigation was done at Zuzanawe School and he was not called to testify regarding his displacement application. He had not mentioned ukuthakatha in his letter for displacement. One day he got into a class and learners of grade 12 showed a negative attitude towards him. At one stage he found his car broken into. He received calls from members of the community saying his life was in danger. Mrs Myeni the local Inkosi’s wife was saying there was no need for him to go back to Zuzanawe as his life was in danger. She said it is better to be alive than being a dead principal.
He remembers that Mr Ndaba said he did give him the out come of investigation as shown on page 24 in his (Ndaba) office. He (employee) did not receive this outcome until he went to Mr Zitha’s office with his union in 2008. He sees page 34 instructing him to go back to Zuzanawe for the first time. No one instructed him to go back to Zuzanawe. He thinks all this happened because of the hatred caused by differences between SADTU and NATU.
Mr Thabethe issued him a letter to attend a disciplinary enquiry and again a letter of dismissal when he came with Mr Mthembu. When giving him a letter to attend disciplinary enquiry Thabethe told him that he need not worry as it was a political matter. Thabethe promised to stand by him till to the end.
Investigation of displacement had to be done within five days and had to be done at school and with the school governing body. He also had to be called to testify.
They went to Mr Zitha with the union to find out the progress as he was placed at Mangwazana for almost a year. Then he was issued with an investigation report.
No letter was given to him by the ward manager except a notice to attend a disciplinary enquiry and a dismissal letter.
Initially he was in good terms with the ward manager even when he gave him those two letters to attend a disciplinary enquiry and for dismissal.
After he received the charges the ward manager used to come to Mangwazana School but did not talk to him.
He knows about the letter by the union to Mr Zitha on page 41 and does not remember if it was respondent to. He did receive an instruction to go back to Zuzanawe School in August 2008 from Zitha’s office. Mr Zitha told him to go to Zuzanawe and if any post appears in the district he could apply for it and go away from Zuzanawe. He received a notice to attend a disciplinary enquiry as shown on page 13 and attended it. The charges are on page 15.
When asked as to why he did not go back to Zuzanawe when receiving the charge sheet, he said he had never received any letter saying he had to go back.
He does not know if the Respondent would have charged him had he gone back to Zuzanawe. He did not go back to Zuzanawe because he and the union had appealed about the investigation. Page 41 which is dated 11 June 2008 was written by his union. He read out paragraph of page 41. The union was acting on his behalf. Page 30 dated 18 June 2008 is the Respondent’s communication with the union. He does not remember getting any advice from the union. As far as he remembers he and the union did lodge a dispute and it was given to Mr Zitha.
If not mistaken page 45 is the letter he received from Mr Zitha’s office. He does not remember receiving page 45 but remember Mr Ndaba’s report at Zitha’s office.
It was for the first time in August 2008 he heard that his application was unsuccessful in Zitha’s office. Page 19 is his (employee) letter and he did not mention ukuthakatha but there were threatening allegations. He did not go to the police. Problems had arisen to some teachers before and teachers would be cross transferred. He was in good terms with Mr Mngadi the chairperson of the school governing body. He did receive page 47 and went to Mr Mngadi who said there was a meeting at the hall where members of the community voiced their dissatisfaction about him (employee).
When asked as to why the threats by grade 12 learners and the issue of his car being vandalised are not mentioned in his letter applying for displacement, he said sometimes as teachers things happen and one will say a child is a child.
He agrees that in his letter for displacement there is no threat of physical violence to his life. He does respect the department and would have to follow lawful instructions. Asking him to go back to Zuzanawe by the department is a lawful instruction. He did not receive any letter from his superiors telling him to go back to Zuzanawe.
ANALYSIS OF EVIDENCE AND ARGUMENT:
The employee applied for displacement in terms of HRM12 of 1997. Mr Ndaba who was doing the investigation concluded that the employee did not qualify for displacement. That could only be because there was no threat of violence or intimidation towards the employee as required in terms of HRM12 of 1997.
It is obvious that the employee was unhappy about the investigation outcome. According to page 41 of the bundle which is a letter from NATU dated 11 June 2008, the employee was aware in 2007 that his displacement application was not successful. The union clearly states its dissatisfaction about the outcome of investigation by SEM JJ Ndaba. The letter is a follow up to a discussion it (NATU) had with the Respondent the previous year which would be 2007. According to the employee the union was acting on his behalf.
Under cross examination he (employee) said he did not go back to Zuzanawe school because he and the union had appealed the investigation outcome. The employee admits that he was told by Mr Zitha at Obonjeni District in August 2008 to go back to Zuzanawe school.
It is therefore immaterial whether the employee was informed in 2007 by the ward manager or by Mr Zitha in 2008 to go back to Zuzanawe as he did not go back until he attended a disciplinary enquiry in November 2009.
If the employee was not aware that he should have returned to Zuzanawe school he would have said so to Mr Thabethe when serving him with a notice to attend a disciplinary enquiry. Infact the employee would also have immediately returned to Zuzanawe school.
From all the evidence I believe the employee was notified by Mr Thabethe in 2007 to go back to Zuzanawe school. The employee was again notified by Mr Zitha in 2008 that he had to go back to Zuzanawe school but he did not.
The employee was obviously absent from Zuzanawe school on 10 August 2008 without permission. He obviously failed to carry out a lawful order without a just and or reasonable cause by not complying with a directive from the Respondent to return to Zuzanawe.
The chairperson of the disciplinary enquiry could have correctly found the employee to have committed the main charge or the alternative charge. The fact that the chair person found the employee guilty of both the main and the alternative charge does not make much difference as it would appear the chairperson was not a person with a legal training. Also this does not make the process to be unfair considering that both the charges are of a serous nature.
I find the employee to have committed either of the two misconducts charged with. I also find a sanction of a demotion to be a fair and reasonable sanction.
a. The application is dismissed.
b. There is no order of costs.
DATED at DURBAN on this the 30th day of SEPTEMBER 2011.
Dated: 30 SEPTEMBER 2011