PSES420-11/12WC
PSES420-11/12WC
Award Date:
6 December 2011
Case Number: PSES420-11/12WC
Province: Western Cape
Applicant: SADTU obo MM Fraser
Respondent: Department of Education, Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Cape Town
Award Date: 6 December 2011
Arbitrator: L Martin
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN
Case No PSES420-11/12WC
In the matter between
SOUTHERN AFRICAN DEMOCRATIC TEACHERS UNION ON BEHALF OF M.M. FRASER
Applicant
and
DEPARTMENT OF EDUCATION WESTERN CAPE Respondent
ARBITRATION AWARD
________________________________________________________________
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
The arbitration took place at the offices of the Department of Education Western Cape in Adderley Street Cape Town on 17 November 2011. The applicant, Mr. Michael Mitchell Fraser (Fraser), was represented by Mr. B. Maqaza, an official with South African Democratic Teachers Union (SADTU). The respondent, the Department of Education Western Cape (the respondent), was represented by Ms. B. Ndlondlo, a labour relations officer.
THE ISSUE IN DISPUTE
2. Does the conduct of the respondent in imposing on Fraser a sanction of suspension for 2 months without pay and a final written warning constitute an unfair labour practice as contemplated in section 186(2)A of the Labour Relations Act 66 of 1995 as amended (the Act).
THE BACKGROUND TO THE DISPUTE
3. Fraser is an educator at the Belhar Senior Secondary School (the school) and is the head of the English department. He has been in the respondent’s employ for 29 years and earns R231,240.00 (two hundred and thirty one thousand two hundred and forty rand) per annum.
SUMMARY OF EVIDENCE AND ARGUMENT
4. The respondent handed a bundle of documents into evidence. The applicant did not record any objections to any of the documents submitted by the respondent. The applicant did not submit any documents into evidence.
Fraser testified under oath on his own behalf. Joseph Jacobus Markgraaff (Markgraaff) the school principal, Elphinstone Maude-Linghe Jenneker (Jenneker) an educator at the school and Kevin David Fray (Fray) a curriculum advisor, testified under oath for the respondent.
THE EVIDENCE FOR THE APPLICANT:
Contrary to instructions from Markgraaf, Fraser had taken the task 5 scripts to the district office where he left it on the counter without notifying anyone.
He had in June given the scripts with marksheets to Markgraaf, who took a few at random and checked whether the marks on them correlate. Markgraaf handed the scripts back to Fraser the same day.
He did leave a note on the scripts that it was from Belhaar School and that it was the scripts. He did not doubt that Fray would see it when he arrived at the office.
A month later Fraser telephoned Fray about the scripts. Fray said to him
That he hopes it had not become lost in the system.
Fraser was happy that it would be found as it had been clearly marked so paid no further attention to the matter.
When Fray visited the school in November regarding the teachers’ portfolios the problem surfaced. Two other teachers had not handed in their scripts for grade 9 but were not charged.
When Fraser started marking grade 12 scripts on 2 December he was asked by an official of the respondent to stop marking and to leave the centre immediately.
At the marking centre was a table with his name on it. Fraser’s salary was never reduced and he was not excluded from SMT meetings.
In January 2011 Margraaf called Fraser to the office together with the 2 deputy principals and explained to him that his normal HOD duties for English would be taken from him and given to Jenneker, his subordinate since 2003.
Fraser had therefore been punished without being charged and was punished again in respect of his being suspended without pay.
Fraser had consequently had the learners rewrite the task 5 examination in November as he had wanted to protect them because they had obtained good marks. This he had done without the permission of Fray. The other two teachers had not been charged when they had failed to submit their scripts. Fraser was their immediate supervisor and had not charged them with any offence. He had in fact marked Christians’ scripts as he was going to Mauritius.
Notwithstanding Fraser’s being Jenneker’s head for 8 years in 2011 Jenneker was given papers to moderate while he was not. She would sign these papers as the subject head.
In 2010 Fraser and Petersen moderated the papers.
THE EVIDENCE FOR THE RESPONDENT:
During November 2010 some learners in Fraser’s class asked Markgraaff why they had to rewrite the task 5 examinations for June 2010.
They said that Fraser had told them that the department wanted their scripts but that he had lost them.
Thereafter Fraser handed in five or six scripts to Markgraaff who noticed that the marks were exactly the same as those on the marksheet which he had for the June examinations.
Markgraaff then called in all the portfolios of all the classes Fraser taught and went through all of them.
He found that there were no task 5 examinations in the portfolio of the learners Fraser was responsible for.
When Fraser then explained to Markgraaff what had happened Markgraaff telephoned Fray who said that he had not received the scripts.
Markgraaff did not get the scripts from Fraser in June and neither did he do a spot check on them.
Markgraaff does not do moderating. The correlation of the scripts and the marksheets are the responsibility of the head of department and someone from the department would moderate those. Moderation could also be done by peers.
Markgraaff was aware of Fraser’s having assisted Christians and that he had marked her scripts.
The hard copies of scripts are kept by the educator for the portfolios.
Jenneker was not aware of Markgraaff wanting task 5 scripts for June to be submitted as this is not usually done.
In 2010 Fray had not received any June task 5 scripts from Fraser. According to Fray when scripts are delivered to him at the office they would normally not be accepted at reception. He would be notified of the arrival of the visitor. There was also a register for visitors to sign.
The notification that Fray had sent to the school was not only for Fraser’s work but for the entire English department. Fraser had explained to Fray that he had only dropped his scripts as the others were still busy marking theirs. It was not the norm to accept scripts from individuals.
On findings and verifications later that year Fray had recommended that Fraser be relieved of some of his duties as subject head but did not insinuate that he be demoted. Fraser still retained his portfolio as the head of department but would be relieved in order to have a little more time to do his work to the required level and standard.
Fray had also made these recommendations in the full knowledge of there being other experienced teachers who would do the work in the manner that it should be done.
Besides the issue regarding the task 5 scripts for June, Fray had found other issues with Fraser’s work. In many instances he could not find evidence of learner performance. In other instances there were a number of tasks missing which made verification impossible.
Fray had learned about the rewriting of the task 5 examinations from Markgraaff as Fraser had not told him about it.
Fray would never recommend a rewrite of what had already been written. He would accept an affidavit that the marks were authentic.
Although Jenneker was a level 1 educator she had proven competencies and has acted in a supervisory capacity as curriculum advisor.
Fray could not recall Fraser’s telephoning him and his telling him that he hopes the scripts had not got lost in the system.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
40. Fraser contends that he has been punished twice for the same offence and accordingly that this is unfair.
41. The evidence shows that the respondent had considered Fraser to be involved in a misconduct which potentially involved some act of dishonesty. He had acted contrary to an instruction from Markgraaff not to deliver scripts to the district office but nevertheless did so
42. The circumstances in which Fraser then tried to correct this wrongdoing was to engage in what legitimately could appear to be a cover up of his initial wrongdoing i.e. to have the learners rewrite the examinations in order seemingly to cover up the fact that he had disobeyed Markgraaff’s instruction.
43. Fraser’s conduct furthermore would legitimately give rise to a suspicion that he had in the first instance not even marked the scripts of the learners having done the task 5 examinations for June.
44. In fact the conduct of Fraser is indicative of one wanting to avoid legitimate disciplinary action. This in itself constitutes an undermining of the respondent’s disciplinary processes.
45. The further act which points to the dishonesty manifested by Fraser is the fact that he had then allocated to the learners at the rewrite precisely the same mark that he had allegedly allocated in the first place and which is reflected on the marksheet. It is highly improbable that a learner would get the same mark in circumstances where the answers in the two examinations could not have been the same or where it is improbable that permutations could be attained from answers different to those given in the first writing of the examination.
46. In respect of the respondent’s in these circumstances then denying Fraser the right to continue marking grade 12 scripts, I am of the view that such action is justified as precautionary. In fact it would have been inappropriate to allow Fraser to continue marking any scripts within the context of the prevailing uncertainty and the suspicious circumstances that prevailed.
47. Regarding the contention of Fraser that his role as head of department had been diminished when certain duties had been removed, the evidence is again clear particularly in relation to Jenneker. Her function again concerned the marking or moderating of scripts, a function which clearly the respondent would justifiably have been reluctant to have him perform, given the above stated circumstances.
48. The evidence is thus not of Fraser’s having actively been replaced by Jenneker but rather of his necessarily having to be relieved of certain of his duties. The circumstances then arose in which the duties had to be performed and thus the appointment of Jenneker to do so.
49. This legitimate intervention by the respondent in the duties of Fraser cannot therefore be said to constitute a demotion
50. Further in this regard the testimony of Fray is clear and unambiguous in the reasons that he had in fact recommended assistance for Fraser. Nothing in his reasons given suggest anything unfair or unlawful, which would have had to have been the case had the conduct of the respondent constituted a demotion. Fraser had therefore not been demoted
51. Again I am left with the feeling that all that Fraser is trying to do is to avoid appropriate disciplinary action being taken against him for what is clearly at the very least negligence on his part for the manner in which he had allegedly delivered the scripts to Fray at the district office and his subsequent secretive conduct to correct the situation.
52. Given the serious nature of the offence or offences in their entirety I would not have been surprised had the respondent in fact dismissed Fraser or imposed a more severe penalty than that which it had.
53. Having considered all the evidence presented at this arbitration I find that the conduct of the respondent in imposing on Fraser the sanction of a two months’ suspension without pay and a final written warning does not constitute unfair conduct for the purposes of S186(2)(b) of the Labour Relations Act 66 of 1995 as amended (LRA).
AWARD
54. This application for relief in terms of the provisions of the LRA is dismissed.
PANELLIST: L. MARTIN
6 DECEMBER 2011
Province: Western Cape
Applicant: SADTU obo MM Fraser
Respondent: Department of Education, Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Cape Town
Award Date: 6 December 2011
Arbitrator: L Martin
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN
Case No PSES420-11/12WC
In the matter between
SOUTHERN AFRICAN DEMOCRATIC TEACHERS UNION ON BEHALF OF M.M. FRASER
Applicant
and
DEPARTMENT OF EDUCATION WESTERN CAPE Respondent
ARBITRATION AWARD
________________________________________________________________
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
The arbitration took place at the offices of the Department of Education Western Cape in Adderley Street Cape Town on 17 November 2011. The applicant, Mr. Michael Mitchell Fraser (Fraser), was represented by Mr. B. Maqaza, an official with South African Democratic Teachers Union (SADTU). The respondent, the Department of Education Western Cape (the respondent), was represented by Ms. B. Ndlondlo, a labour relations officer.
THE ISSUE IN DISPUTE
2. Does the conduct of the respondent in imposing on Fraser a sanction of suspension for 2 months without pay and a final written warning constitute an unfair labour practice as contemplated in section 186(2)A of the Labour Relations Act 66 of 1995 as amended (the Act).
THE BACKGROUND TO THE DISPUTE
3. Fraser is an educator at the Belhar Senior Secondary School (the school) and is the head of the English department. He has been in the respondent’s employ for 29 years and earns R231,240.00 (two hundred and thirty one thousand two hundred and forty rand) per annum.
SUMMARY OF EVIDENCE AND ARGUMENT
4. The respondent handed a bundle of documents into evidence. The applicant did not record any objections to any of the documents submitted by the respondent. The applicant did not submit any documents into evidence.
Fraser testified under oath on his own behalf. Joseph Jacobus Markgraaff (Markgraaff) the school principal, Elphinstone Maude-Linghe Jenneker (Jenneker) an educator at the school and Kevin David Fray (Fray) a curriculum advisor, testified under oath for the respondent.
THE EVIDENCE FOR THE APPLICANT:
Contrary to instructions from Markgraaf, Fraser had taken the task 5 scripts to the district office where he left it on the counter without notifying anyone.
He had in June given the scripts with marksheets to Markgraaf, who took a few at random and checked whether the marks on them correlate. Markgraaf handed the scripts back to Fraser the same day.
He did leave a note on the scripts that it was from Belhaar School and that it was the scripts. He did not doubt that Fray would see it when he arrived at the office.
A month later Fraser telephoned Fray about the scripts. Fray said to him
That he hopes it had not become lost in the system.
Fraser was happy that it would be found as it had been clearly marked so paid no further attention to the matter.
When Fray visited the school in November regarding the teachers’ portfolios the problem surfaced. Two other teachers had not handed in their scripts for grade 9 but were not charged.
When Fraser started marking grade 12 scripts on 2 December he was asked by an official of the respondent to stop marking and to leave the centre immediately.
At the marking centre was a table with his name on it. Fraser’s salary was never reduced and he was not excluded from SMT meetings.
In January 2011 Margraaf called Fraser to the office together with the 2 deputy principals and explained to him that his normal HOD duties for English would be taken from him and given to Jenneker, his subordinate since 2003.
Fraser had therefore been punished without being charged and was punished again in respect of his being suspended without pay.
Fraser had consequently had the learners rewrite the task 5 examination in November as he had wanted to protect them because they had obtained good marks. This he had done without the permission of Fray. The other two teachers had not been charged when they had failed to submit their scripts. Fraser was their immediate supervisor and had not charged them with any offence. He had in fact marked Christians’ scripts as he was going to Mauritius.
Notwithstanding Fraser’s being Jenneker’s head for 8 years in 2011 Jenneker was given papers to moderate while he was not. She would sign these papers as the subject head.
In 2010 Fraser and Petersen moderated the papers.
THE EVIDENCE FOR THE RESPONDENT:
During November 2010 some learners in Fraser’s class asked Markgraaff why they had to rewrite the task 5 examinations for June 2010.
They said that Fraser had told them that the department wanted their scripts but that he had lost them.
Thereafter Fraser handed in five or six scripts to Markgraaff who noticed that the marks were exactly the same as those on the marksheet which he had for the June examinations.
Markgraaff then called in all the portfolios of all the classes Fraser taught and went through all of them.
He found that there were no task 5 examinations in the portfolio of the learners Fraser was responsible for.
When Fraser then explained to Markgraaff what had happened Markgraaff telephoned Fray who said that he had not received the scripts.
Markgraaff did not get the scripts from Fraser in June and neither did he do a spot check on them.
Markgraaff does not do moderating. The correlation of the scripts and the marksheets are the responsibility of the head of department and someone from the department would moderate those. Moderation could also be done by peers.
Markgraaff was aware of Fraser’s having assisted Christians and that he had marked her scripts.
The hard copies of scripts are kept by the educator for the portfolios.
Jenneker was not aware of Markgraaff wanting task 5 scripts for June to be submitted as this is not usually done.
In 2010 Fray had not received any June task 5 scripts from Fraser. According to Fray when scripts are delivered to him at the office they would normally not be accepted at reception. He would be notified of the arrival of the visitor. There was also a register for visitors to sign.
The notification that Fray had sent to the school was not only for Fraser’s work but for the entire English department. Fraser had explained to Fray that he had only dropped his scripts as the others were still busy marking theirs. It was not the norm to accept scripts from individuals.
On findings and verifications later that year Fray had recommended that Fraser be relieved of some of his duties as subject head but did not insinuate that he be demoted. Fraser still retained his portfolio as the head of department but would be relieved in order to have a little more time to do his work to the required level and standard.
Fray had also made these recommendations in the full knowledge of there being other experienced teachers who would do the work in the manner that it should be done.
Besides the issue regarding the task 5 scripts for June, Fray had found other issues with Fraser’s work. In many instances he could not find evidence of learner performance. In other instances there were a number of tasks missing which made verification impossible.
Fray had learned about the rewriting of the task 5 examinations from Markgraaff as Fraser had not told him about it.
Fray would never recommend a rewrite of what had already been written. He would accept an affidavit that the marks were authentic.
Although Jenneker was a level 1 educator she had proven competencies and has acted in a supervisory capacity as curriculum advisor.
Fray could not recall Fraser’s telephoning him and his telling him that he hopes the scripts had not got lost in the system.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
40. Fraser contends that he has been punished twice for the same offence and accordingly that this is unfair.
41. The evidence shows that the respondent had considered Fraser to be involved in a misconduct which potentially involved some act of dishonesty. He had acted contrary to an instruction from Markgraaff not to deliver scripts to the district office but nevertheless did so
42. The circumstances in which Fraser then tried to correct this wrongdoing was to engage in what legitimately could appear to be a cover up of his initial wrongdoing i.e. to have the learners rewrite the examinations in order seemingly to cover up the fact that he had disobeyed Markgraaff’s instruction.
43. Fraser’s conduct furthermore would legitimately give rise to a suspicion that he had in the first instance not even marked the scripts of the learners having done the task 5 examinations for June.
44. In fact the conduct of Fraser is indicative of one wanting to avoid legitimate disciplinary action. This in itself constitutes an undermining of the respondent’s disciplinary processes.
45. The further act which points to the dishonesty manifested by Fraser is the fact that he had then allocated to the learners at the rewrite precisely the same mark that he had allegedly allocated in the first place and which is reflected on the marksheet. It is highly improbable that a learner would get the same mark in circumstances where the answers in the two examinations could not have been the same or where it is improbable that permutations could be attained from answers different to those given in the first writing of the examination.
46. In respect of the respondent’s in these circumstances then denying Fraser the right to continue marking grade 12 scripts, I am of the view that such action is justified as precautionary. In fact it would have been inappropriate to allow Fraser to continue marking any scripts within the context of the prevailing uncertainty and the suspicious circumstances that prevailed.
47. Regarding the contention of Fraser that his role as head of department had been diminished when certain duties had been removed, the evidence is again clear particularly in relation to Jenneker. Her function again concerned the marking or moderating of scripts, a function which clearly the respondent would justifiably have been reluctant to have him perform, given the above stated circumstances.
48. The evidence is thus not of Fraser’s having actively been replaced by Jenneker but rather of his necessarily having to be relieved of certain of his duties. The circumstances then arose in which the duties had to be performed and thus the appointment of Jenneker to do so.
49. This legitimate intervention by the respondent in the duties of Fraser cannot therefore be said to constitute a demotion
50. Further in this regard the testimony of Fray is clear and unambiguous in the reasons that he had in fact recommended assistance for Fraser. Nothing in his reasons given suggest anything unfair or unlawful, which would have had to have been the case had the conduct of the respondent constituted a demotion. Fraser had therefore not been demoted
51. Again I am left with the feeling that all that Fraser is trying to do is to avoid appropriate disciplinary action being taken against him for what is clearly at the very least negligence on his part for the manner in which he had allegedly delivered the scripts to Fray at the district office and his subsequent secretive conduct to correct the situation.
52. Given the serious nature of the offence or offences in their entirety I would not have been surprised had the respondent in fact dismissed Fraser or imposed a more severe penalty than that which it had.
53. Having considered all the evidence presented at this arbitration I find that the conduct of the respondent in imposing on Fraser the sanction of a two months’ suspension without pay and a final written warning does not constitute unfair conduct for the purposes of S186(2)(b) of the Labour Relations Act 66 of 1995 as amended (LRA).
AWARD
54. This application for relief in terms of the provisions of the LRA is dismissed.
PANELLIST: L. MARTIN
6 DECEMBER 2011