Case Number: PSES 311 – 11/12 NW
Province: North West
Applicant: Ms. BJ LEKHOE
Respondent: DoE / Ms. H VAN ROOYEN
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: DoE North West
Award Date: 3 August 2012
IN THE ELRC ARBITRATION
Ms. BJ LEKHOE “the Applicant”
DEPARTMENT OF EDUCATION – NORTH WEST PROVINCE “the 1ST Respondent”
Ms. H VAN ROOYEN “the 2ND Respondent”
Case Number: PSES 311 – 11/12 NW
Date of arbitration: 11 June 2012
Date of award: 03 August 2012 (extension arranged)
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
1 DETAILS OF HEARING AND REPRESENTATION
The hearing of the arbitration took place on 11 June 2012 at the offices of the North West Department of Education in Vryburg.
The Applicant is Ms. BJ Lekhoe. She was not represented. The 1st Respondent is the Department of Education, North West Province, represented by Ms. L Lejaka. The 2nd Respondent is Ms. H van Rooyen, represented by Ms. M le Roux, an official from SAOU.
2 TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The arbitration takes place in terms of the referral of the dispute by the Applicant.
The parties agreed on the following at the arbitration hearing:
a) To empower the arbitrator to determine whether the non-appointment of the Applicant as SES FET after the restructuring of curriculum specialist positions constitutes an unfair labour practice;
b) To empower the arbitrator to determine whether the Respondent committed an unfair labour practice relating to promotion against the Applicant, and if so, what relief is to be awarded;
c) To empower the arbitrator to determine the dispute in a manner which he deems fair and equitable.
The 1st Respondent submitted documents contained in Bundle A, page 1 to 25. The documents contained in the bundles were accepted by the parties, and form part of the record.
3 OPENING STATEMENTS
APPLICANT submitted the following opening statement:
· She was never consulted in the restructuring.
· She seeks to be appointed in the SES FET post which is occupied by the 2nd Respondent.
1st RESPONDENT submitted the following opening statement:
· The functional analysis affected every employee.
· Two posts that were occupied by the Applicant and the 2nd Respondent were combined, and one post became redundant.
· All the unions were consulted.
· The Applicant was moved to a SES GET post on the same scale and with the same benefits.
· There was no arbitrary action by the Respondent.
4 SUMMARY OF EVIDENCE
The proceedings have been recorded digitally, and a short summary of the Applicant’s witnesses’ evidence follows below.
BOTHSISANG LEKHOE testified that she was never consulted about the restructuring. She was not present in the meeting where everybody was consulted. Her seniors did not respond to her letters. She is now sick with tension and can not work properly. She requires a written apology from her seniors. There is no difference in the post she now occupies and the post she wants, in respect of salary, benefits or status. She seeks some sort of compensation. During cross – examination she testified that she should have been consulted. She is a SADTU member. SADTU was part of the deliberations. She was supposed to have been consulted personally.
EDWARD VAN STADEN CES Professional Support Services testified that extensive consultation took place with all the unions. It is not possible to consult personally with each employee. He referred to Bundle A which contains the rationalization for the audit and restructuring, reasons for allocation of posts as well as proof of consultation. Operational requirements governed the post allocation. Extensive consultations were held with all stake holders. During cross – examination he testified that the person in the post at Taledi was there since 1995 and the LIFO principle is applicable.
5. SUMMARY OF ARGUMENT
APPLICANT submitted the following arguments:
· She was not consulted.
1st RESPONDENT submitted the following arguments:
· There is no unfair labour practice.
· The functional analysis affected all employees in the North West Department of Education and the employer consulted extensively.
2nd RESPONDENT submitted the following arguments:
· As SAOU representative she can confirm there were extensive consultations.
· The case should be dismissed.
5 ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the relevant provisions of the South African Schools Act, no. 84 of 1996 (SASA), the Employment of Educators Act, no. 76 of 1998 (EEA), the provisions of Collective Agreement no. 1 of 2008 as well as the case law relevant to the nature of this dispute. I have considered the arguments of the parties as well as the documentary evidence submitted.
It is common cause that the issue in dispute is one relating to a request to be transferred to a similar post than the one the Applicant is currently occupying. Both are SES posts. The Applicant will gain nothing in respect of post level, salary or status, should she be appointed in the disputed post. The Applicant however referred the dispute as an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA
The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case ……………on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
Dispute resolution tribunals such as the CCMA, Bargaining Councils and specifically the ELRC are creatures of statute whose powers are determined by the empowering legislation. The ELRC can only perform such functions as allowed by legislation and its own Constitution. The ELRC derives its jurisdiction from the LRA, the Basic Conditions of Employment Act, no. 75 of 1997 (the BCEA) and the Employment Equity Act, no. 55 of 1998. In some respects the ELRC Constitution extends the jurisdiction of the ELRC, for instance assuming jurisdiction in respect of enforcement of BCEA provisions in terms of Clause 23 of Collective Agreement 1 of 2006. Arbitrators presiding in these tribunals do not have the power to amend the law or interpret the provisions of the legislation otherwise. The applicable legal provision in terms of which the ELRC may conciliate and arbitrate unfair labour practice disputes, is section 186(2) of the LRA. The relevant provision to this matter is section 186(2)(a), which reads 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 dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;”.
The Applicant alleges an unfair labour practice and must show that it falls within the provisions of the definition contained in section 186(2)(a). The element, to wit “relating to promotion” is relevant in this matter. Grogan, Dismissal, Discrimination & Unfair Labour Practices (2nd Ed) 52 states that employees, like soldiers are promoted when they are “elevated to higher posts”. In the matter of Mashegoane and another v University of the North (1998) 1 BLLR 73 (LC) the Labour Court defined promotion as being “elevated to a position that carries greater authority and status than the current position that the employee is in”. Although not a requirement for promotion, an increase in salary could be indicative of a promotion – see Jele v Premier of the province of Kwazulu-Natal & others (2003) 24 ILJ 1392 (LC). An employee must therefore proof that he applied for a post of a higher status than the post that he occupied at the time.
In casu it is not in dispute that the post in question is the same post level as the one the Applicant is currently occupying, to wit SES. Appointment in the post would not promote the Applicant to a higher post. The post does not carry greater authority and status than the one current position of the Applicant. There is no increase in salary applicable. The Applicant conceded as much.
I am satisfied that the dispute before me does not involve an unfair labour practice related to the promotion of the Applicant as defined by section 186(2)(a) of the LRA.
Even if I, despite my finding that dispute before me does not involve an unfair labour practice related to the promotion of the Applicant as defined by section 186(2)(a) of the LRA, consider the fairness of the actions of the 1st Respondent in terms of the restructuring process, I find no unfair action. There is no evidence that the 1stRespondent acted irrationally, capriciously or arbitrarily. The functional analysis and restructuring concerned all employees of the 1st Respondent, and all unions, including SADTU, of which the Applicant is a member, were extensively consulted. The Applicant’s contention, and only issue in dispute, that she should have been consulted personally, is not reasonable.
I am satisfied that the Respondent did not commit a practice that would constitute unfair action by the Respondent which falls within the definition of an unfair labour practice as provided for in section 186(2)(a) of the Labour Relations Act, no. 66 of 1995. Accordingly the claim must be dismissed.
My award, accordingly, is as follows:
1. I find that the 1st Respondent did not commit an unfair labour practice.
2. The Applicant’s claim is dismissed.
3. No order is made in respect of cost.
COEN HAVENGA: Arbitrator 03 August 2012