Case Number: PSES17 &14-12/13 MP
Applicant: Mathibe Oscar- Phephetha V & 11 Others
Respondent: Department of Education, Mpumalanga
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 9 February 2013
Arbitrator: Raynold Bracks
Commissioner: Adv Raynold Bracks
Case No.: PSES17 &14-12/13MP Consolidated
Date of Award: 9 February 2013
In the ARBITRATION between:
MATHIBE OSCAR- PHEPHETHA V & 11 OTHERS APPLICANT
DEPARTMENT OF EDUCATION: MPUMALANGA RESPONDENT
Applicant/Union: SADTU obo Mathibe O –PhephethaV a &11 Others____
Applicant’s address :
Telephone: 013 947 3079
Telefax: 013 947 3076
Respondent: Department of Education: Mpumalanga
Respondent’s address: Private Bag x11341
Telephone: 013 766 5352
Telefax: 086 680 1904
DETAILS OF HEARING AND REPRESENTATION
1. The Arbitration was scheduled for hearing at the offices of the Respondent at Nkangala, Building 5, KwaMhlanga Government Complex, KwaMhlanga, on 21, 22 and 23 January 2013. The Applicants were represented by Michael Mahlogoane a union official. The Respondent was represented by Hlahla Ngwenya the Respondent’s Deputy Director of Labour Relations.
ISSUE TO BE DECIDED
2. Whether or not the Respondent had properly interpreted and applied Collective Agreement No. 2 of 2003 (Agreement).
BACKGROUND TO THE ISSUE
3. The matter involves 14 teachers at the Vukuzame School where Collective Agreement No. 2 of 2003 was to be implemented. The said Agreement deals in particular with the transfer of serving educators in terms of operational requirements. At a meeting on the 21st November 2011 the principal Mr. Selahla advised the educators that they needed to identify three level 1 posts which had become excess posts at the school. During the meeting a heated discussion ensued which resulted in 14 teachers walking out. Despite this 3 teachers were identified namely V. Phepheta, R.N. Skosana and OGR Mathibe.
4. The three teachers were accordingly advised. In addition the principal reported to the Circuit Manager which posts and educators had been identified and it was confirmed.
5. On 29th March 2012 the union raised a dispute which was referred to Council in respect of the interpretation and application of the Agreement.
6. The parties were also allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity the details of this will not be repeated in the award but it should not be construed that it was not considered. Furthermore, the parties agreed to submit the closing arguments in writing by no later than 25th January 2013.
7. In addition it is a requirement of the Labour Relations Act in section 138(7)(a) that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. For this reason only the salient points will be mentioned in the award. It is to be noted further, that despite this the submissions have been considered in detail in the writing of the award.
SURVEY OF EVIDENCE AND ARGUMENT
** As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration; it is by no means a minute of what transpired in the course of the proceedings.
8 Both parties submitted documents marked ‘A’ - ‘D’.
The Applicants called three witnesses who after being sworn in testified as follows:
KHUZANE JOHANNES MAHLANGU TESTIFIED THAT:
9 He has been an educator since 1 January 1990 and a P1 senior teacher at Vukuzame School. On the 20th November 2011 all educators were given a copy of the Agreement in order to apprise themselves with the procedure to be followed in respect of the transfer of excess teachers.
10 On 21st November a meeting was held for the allocation of subjects. This allocation meeting did not follow the process as was done in the past. He proceeded to explain this in detail. As a result, he said the educators were dissatisfied.
11 An hour after the first meeting around 13h00 the principal called a second meeting. Under normal circumstances they were not required to sign an attendance register. This was the first time they had to do it. At the commencement they were shown the post establishment of the school. The principal explained the school structure as well as which teachers needed to be identified as they were in excess. During the course of the meeting it became clear that two groups had developed: the 14 teachers and another group that clearly supported the principal. The witness gave a detailed account of the heated discussions that ensued in the meeting. According to him it became clear that certain educators had already been identified for transfer.
12 Concerns were raised because not all the teachers were present at the meeting and they wanted the process to be adjourned. Further, the principal failed to explain to them the procedure that was going to be followed in terms of the Agreement. However, what was of greater concern to them was the allocation to teachers of subjects that were to be taught the following year. The allocation was skewed to target certain teachers for transfer since in the past the allocation was first discussed and agreed upon.
13 When they got to the second meeting there was already apprehension among the teachers because of the issues mentioned above. The meeting became very volatile and heated and was eventually adjourned at the end of the day. It continued the following day but it was no different. The principal continued to avoid the questions being asked. There were a number of interjections from the educators who had taken guard behind him even though questions were not posed to them. It did not make sense to them why certain teachers were identified. He explained in detail the concerns that were raised around the teachers who were identified. They received no satisfactory answers.
14 In terms of section 2.4 (d)(iii) of the Agreement they were supposed to be informed in writing by the Department and this was done. Further, in terms of 2.4 (g) the head of the Provincial Department may transfer an educator who is in addition to another post in the Department that matches his skills and experience. They failed to do this as teachers were not placed according to their skills. Mathibe and Phephetha were placed at Junior Secondary schools. This was not in accordance with their specialization.
15 They were only given the Agreement but not the agreement concluded in 2010. They were also not given any other documents. Their complaints that there were clearly a number of irregularities in the allocation were completely ignored. Also, Deputy Director Mohlabane commented that he was amazed that teachers were required to teach subjects they did not specialize in. Mathibe was an Economics and Business Economics specialist yet he was required to teach Life Orientation and placing him in GDE and not FET might disadvantage learners as he did not understand the subject.
16 At no stage was any reason given as to why the allocation was never discussed despite them raising various objections and making proposals.
MONAMA WALTER LEARNED NDALA TESTIFIED THAT:
17 He was employed as an educator at Vukuzame FET on 1 June 2004. When he started he taught English and later Maths Lit. This year he is teaching both.
18 Allocations were done according to the teacher’s specialization but teachers were consulted to teach other subjects as well.
19 In 2011 the school had an oversupply of teachers. On 22 November he was at a meeting to identify teachers for transfer. He volunteered to be relocated as he wanted to leave the school. This was not entertained. There was a lot of dissatisfaction regarding the procedure that had to be followed. Mathibe was identified for Life Orientation (L.O.) but he specialized in Economics and Business Economics.
20 Mathibe was requested to help in L.O. The witness believed there was some prejudice because Mathibe wrote a letter stating that he was withdrawing from L.O. Ms. Phephetha was employed for CAT which they decided would be re-introduced in 2012 but she was identified for English.
21 The Agreement states that if a person volunteered he should be considered and if two or more were contesting for the same subject LIFO must be followed.
22 He did not remember getting the Agreement earlier. He received it on 22 November and made copies. At the second meeting no explanation was given of the process. He was not necessarily conversant with the document but it required discussion.
23 There was a walkout by the teachers but he was not part of it. He enquired why the teachers were walking out and after this he volunteered. The process continued and teachers were identified. His evidence concurred with that of Mahlangu regarding who were identified. He was not sure on what basis Skosana was identified. In fact on that day she was not present at the meeting as she was suspended. In his view the procedure was not followed properly as the teachers were not identified according to subject but were targeted. If LIFO had been used other teachers would have been identified. He believed the head of the school should also have been considered in the process.
24 He referred to C1 & C2 and questioned why he was not identified for some of the subjects. He did not receive the subject allocation. The teachers who walked out had a number of questions but were told their concerns would not be dealt with and the identification process would proceed. Very few teachers remained who were mostly the Principal’s henchmen. As a result of these issues a letter was sent to the Circuit Manager who advised them he was satisfied with the procedure.
PETER MASILELA TESTIFIED THAT:
25 He had been at the Vukuzame School since 1990 as a Post Level 1 Senior Teacher but as of the 4th May 2012 he has been relocated.
26 He was present on the day of the meeting and he confirmed the evidence of Mahlangu and Ndala. In the main he confirmed the evidence of these witnesses and as far as it pertains to those areas where the evidence is corroborated it will not be repeated.
27 He mentioned that they were particularly concerned that CAT was being phased out especially since this was a subject the community required. The principal failed to make decisions on his own and they were unhappy because of this. A decision was reached previously regarding the continuation of CAT and he refused to entertain any discussion on the issue.
28 When it came to the issue of allocation and identification it was clear that favouritism played a major role. He then raised the question whether or not the secretary should have been present at the meeting as her status at the school was questionable. He requested permission to leave which he was given.
29 He confirmed the evidence about the procedure for the identification and said that as far as he recalled the Agreement was never given to him. Until 2011 Mr. Makena did the allocation and during that process it was done in consultation with the teachers. However in 2011 the principal did the allocations. They had expected that the normal procedure would be followed.
The Respondent called two witnesses:
Furniture Selahle, Principal, after being affirmed testified that:
30 He is the principal at Vukuzame Secondary School. According to him the process of identifying teachers is triggered by the receipt of a post establishment. In 2011 they had 27 SC educators’ posts. Toward the end of 2011 the post establishment indicated that due to a drop in the learner numbers only 24 posts were available as opposed to the 27 they had had previously. He continued to explain the structure.
31 He then called a meeting at which he informed the staff of the post establishment. In the meeting he advised them that the procedure required them to meet and identify the posts. He further provided the educators with a copy of the Agreement in order to ensure that they were au fait with the procedure. In the process the workload was also discussed as this was normally done annually. He explained how this was done. This responsibility was delegated to an SMT member and once the exercise was done it was communicated to staff. He invited staff to a meeting however due to the exams it could not proceed on the day.
32 Staff was then informed of the new date and he also informed them of the process of identification. The meeting was held on 21 November 2011. He confirmed that they started with the allocation meeting and referred to A1 in support of this evidence. A7(1-5) supported that the allocation was done.
33 The identification meeting then followed. In the allocation meeting it was made clear that the Collective Agreement had to be brought along. A5, A6 and A8 were distributed. The proceedings of the meeting centered on the Agreement. He made sure that they signed the attendance register (A9). The meeting proceeded smoothly and staff engaged in the process. They acknowledged receiving it in advance. He used the Agreement to ensure understanding of the process. He told them that three level 1 posts had to be identified. During the process staff felt there were Department posts which should be identified. Staff came up with the following posts: English, Mathematics and Life Orientation.
34 A situation arose that indicated that members did not seem to understand the Agreement and he assisted them. One of the teachers (Ndala) volunteered to be identified. He explained the process in detail. The process was successfully concluded.
35 The meeting continued on the 22nd November and started well. Staff members asked questions about the allocations and were told it was not the time to discuss this. He confirmed that staff chose to walk out. He expected staff to be present as their views were important. They denied themselves the opportunity to engage. The meeting proceeded in their absence.
36 After the meeting he decided to write to those who had walked out to find out the reason [A10 (1-10)]. None of the staff acknowledged receipt of the letter; they just threw it around. After the minutes was completed he was invited by the District to give a report on what had transpired. The employer and the union were represented. He presented the outcome and there was deliberation. It was acknowledged that it was fair. He reiterated that staff had walked out; he had written the letters and no one responded.
37 In January 2012 the Circuit Manager sent letters to those who had been identified to attend a meeting. The letter was given to him to pass on to them. They refused to accept the letters. They seemed very angry and he did not believe they could be engaged any further. They had no option but to adhere to the Department. The document was communicated more than 14 days.
38 The meeting was prepared well in advance and they understood that they had to participate fully. He was disappointed that some of them decided to leave the meeting. He explained in detail the process followed and the absence of the educators. They decided to continue with the meeting. He then explained why the meeting was so important as per the Agreement 2/2003. The certificate told the school what they qualified for so it had to be done post haste. The meeting had to be completed because there were educators going out to mark. Their concerns were not something that could be entertained in that meeting. This was the first time they had more than the required number of posts. He explained the main need to follow the Agreement.
Mathews Junie Soka, after being sworn in testified that:
39 He is employed at the Vukuzame Secondary School and is an HOD. He confirmed that they had received the post establishment which indicated that they were in excess by three teachers. They then proceeded to do load distribution to determine what manpower was required and had to decide how to identify the posts. The criterion used was to determine which subjects had more manpower and decided that these subjects needed to be reduced. The subjects identified were Life Orientation, English and Maths.
40 They were given the Agreement before the identification process started. Initially the meeting was to be held on 18th November but was postponed to the 21st. The Agreement was given to the educators well before the 18th.
41 The allocation meeting was held first and then adjourned as they had exhausted the workload allocation. There was a second meeting at which the identification took place. As a result some teachers walked out but the meeting continued and decisions were made regarding those identified. This was binding on all the teachers.
42 The Principal enquired from the teachers who had walked out why they had done so. None of them responded. The teachers also had the opportunity to raise their concerns with the site committee but did not do so. The only conclusion that could be drawn from this was that they were happy with the process.
43 The disgruntled teachers wrote to the Circuit Manager who responded to them. In the discussions concerns were raised. They could not proceed to the identification meeting unless the workload allocation was done. He confirmed who had been identified and said there was no deviation from the procedure; if people were dissatisfied with the process they should have raised it with the Principal and if they were still unhappy they could have raised it with the Site Office of the union who would then have raised it with the Circuit Office.
The parties presented their closing arguments and as it is a matter of record it will not be repeated here.
ANALYSIS OF EVIDENCE AND ARGUMENT
44 In the present case I am required to determine Whether or not the Respondent had properly interpreted and applied Collective Agreement No. 2 of 2003 (Agreement).
45 Sections 24(2) provides that “ If there is a dispute about the interpretation or application of a collective Agreement, any party to the dispute may refer the dispute in writing to the Commission if-
(a) the collective Agreement does not provide for a procedure as required by subsection (1);
(b) the procedure provided for in the Collective Agreement is not operative; or
(c) any party to the Collective Agreement has frustrated the resolution of the dispute in terms of the Collective Agreement.”
46 Sections 24 (5) further provides “If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.”
47 As the evidence has already been fully presented I will only be referring to the salient points thereof and not regurgitating it.
48 The Collective Agreement No. 2 of 2003 which was concluded between the various interested parties provides as follows:
“TRANSFER OF SERVING EDUCATORS IN TERMS OF OPERATIONAL RQUIREMENTS
(a) Operational requirements for education institutions are based on, but not limited to the following:
(i) Change in learner enrolment.
(ii) Curriculum changes or a change in learners’ involvement in the curriculum.
(iii) Change to the grading or classification of an institution.
(iv) Merging or closing of institutions.
(v) Financial constraints.
(b) Subject to regulations on post provisioning, a head of a provincial department of education must, from time to time, inform each institution of its new educator post establishment. As a result of operational requirements the new staff establishment may provide for fewer posts than the existing staff establishment or the skills requirements of the new establishment may not match the skills profile of the incumbent educators. As a result, some serving educators may be in addition to the new establishment.
(c) Each principal must inform his/her staff of the institution’s new educator post establishment and of the procedure, as set out in the next paragraph, that will be followed in identifying educators who cannot be accommodated on the new establishment. This information must be accessible to all members of staff.
(d) The procedure for the identification of serving educators in addition to the establishment as a result of operational requirements shall be:
(i) The Principal, after consulting with the educator staff of the institution at a formal staff meeting, may recommend that educators who may be declared in addition, be absorbed in vacancies that exist or will exist in the near future (not longer than six months) at that education institution.
Vacancies that will exist in the near future refers to vacancies as a result of educators, at the particular institution, leaving as a result of retirement, boarding, resignation, promotion and employer initiated discharges, where the date of exit is known.
(ii) After considering (i) above, the Circuit/District Manager together with the Principal shall identify the educators in addition, taking into account the following:
· The views of the educator staff of the institution as expressed at a formal meeting convened by the principal;
· The needs of the institution, more particularly in relation to its specific curriculum obligations, the number of classes, the timetable and the allocation of learners to classes;
· The Circuit/District Manager shall take cognizance of the fact that there is not necessarily a direct relation between the posts identified as in addition and an educator who will be declared in addition, as there may be more than one post with substantially the same duties attached to it;
· If a decision has to be taken regarding two or more educators competing for the same post, the principle of “last in, first out” (LIFO) shall be applied. An educator’s service period for the application of LIFO shall include all continuous service rendered at any public education institution.
· One representative per trade union party to the ELRC shall be invited by the Circuit/District Manager to observe the process.
(iii) An educator who has been identified as in addition shall be so informed, in writing, by the provincial education department concerned.
49 The onus rested upon the Applicants to show that the Respondent had failed to interpret and apply the section of the Agreement as quoted above. It called three witnesses. The evidence of these witnesses centered on the fact that the Agreement was not explained to them. Further that there was not proper allocation of the workload and that as a result the wrong people had been identified as it was not done in accordance with their subject specialization.
50 Concern was in particular raised that Mathibe was identified for Life Orientation but was an Economics and Business Economics specialist. I believe that it would be appropriate to dispense with this issue at this time. The evidence clearly shows that an agreement was reached with Mathibe after consultation to focus on the teaching of Life Orientation. He had further expressed his gratitude for this opportunity.
51 It can hardly now be argued that because Life Orientation is now identified that the process should be reversed. It would unfair on the other teachers who would be negatively affected by the process if suddenly Mathibe was to be allocated either Business Economics or Economics. I have sympathy for Mathibe that he ended up being one of the casualties but he had made the choice to focus on Life Orientation and should live by that choice. I therefore find it disingenuous on his part to want to withdraw from teaching the subject after the subject was identified. Mathibe had benefited from the training and was very happy to be given the opportunity to attend the workshops. His position was one of those identified and the Applicants have not convinced me that this position was wrongly identified. I am therefore not convinced that the Agreement was incorrectly applied.
52 Further evidence was that the teachers who walked out were disgruntled with the manner the allocation of the workload was done. I have gone through the procedure and could not find anything in it which states that this needs to form part of the procedure. Also, the Principal stated that the first meeting was regarding the workload and that the meeting was completed but some educators were still raising allocation issues and he did not believe that this was the forum to raise those issues.
53 The Agreement required teachers to meet and to identify the posts that are in excess. This is exactly what the Principal did. This process was disrupted by the educators who were more interested in issues about the allocations and when they could not have their way they decided to abandon the process by walking out.
54 The Applicants were also at pains to state that because some of the educators were absent the process should not have proceeded. This argument is baseless for the following reasons. There is nothing in the Agreement which states that all the teachers need to be present for the process to continue. If this was indeed the case then it would mean that the process would have had to be delayed indefinitely as the one teacher was suspended and there was no guarantee when she would be back. Further it seems to be clear that the educators had hoped that the process would have to be abandoned hence they walked out.
55 The issue before me is the interpretation of the Agreement. I must state that it boggles the mind that the Applicants allege that the Agreement was not correctly interpreted when they had opted to abandon the process. It was clear from the evidence that they were not in the process when the positions and teachers were identified so how could they allege that the Agreement was not correctly applied and/or interpreted. When they walked out of the process they chose to no longer be part of it. This was a conscious choice and therefore they cannot now complain.
56 They should have stayed in the process and lodged an objection if they were still dissatisfied. They had their union on site that could have engaged the Principal. The further undisputed evidence was that the Principal had given them the opportunity to explain why they were discontented but again they did not seize the opportunity to make known their dissatisfaction. Finally their union was part of the report which was done by the Principal to the Circuit Manager. Once again the union does not raise its objection regarding the Principal’s failure to follow the procedure. In fact the evidence was that the Principal was congratulated.
57 I was impressed with the Principal’s evidence especially the full minute he presented regarding the procedure. I could not find anything which seemed to suggest that he did not understand the procedure and that he failed to apply it as per the Agreement or that he interpreted it incorrectly. In fact the Principal was clear that in the positions where there were competing educators LIFO was applied. This was exactly as the Agreement prescribed.
58 For the reasons stated above it is my view that Collective Agreement No. 2 of 2003 was correctly applied and interpreted by the Respondent.
The case against the Respondent is accordingly dismissed
ERLC Senior Commissioner
Adv Raynold Bracks