Case Number: PSES 435-14/15
Province: Free State
Applicant: M S TSHABALALA
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Poor Work Performance
Award Date: 20 November 2015
Arbitrator: Jerome Mthembu
Commissioner: Jerome Mthembu
Case no: PSES 435-14/15
Date: 20 November 2015
In the matter between:
M S TSHABALALA
DEPARTMENT OF EDUCATION - FS Applicant
DETAILS OF HEARING AND REPRESENTATION:
1. The hearing was held on 10 September 2015. The Applicant was represented by Mrs Mabasa who is an attorney and the Respondent by Mr Tladi.
2. The parties dispensed with oral evidence and filed arguments as follows:
2.1 The Applicant on 29 September 2015;
2.2 The Respondent on 13 October 2015. The Respondent was granted an extension to amplify its argument and filed same on 8 November 2015.
2.3 The Applicant replied on 17 November 2015.
THE ISSUE TO BE DECIDED:
3. The Applicant challenged the findings and sanction of his disciplinary hearing.
BACKGROUND TO THE ISSUE:
4. The Applicant is an educator at MotekaSecondary School.
5. The learners at the school were performing poorly.
6. The results in question were for March 2013 i.e. first term.
7. The Respondent then introduced an improvement plan called the “one on one strategy”.
8. Not all the educators at the school were happy with this improvement plan, particularly members of SADTU were unhappy.
9. Some educators participated in the improvement plan and the Applicant and some SADTU members did not.
10. The Respondent then decided to institute disciplinary measures against those educators who did not participate.
11. A range of sanctions short of dismissal were meted to these educators, depending on the circumstances of each case.
12. The Applicant received a sanction of a fine of one (1) month salary.
SURVEY OF THE ARGUMENTS:
13. The Applicant submitted that the presiding officer was incorrect in finding him guilty of contravening the provisions of Section 18(1) of the Education Laws Amendment Act, 53 of 2000.
14. He averred that the “one on one” strategy was unlawful and unreasonable, as it was contrary to the Basic Conditions of Employment of Educators as provided by the Personnel Administration Measures (“PAM”) entailed in the Employment of Educators Act 76 of 1998, which provides as follows:
“All educators should be at school during formal school day, which should not be less than 7 hours per day, except for special reasons and with the prior permission of the principal. The principal will exercise his/her discretion in this regard based upon provincial policy. The 7 hour day included the breaks and the periods in which the learners are not at school.”
15. Item 8 of the “one on one” strategy provided for compulsory extra classes outside the 7 hour per day. This was inconsistent with PAM as there was no agreement reached with the educators regarding the extra classes and compensation thereof.
16. The “one on one” strategy was introduced by the SMDG or DCES and was null and void as it was not designed as prescribed by item 8 of the Education Laws Amendment Act.
17. The school had already implemented its own academic improvement plan adopted by all educators and heads of department.
18. The authority to implement the school academic improvement plan vests on the principal and not the SMDG or DCES.
19. The SMDG or DCES is there to guide, advice and support the principal.
20. The presiding officer was therefore wrong to find the Applicant guilty of failing to carry out a lawful instruction as the instruction was unlawful.
21. The sanction imposed by the presiding officer was based on an erroneous finding of guilty.
22. The Respondent was also inconsistent in charging the educators as some educators in the Applicant’s department where he was the HOD were not charged for not submitting their weekly reports to him (the HOD).
23. The educators also collectively lodged a grievance with a Mr Du Preez, Deputy Director whilst waiting for his intervention, some of them including the Applicant received charges of contravening Section 18(1) of the Education Laws Amendment Act 53 of 2000.
24. The grievance was lodged with the Deputy Director after it was initially lodged with the principal who failed to take any action.
25. The Respondent agreed that it gave an instruction to all failing schools to improve performance through the “one on one” strategy.
26. In this instance the instruction was given through its agent Mr Maleka the SMDG.
27. The Respondent applied the strategy in the whole province. The Applicant and his group refused to implement the strategy thereby refusing to carry out a lawful instruction.
28. PAM, page C63 Clause 4.1 provides that:
“Management in education should be able to draw on the professional competences of educators, build a sense of unity of purpose and belief that they can make a difference. When and where appropriate authorities need to allocate authority which will ensure building human resource capacity.”
29. The third paragraph of this document states that:
“In addition to the core duties and the responsibilities specified in this section, certain specialised duties and responsibilities may be allocated to staff in equitable manner by the appropriate representative of the employer.”
In this instance Mr Maleka as the SMDG is one of the appropriate representatives of the employer and cannot be isolated from such representatives.
30. The Respondent averred that the Applicant acceded and agreed to the strategy at a meeting and did not show any dissatisfaction.
31. It was only after this meeting when the group of the Applicant, wrote a letter to the Chief Education Specialist: Management and Governance, Mr Du Preez, indicating to him that they will not be implementing the strategy.
32. The strategy was directed at educators teaching Grade 12. It therefore cannot be correct that all educators should have been charged.
33. The Respondent submitted that should the Applicant have felt bad about the strategy, he had an obligation to fill in the grievance form as outlined in Chapter H of the Employment of Educators Act and not to engage himself in insubordinate behaviour.
34. The Applicant contended that the letter of objection written by the union on behalf of its members, should be construed as a grievance as envisaged in Chapter H.
35. That the strategy in a way compelled the educators to work overtime and refusing to work overtime should not be regarded as insubordination or misconduct.
ANALYSIS OF THE ARGUMENTS:
36. The fact that some submissions that have not been mentioned does not mean that they have not been considered.
37. In my view the crisp issues to be determined are firstly whether the SMDG had the authority to call for the implementation of the “one on one” strategy, secondly, whether the letter to the SMDG constituted a grievance.
38. It stands to reason that should these issues be determined in the Applicant’s favour, then the sanction will then automatically fall away.
39. The document dealing with “one-on-one” strategy addressed to the Harrismith cluster, was signed by the SMDG and the principal of Moteka Secondary School. This rendered the instruction to be lawful
40. It must be borne in mind that the Applicant argued that “the authority to implement school academic plan vests on the school principal and not the SMDG. As a result the one on one strategy is null and void, and thereby renders the instruction to be unlawful.”
41. Since the document was signed by the principal and the SMDG the question is whether the above argument can be sustained.
42. The answer to the above question is No. By signing the document the principal authorised the implementation of the one-on-one strategy. The argument that the strategy was imposed on educators by the SMDG and that it was unlawful is without merit.
43. In my view the SMDG as a representative of the Respondent has the authority to come up with such strategies. PAM also supports this as argued above by the Respondent. The strategy cannot viewed as compelling educators to work overtime.
44. What I found also to be startling was a letter by the principal submitted by the Applicant, addressed to the exam officer wherein the principal requests the withdrawal of his signature and that the marking application forms of the Applicant and other educators be returned.
45. The reason stated by the principal for his action is that “these educators are not performing as expected in their learning areas and they are opposing to intervention strategies introduced to assist in improving learners’ performance and they are bringing the school into disrepute”. This summarised the conduct of the Applicant and his group.
46. On the second issue the letter to the SMDG has not been acknowledged. It also does not state on behalf of which members of the union it is written, it is not on the union’s letterhead, it is signed by the chairperson, secretary and convenor without these signatories stating for which entity they are signing the said letter save to state in the opening thereof “we the site executive committee of SADTU …”, it is not undersigned by the Applicant or any affected member.
47. The procedure to lodge a grievance is clearly set out in Chapter “H” of the Employment of Educators Act. In my view the above letter cannot therefore based on the shortcomings above be purported to be a grievance or be construed as such.
48. The Applicant was therefore correctly found guilty of failing to carry out a lawful instruction in terms of misconduct referred to in section 18(1)(i) of the Employment of Educators Act and not section 18(1) of the Education Laws Amendment Act ,53 of 2000 and the finding should stand. I believe that the Applicant has quoted the incorrect legislation.
49. It then follows that the sanction imposed on the Applicant should also stand.
50. The Applicant was correctly found guilty of misconduct and the sanction imposed on him is confirmed.
51. The Applicant’s case is accordingly dismissed without an order for costs.