Case Number: PSES 726-14/15
Applicant: Betty Rakosa
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 21 November 2016
Arbitrator: Ravi Naidoo
Commissioner: Ravi Naidoo
Case No: PSES 726-14/15
Date of Ruling: 21 November 2016
IN THE MATTER BETWEEN:
Betty Rakosa Union / Applicant / Employee party
Gauteng Department of Education Respondent / Employer party
1.Details of hearing and representation:
The arbitration hearing commenced on the 11 June 2015 and was postponed to July 2015. The matter convened at the Department of Education offices, Johannesburg South District at 2 Robin Close, Meyersdal. The matter had several sittings before being finalised on 28 October 2016. Parties were requested to file all closing arguments by 4 November 2016. The applicant was initially represented by Talita Schirmer, an attorney. The applicant in the latter stages of the arbitration changed her attorney on record to QM Djimba. The respondent, Gauteng Department of Education (GDE), was represented by Vusi Ndlovu from the respondent’s Labour Relations Department.
2.Issue to be decided:
1) Whether the applicant was constructively dismissed.
2) The applicant alleged that the Principal (Ms Elephant) had made her work life intolerable.
3.Background to the issues:
1) The applicant commenced employment with the Department of Education in 1992 as an educator. She worked at Zameleni School until the date of her alleged constructive dismissal on 27 March 2014. The applicant served a notice period until 27 June 2014. The applicant earned R25000-00 per month and was employed in the capacity of HOD at the time of her leaving. The applicant sought to be compensated.
4. Survey of the evidence and argument:
4.1 Applicant’s Evidence
4.1.1 The Applicant, Betty Rakosa testified as follows:
1) The Applicant was employed as an HOD and was part of the School Management Team (SMT). The applicant was responsible for managing support staff as well as educators within her department.
2) The Applicant belonged to SADTU and was a site steward at the school. The Applicant also served on the LSEN task team at the ELRC.
3) The Applicant alleged that the Principal made it impossible for her to perform her duties. Initially the Applicant sought reinstatement. At the pre-arbitration the applicant changed her prayer and sought to be compensated.
4) The applicant referred to her letter of resignation (P72), written on 27 March 2014, in which she cites severe harassment and discrimination by the Principal as the reason for her resignation.
5) On 27 March 2014 there was an SMT briefing. During the briefing the applicant indicated that she had lost a document pertaining to School Governing Body (SGB) feedback. The Principal indicated that there are people in the meeting who take management issues and discuss same at SADTU meetings. The Principal indicated that she did not feel safe in the room anymore. The Applicant indicated that the matter that the Principal was referring to was raised by SADTU at District level and was a matter which was a long standing matter. The Principal adopted an aggressive tone towards the applicant and made the allegation that the applicant wanted to take her out of her post as Principal. The Applicant indicated that the Principal shouted at her and the applicant also responded in a loud tone.
6) The Applicant alleged that the Principal would also shout at other educators including the Deputy Principals.
7) In April 2010, the applicant submitted an application for cross transfer with another educator based at Tsakane. The application was handed to the Principal. Two weeks later the Principal returned the documents and indicated that the District Office had rejected the request as the reasons were not compelling. The applicant indicated that she then approached the District Office and was advised that such documentation was not in their possession. The document was never submitted to the District Office.
8) The Applicant was appointed as HOD in 2009. Prior to be being appointed as HOD the applicant alleged that her relationship with the Principal was strained. After being appointed as HOD, at the second meeting of the SMT the Principal indicated to the Applicant that she was not comfortable with the Applicant, because the applicant had once called her stupid. The applicant could not recall the incident, but apologised.
9) The Applicant referred to the minutes of a meeting which took place between SADTU and the SMT, dated 2 December 2010. The applicant had made a request to be exposed to teaching the advanced learners as a means to upskilling herself. This request was denied by the Principal. The applicant then filed a complaint with SADTU to intervene on the issue of the allocation. A request was made for the applicant to swop with Mr Dubazane, who had agreed to swop with the applicant in terms of the subject allocation. The Principal disagreed with the request. A resolution was passed at the meeting in question that the Applicant and Dubazane would swop responsibilities. The Principal got angry and indicated that her powers were being eroded and stormed out of the meeting. The applicant then headed the department for slow learners while Dubazane headed the department for advanced learners.
10) The applicant referred to a letter (P40) dated 11 February 2011 which was submitted to Zimeleni School, requesting assistance to obtain woodwork benches. The letter was signed by the Principal and the applicant. The principal had indicated to the applicant that there was no budget to buy new woodwork benches. The applicant suggested that other schools be approached to assist in donating the benches. The applicant felt that the principal was just being difficult because there was a budget which could be utilised to purchase new benches.
11) The applicant referred to a letter (P42) dated 21 February 2011 from principal to herself, in which the Principal indicated that the applicant had been allocated to the Senior Advanced Phase. The applicant responded by indicating to the Principal that a resolution had been taken at the meeting with SADTU and the SMT that the applicant would swop with Mr Dubazane. At this point the relationship between the applicant and the Principal was tense.
12) In June 2011 the applicant submitted a letter to Dr Van De Linde (IDSO) requesting him to intervene between the applicant and the Principal because the principal refused to sign the reports. The applicant was told that the reason that the principal refused to sign the reports was because the applicant did not adhere to her allocation that was given to her.
13) The applicant point out to Van De Linde that this action of the Principal resulted in some learners not getting reports. The applicant was unable to fulfil her responsibility due to the reports not being signed. The applicant indicated that the principal had on numerous occasions stated in the SMT meetings that the applicant is responsible for the mess at the school. The applicant indicated to Van De Linde that she viewed the principal’s behaviour as harassment. Van De Linde did not respond to the letter, but forwarded same to the Principal.
14) The principal then wrote a letter to the applicant dated 25 July 2011, requesting the applicant to substantiate her claims in the letter which she had sent to Van De Linde. The applicant did not respond because she felt the letter was addressed to Van De Linde and not the Principal. On 3 August 2011, the principal again demanded a response from the applicant into her allegations. The applicant responded on 28 October 2011 indicating that a resolution had been taken at a meeting between SADTU and the SMT.
15) The applicant referred to minutes of an SMT meeting which convened on 14 February 2012. At that meeting the applicant raised an issue about a learner who was epileptic and who had to travel on foot for 10km to get to school. The applicant requested the transport co-ordinator to address the issue. When it was not addressed, the applicant raised the issue at the SMT meeting. The applicant felt that the learners were being discriminated against, with specific reference to the epileptic learner. On 21 February 2012 the applicant again raised the issue of the learner. The applicant was advised that the issue was not addressed due to a communication breakdown and that it would be addressed.
16) On 10 November 2012 the applicant sent an email to Dino Reddy, who was the newly appointed IDSO. The applicant highlighted her issues of concern and listed the following: Curriculum, Discipline, Communication, Favouritism/Discrimination, Support, and Resistance to Change. The applicant felt that her concerns were not being addressed and that she was being bullied by the Principal. The applicant felt that she did not receive the necessary support.
17) A meeting was held with the IDSO, Dino Reddy, and the SMT on 31 October 2012. The applicant indicated that SGB issues were being brought back to the SMT by the Principal rather than addressing same at SGB level.
18) Another meeting was held with the IDSO on 21 November 2012. It was a follow-up meeting from 31 October 2012. The agenda of the meeting was the issues highlighted by the applicant to the IDSO. The applicant complained about the composition of the classes and that older learners were grouped with younger learners. The school is a school for the severely intellectually disabled (SID). The applicant felt that the way in which her class was constituted was out of spite in relation to the actions of the principal. The applicant expressed the view that the learners where incorrectly clustered. The applicant indicated that she raised the issue in the SMT meetings, but such was not addressed. When the issue was raised the principal indicated to the applicant that the applicant wanted an increase in the skills portion of the curriculum and as a result it was implemented and she should deal with the issue.
19) The applicant referred to the minutes of a special executive meeting held on 13 April 2013. The IDSO and the SGB Executive met. In terms of the minutes, amongst the issues raised was the behaviour of the principal towards SGB members as well as towards the Applicant. It was resolve d at the meeting that the Principal would subject herself to the Employee assistance programme to deal with her anger management as suggested by the IDSO, Dino Reddy. The applicant had asked Reddy what should be done should the principal repeat her behaviour. Reddy advised to remind the principal of the meeting and also requested that the matter be reported to him should such behaviour continue.
20) The applicant indicated that she could not recall any other incidents after the meeting where she was reprimanded by the principal.
21) The applicant referred to a letter which was written to her by the principal dated 12 august 2013. The letter pertained to a meeting held where feedback was given to the parents on the progress and challenges of the SGB. After the meeting the principal asked the applicant why she had raised certain issues. The applicant refused to respond and indicated to the principal that she should have raised her concerns in the meeting. The principal then shouted at the applicant. The principal wanted evidence of the concerns raised by the applicant at the meeting. The principal then sent a letter (P71) to the applicant requesting evidence of the applicant’s submissions and threatened that failure to do so would leave her no option but to escalate the matter. The applicant felt harassed and refused to respond. The applicant alleged that the manner in which the principal shouted at her was intolerable.
22) There was an incident where a learner was found with dagga in his possession. The Deputy Principal requested the applicant to write a letter to the learner’s parents and the matter was resolved. The letter was misfiled and when the applicant took the letter to the principal, the principal was harsh with her and said she met with the parents in the principal’s absence. The applicant told the principal that it seems that the principal would only be happy if the applicant left. The applicant then proceeded to fill in the termination of services form.
23) The applicant also alleged that she was in charge of food purchases for the learners. Whenever the applicant presented a cheque requisition to the principal to purchase meat, the principal would refuse to sign the cheques because she was not happy with the decision to purchase meat.
4.1.2 Cross Examination
1) The applicant is a member of SADTU and held the position of Chairperson of the Site Committee. At a stage the applicant also served as Education Convenor at branch level of SADTU.
2) The applicant confirmed that she was conversant with most policies of the Department of Education and the applicant was familiar with the grievance procedure of the department. The applicant is familiar with the Employment of Educators Act as well as has knowledge of the existence of the PAM document.
3) The applicant testified to the grievance procedure and displayed full knowledge of same as well as the steps involved in invoking such procedure.
4) The applicant indicated that she raised her issues with the SMT as well as the IDSO. The applicant indicated that her correspondence to Van De Linde was copied to the District Director. Put to the applicant that at no time does she ever bring it to the attention of the District Director that her grievance/complaint was not resolved.
5) The applicant indicated that the manner in which she handled her grievance was the best she could do.
6) It was the Principals responsibility to allocate duties at the school in consultation with the staff members concerned. The applicant indicated that the meeting which took place between SADTU and the SMT had decision making powers. The applicant drew this conclusion because the Principal was part of the meeting. If the Principal was not part of the meeting then it would not have decision making powers. It was put to the applicant that the aforementioned meeting did not have powers to take decisions. The applicant confirmed that the Principal did object to the decision. The applicant was of the view that the Principal did not give reasons for her objection.
7) It was put to the applicant that she was obstructive in the SMT meetings and positioned herself more as a unionist then a member of the management team and it was this that created the conflict. The applicant denied such allegation.
8) In relation to the applicants email sent to Dino Reddy on 10 November 2012, the IDSO, and Reddy, did respond to the email and visited the school to discuss the issues.
9) It was put to the applicant that if the Principal had shouted at her on 27 March 2014, why did she not report same to the IDSO or even the District Director. The applicant indicated that previously she had raised issues with Reddy and solutions were temporary.
10) The applicant was referred to the form dealing with her application for a cross transfer. In 2010. It was put to the applicant that both the Principal and the SGB Chairperson supported the recommendation for the applicant to be cross transferred. The applicant confirmed that the documentation supported such assertion. The applicant was unable to recall the name of the person at District level who indicated that the forms in question were never received. The applicant could not confirm with certainty that the Principal had blocked her transfer. The applicant confirmed that she was told at district level that the policy had changed and that HOD’s were not allowed to cross transfer.
11) The applicant confirmed that she was very angry on 27 March 2014 when she tendered her resignation. The applicant indicated that it was expected of her to serve the required notice period. The applicant approached her attorney for assistance to try and resolve her issues. The applicant hoped that her attorney in their discussions with the Department could secure her an alternative post.
1) The applicant alleged that she called her immediate senior and had a meeting with the Principal, but things did not change. The applicant then engaged SADTU and the meeting between SADTU and the SMT took place.
2) The applicant indicated that she wrote to Van De Linde because she wanted an intervention after the Principal refused to sign her learner’s reports. Van De Linde did not respond to the letter, the Principal did. The Principal constantly raised the issue about the allocation of 2011. At no time did the Principal indicate that she did not recognise the resolution taken at the meeting between SADTU and the SMT.
3) Educators at the school signed a petition to remove the applicant from the SGB. The applicant then recused herself from the SGB. The executive of the SGB also recused themselves.
4) The applicant was of the view that the IDSO would be the decision maker at regional level. The applicant did address her grievance with the IDSO, Reddy, and no response was received.
4.1.4 Witness 2: Petros Fito Lebesa testified as follows
1) The witness is employed in the private sector and served as an SGB member. The witness was currently serving a second term as an SGB member.
2) The witness recused himself during his first term on the SGB, due to allegations. The witness indicated that the Principal influenced parents to say that the witness and others were involved in mismanagement of school funds.
3) Funds were actually stolen from the school account. The Principal called a meeting and informed parents that money was stolen and indicated that the school did not have any funds to operate. The witness felt that this was untrue.
4) The witness was referred to the minutes of the Special Executive Meeting. The witness indicated that the Principal had called him while he was at work and was rude and shouted at him. The witness works in an open plan office. The witness’s colleagues could hear the Principal shouting over the phone. The witness addressed this concern at the meeting. The applicant also indicated that she was shouted at and accused of stealing a radio.
5) The witness expressed the opinion that the relationship between the Principal and the applicant was totally unprofessional.
6) The witness asked the applicant “how she could work with the Principal. The applicant indicated that she loved her job and she wanted to contribute her skill for the benefit of the learners.
7) At the meeting Reddy (IDSO) indicated that the Principal had to attend “anger management” counselling. The situation with the Principal did not change after the meeting. At the meeting the Principal apologised to the witness for her behaviour. Reddy indicated to the meeting that disciplinary action would be taken if the Principal does not change.
8) The witness was referred to an email sent by Mr Twala to the District Director, Boy Ngobeni, and cc’d to Dino Reddy and Masondo Nkosi. The email was sent on 15 April 2014 after it was felt that their issues were not addressed. The witness expressed the opinion that the Principal harassed the applicant because she shouted at the applicant and displayed negative body language in the presence of the SGB members. Sometime the applicant would laugh and at times she would also raise her voice towards the Principal. The applicant indicated to the SGB that she was used to this kind of behaviour from the Principal. On 28 may 2014 the witness wrote an email to the District Director about the issues and the outcome of the issues brought to the Directors attention.
9) The witness and Mr Twala also wrote to the applicant, pleading with her to reconsider her resignation.
4.1.5 Cross Examination
1) The witness indicated that the email which he wrote to the District Director dated 28 May 2014 (P79), was written as a parent within the school and not as an SGB member. The mail was written after the witness had recused himself from the SGB. The witness indicated that he was not bitter about the events that had transpired.
2) It was put to the witness that the Principal would testify that she in no way influenced the parents against the witness and other SGB members, including the applicant.
3) The witness indicated that he was not a curriculum specialist but believed as a parent he had the right to raise issues regarding the curriculum.
4) Put to the witness that the Principal would testify that she did not shout at the witness and accuse him of stealing her radio and that she later apologised because she did not know that the witness sat in an open plan when she had a discussion with him. The witness indicated that he discussed the issue with Twala and the applicant.
5) The witness indicated that he had no issue with the Principal, but questioned her leadership style.
6) The witness felt that it was fair to apportion blame to the Principal for the shortcoming in the curriculum because she is an agent/representative of the Department.
7) The witness indicated that the Reddy (IDSO) did indicate at the meeting that if the Principals behaviour persists, he would take disciplinary action against her. The witness indicated that the minutes do not reflect the actual discussion. The witness confirmed that the minutes as it was presented was not ratified.
8) The witness indicated that the applicant told him that she was resigning because of the curriculum issues and the shouting by the Principal. Whether this was true, the witness could not attest to.
1) The witness indicated that to his recollection the minutes of the Special Executive Meeting held on 13 April 2013 was a true reflection of the meeting.
4.1.7 Witness 3: Mangaliso Brutus Mabuya Testified as follows:
1) The witness has been unemployed since June 2012. Prior to being unemployed the witness was an educator based at Simeleni School since 2009 to 2012.
2) During this period the witness’s immediate superior was the applicant and the Principal Ms Elephant. The applicant was the witness’s HOD.
3) The applicant was a supportive manager. The witness had an “ok” relationship with the Principal. In 2011 and 2012 the relationship between the witness and the Principal became strained. The witness was the site secretary of SADTU.
4) There were grievances at school pertaining to the applicant. The witness wrote a letter to the Principal indicating that the Branch of SADTU was to be invited to the school to discuss the issues pertaining to the applicant.
5) The Principal indicated that she would also seek representation from her union.
6) The witness expressed the opinion that the relationship between the applicant and the principal was strained. The witness drew this conclusion due to the Principal ignoring the applicant on a number of occasions at staff meetings.
7) There was an incident when SADTU members gathered for a meeting. Permission was sought for the meeting. The Principal barged into the class where the meeting was being held and shouted at the applicant. A heated argument ensued outside the classroom with the Principal shouting. The meeting adjourned. The witness could not recall when the meeting occurred.
8) The woodwork department did not get the monetary allocation timeously to purchase material. Other departments received their allocations prior. The applicant told the witness that she made her budgetary submission to the Principal and she was awaiting a response.
9) As a result learners had to be pushed to complete the projects.
10) The witness left the Department to pursue other interests. This was the main reason for the witness leaving. The witness then expressed the view that the Principal humiliated him in front of other educators by shouting at him. The witness became depressed and was not happy at the school and decided to leave.
11) The witness believed that he was singled out because he was a SADTU member. The applicant was unhappy when the witness left and indicated that it was going to be hard for her.
12) The witness was the author of the minutes between SADTU and the SMT. The meeting dealt with the dissatisfaction with the applicant’s allocation.
13) The applicant was given a senior allocation. The applicant did not experience in dealing with such learners. The applicant was of the view that the woodwork department was being dismantled. The principal was firm in her decision. Some HOD’s backed the principal and others backed the applicant.
14) A resolution was taken at the meeting that the applicant and Dubazana would swop classes. The Principal indicated that she was not happy with such a resolution and felt that her authority was being undermined and eroded.
15) After the meeting, the witness was unable to describe the relationship between the applicant and the principal.
4.1.8 Cross Examination
1) In the meeting between SADTU and the SMT, the witness participated as the site secretary for SADTU. SADTU members dominated the meeting.
2) The witness confirmed that he had 22years experience in teaching and that it was the Principals prerogative to implement the curriculum at the school. The witness was referred to Sec 16 A (2)(1) of the South African Schools Act. The witness confirmed that the meeting between SADTU and the SMT did not have the requisite authority to make decisions concerning the school curriculum. It was put to the witness that the resolution was not binding.
3) The witness confirmed that the Principal was not happy with the resolution of the meeting between SADTU and the SMT because it overrode her authority as Principal.
4) The meeting with SADTU members and the site committee occurred during break. It was put to the witness that the meeting in question extended beyond the duration of the break and learners were left unattended. The Principal then intervened to address this issue with the applicant as the site chairperson.
5) The witness confirmed that his resignation was not linked to the Principals attitude/behaviour towards him, but because he wanted to pursue an alternative career.
6) It was put to the witness that SADTU members constituted the majority of educators at the school and there was no reason to single out the witness.
1) The witness does not have a legal background. The witness is not a specialist on the SA Schools Act. The witness indicated that he did not say in his evidence in chief that he was harassed by the Principal. The witness was of the view that he was singled out by the Principal.
4.1.10 Witness 4: Solomon Twala testified as follows:
1) The witness is a self-employed legal practitioner.
2) The witness is familiar with the applicant as they served together on the SGB. The witness served on the SGB from 201 for a period of 6 months. The witness was the Chairperson of the SGB.
3) At the first meeting of the SGB the witness observed an unpleasant situation between the applicant and the principal which the witness perceived as disrespect and harassment.
4) In 2014 the witness went to school in March, a day before schools closed, in order to obtain his nieces report. The witness requested to see the Principal and was advised that the principal was in the office. On entering the office the witness found the Principal seated at the table and the witness had a seat. The applicant arrived at the principal’s office and the principal shifted her focus from the witness to the applicant. The principal and the applicant spoke in Sotho. The witness indicated that he did not understand Sotho. They were discussing the document in the applicant’s possession. The witness indicated that the discussion became heated and this he established from the Principals facial expression. After a few moments the witness could see that the applicant was getting agitated. The applicant then said in Zulu that she had enough and that she was leaving the school.
5) The witness was of the view that the principal should have addressed the applicant in his absence.
6) The witness was shocked by the Principals tone of voice. The principal slammed the papers that were in her hand, onto the table.
7) The witness expressed the opinion that the principal behaved in an unprofessional manner in every SGB meeting. At times the witness would adjourn the meeting to allow the Principal an opportunity to compose herself.
8) The applicant was educator representative on the SGB and she would report on the challenges at the school. Before the applicant could finish making her submission, the principal would interrupt the submission in a disruptive manner.
9) The witness wrote an email to the District Director raising the issue that they were to lose a hardworking educator (applicant) because she was being treated like “trash”.
10) The witness indicated that because he complained to the District Director, he was referred to a bitter parent.
11) The witness was referred to the minuets of the Special Executive meeting and confirmed that the issue of the principal’s behaviour towards SGB members was discussed and that they were not happy with the treatment received from the principal.
12) The witness pleaded with the applicant to remain at the school even though she was harassed because they thought that the HOD would intervene to deal with issues of alleged harassment.
13) The witness also wrote to the Deputy Director General. The witness was of the view that the applicant was victimised because she challenged the curriculum at the school. The applicant was always harassed by the Principal.
4.1.11 Cross Examination
1) The witness indicated that he had a good relationship with the Principal. It was put to the witness that his relationship with the Principal was strained because the witness took on projects which were not sanctioned by the SGB. The witness disputed this and indicated that the projects were sanctioned by the SGB.
2) Put to the witness that the Principal refused to sign off cheques that were not budgeted for and this strained the relationship with the witness. The witness disagreed.
3) The witness indicated that at the SGB meetings there was an item to discuss curriculum and the Principal would present same.
4) The witness confirmed that the email which he had written to the District Director was done so after the applicant had already resigned.
5) The witness indicated that he recalled the meeting with the IDSO, Dino Reddy. The witness recalled that Reddy requested him to put his concerns in writing, which he did. The witness could not recall whether the alleged harassment by the Principal was raised as part of the issues.
6) It was put to the witness that the minutes of the meeting indicate that the Principal be subjected to anger management as part of the Employee Assistance Programme and that Reddy had indicated that should the Principals behaviour persist, such must be reported. It was put to the witness that the Principal was subjected to an anger management programme and also sent to another school to be mentored.
7) The witness confirmed that Lebesa and himself did not know when the applicant had resigned and when she had stopped being an educator at the school.
4.2 Respondent’s Evidence
4.2.1 Witness1 : Reuben Ralephata testified as follows:
1) The witness is employed in the Public Ordinary Schools Directorate, which amongst others deals with school governance.
2) The witness was invited to investigate the functionality of the SGB at Zimeleni School.
3) The SGB of 2014/2015 made a submission requesting investigation into issues of governance mismanagement. A fact finding exercise was conducted with the SGB and the Principal. The Principal had certain allegations levelled against her by SGB members.
4) The witness interacted with the applicant as the educator representative, MrTwala as the SGB Chairperson and Mr Lebesa as treasurer of the SGB. The witness investigation found that Twala and Lebesa were legitimate biological parents, but guardians to children at the school. As corrective action it was recommended that Twala and Lebesa be removed from the SGB.
4.2.2 Cross Examination
1) The applicant was not at all the subject of the witness’s investigation.
4.2.3 Witness 2: Dineshwara V Reddy testified as follows
1) The witness is employed as the IDSO (Cluster Manager). The job entails providing support to institutions and the Principals. The witness would also interact with the SGB and learners.
2) In 2012 the witness was the IDSO at the applicant’s school. The applicant made the witness aware that there was a relationship problem between herself and the Principal. The witness requested that the applicant place the complaint in writing and also advised the applicant to follow protocol and address same with the Deputy Principal. No written communication was received from the applicant.
3) Twala also indicated that there was an issue between himself and the Principal.
4) The curriculum at the school is the responsibility of the Department of Basic Education. The Principals are to ensure the implementation of such curriculum. The mediation of a curriculum issue lies with the IDSO, who would then escalate same to the Curriculum Unit at the Department of Education.
5) There was an issue with the curriculum. The SGB wanted a skills based curriculum. Such query was referred to the GDE Head Office to the Director Dr Hester Koster. Emma Mangope was appointed to deal with the issue. The witness was not an expert on the curriculum and therefore he referred the query to the appropriate unit.
6) Allocation and deployment of staff per subject is the responsibility of the Principal. The union has no say in the intervention of the curriculum at school, neither can the union dictate as to the manner in which staff should be deployed.
7) There was no reason for the union to be included in a meeting dealing with the curriculum. Such is the prerogative of the Principal in consultation with the SMT.
8) The witness was called to a Special Executive meeting to deal with a crisis. There was an issue of learners not being picked up for school by the school transport. It was established that the school vehicles were at Alberton Toyota and that the SGB refused to sign cheques to pay the account to have the vehicles released. The witness called a meeting to try and resolve the issue. The meeting convened on 13 April 2013. The issue of the Principals approach towards SGB members as well as the applicant was discussed. It was recommended that the Principal attend anger management via EAP. The witness also indicated to the applicant that should the disagreement between the applicant and the Principal continue, the applicant should submit a complaint in writing to the witness. Prior to the applicant’s resignation, at no time did the witness receive any written complaint from the applicant.
9) On an occasion the applicant came unannounced to the witness office and indicated that she was scared to report for duty because parents were waiting for her. The witness requested the applicant to report for duty at another school in the interim. The witness contacted the Principal to advise of the situation. The Principal indicated that it was not accurate and that the parents had come to school on another issue. When the witness investigated, he found out that over the weekend the SGB had convened a meeting where parents had then passed a vote of no confidence in the SGB. The staff sent the witness a letter indicating that they had recalled the applicant as the educator representative on the SGB because they had no confidence in her. The witness indicated that he could not interfere with this democratic decision. The staff felt that the applicant had joined the ranks of Twala and Lebesa against the interest of the school.
10) The SGB had no powers to alter the curriculum at school. Such power rested with the Curriculum Unit at the Department of Education. The Curriculum Unit was engaged to relook at the curriculum. The SGB had decided on a skills based curriculum which was against policy as the CAPS curriculum was implemented at the time.
11) The applicant was advised to exhaust the resolution of her issues internally at the school and if such failed that she should escalate same to the witness. The witness in turn if unable to resolve the issue would escalate the issue to the District Director and even to the MEC. At no time did the applicant make use of the grievance procedure.
12) The applicant could have appealed to withdraw her resignation. The applicant did not do so.
4.2.4 Cross Examination
1) The witness confirmed that he was not an expert on the curriculum at LSEN schools.
2) The witness was not the IDSO at the time when the meeting took place between SADTU and the SMT.
3) The witness was not aware of any incident were the Principal refused to sign the applicant’s reports.
4) The witness indicated that he did react to the allegation by SGB members concerning the behaviour of the Principal towards the SGB and the Applicant.
5) The witness indicated that he was not aware of the withholding of any budget for the woodwork centre.
6) The witness disagreed that the SGB only wanted strengthen the vocational aspect of the curriculum. The SGB wanted to change the entire focus of the curriculum.
7) It was put to the witness that the applicant di n register her concerns in a letter to Dr Van De Linde. The witness indicated that he was not aware of the incidents cited in the letter as the witness was not the IDSO at that time.
8) The witness indicated that he was never given an opportunity to deal with the applicant’s issues, because the applicant failed to submit a written complaint. The witness agreed that a Special executive Meeting held on 13 April 2013, he did address the Principals behaviour towards the SGB and the Applicant. The applicant merely said that there were issues and challenges in her relationship with the Principal. The witness requested the applicant to put a complaint in writing. It was put to the witness that the Department has an informal and formal grievance procedure as articulated in the PAM document.
1) At the Special Executive Meeting which took place on 13 April 2013, the witness requested the applicant to report the Principals behaviour to the witness and also remind the Principal of the discussion that took place at the meeting.
4.2.6 Witness 3: Madimakatso Alina Elephant testified as follows
1) The witness denied making the applicants work life unbearable.
2) On 2 December 2010 the union was invited to a meeting to discuss the issue of allocations and the curriculum. The witness objected to the proposal that the applicant swop classes with Dubezana because it would create a situation, where in future educators would want to do the same.
3) The witness denied shouting at the applicant during a SADTU site meeting. The witness indicated that she called the applicant aside to address the concern that the break had ended and lessons had to resume. The witness denied that she yelled at the applicant.
4) At an SGB meeting the witness requested to be excused and leave early. The witness indicated to the meeting that she would leave her office open. The following day the witness found that her radio was missing. The witness enquired from the administration staff if they had seen her radio. When the witness approached the applicant and asked whether the applicant had seen her radio, the applicant laughed at her. The witness denied that she accused the applicant of taking her radio. She merely enquired whether the applicant had seen her radio.
5) The Applicant and Mr Mabuya indicated that they saw woodwork benches in the Westrand district. An approach was made to Katlehong Technical School to purchase the woodwork benches. Accordingly the woodwork benches were purchased.
6) On the 21 February 2011 the witness did address correspondence to the applicant because the applicant had failed to adhere to her allocation. The applicant responded to the witness and indicated that the witness should refer to the minutes of the meeting between SADTU and the SMT where a resolution was taken that the applicant would swop with Dubazana. The witness indicated that she objected to such decision as the union did not have the authority to take such decisions. The witness did not abide by the resolution of said meeting due to the union lacking authority to make such decisions.
7) The letter written by the applicant to Dr Van De Linde was brought to the witness attention by Van De Linde. Van De Linde requested the witness to write to the applicant and request a meeting to discuss the issues. The witness addressed correspondence to the applicant, inviting her to explain the issues which she had raised in her correspondence to Van De Linde. The applicant did not respond. The witness send follow correspondence to the applicant on 3 August 2011, reminding the applicant to respond. The applicant still failed to do so.
8) After the meeting of 13 April 2013, the relationship between the witness and the applicant was professional. If for any reason the witness harassed the applicant, the applicant had the avenue to address same with the IDSO (Reddy). The witness has no knowledge of the applicant filing a complaint against her.
9) The witness indicated that after the meeting of the 13 April 2013, she attended an EAP programme as suggested by the IDSO.
10) The witness alleged that she was not aware of the alleged discrimination and harassment as alluded to by the applicant. The applicant was invited to expound on the issues, but failed to do so.
11) There was never a meeting between the applicant, witness and SADTU to discuss the issues raised by the applicant.
12) The witness denied ever making it difficult for the applicant to perform her duties.
4.2.7 Cross Examination
1) The witness agreed that she objected to the swop between the applicant and Dubazana. The SMT did not agree, they were silent on the issue. Only Machava (One of the HOD’s) supported the proposal. Machava was a member of SADTU.
2) The witness reiterated that she did not shout at the applicant when she approached her at the site meeting. She called the applicant out of the class and addressed the applicant to indicate that the break was over and that lessons needed to resume.
3) The witness disagreed that she shouted at the applicant when the applicant was handing in her HR21 form to resign or that she shouted at the witness earlier at an SMT meeting.
4) The witness denied that she accused the applicant and Lebesa of stealing her radio. The witness apologised to Lebesa because he had indicated that he was seated in an open plan when the witness had called him.
5) The witness indicated that in her opinion she did not believe that she got angry, but she attended the anger management programme because she was instructed to do so. The witness also attended the School of Achievement.
6) The witness indicated that her correspondence to the applicant (P47) was an invitation for the applicant to respond to the issues and discuss same. It was put to the witness that the letter does not invite the applicant to a meeting, but request the applicant to substantiate and provide proof of the issues which the applicant raised.
7) The witness indicated that she did indicate that she would not sign the reports, due to the applicant undermining her authority by implementing the swop with Dubazana.
8) The witness denied ever withholding the budget for the woodwork department. The applicant was given funds to purchase what she needed.
9) The applicant was performing her duties to an acceptable level
10) The applicant wanted to change the curriculum, which was not her prerogative to do so.
No questions asked in re-examination
5. Analysis of evidence and argument :
1) The Applicant brought a dispute in terms of section 186 (1) (e) of the LRA.The Applicant in this matter alleged that she was constructively dismissed and that she resigned because the Principal, Ms Elephant, had made her work life intolerable by victimising and harassing her.
2) The applicant made reference to various incidents in an attempt to substantiate her claim. The applicant alleged that the Principal prevented her from making changes to the curriculum and opposed the allocation which the applicant had requested., did not timeously give her a budget for the woodwork department, treated her with disrespect by shouting at her and on an occasion refused to sign her reports. These incidents took place over a period from 2010 to 2014.
3) On the issue of the curriculum and the allocated teaching component that was allocated to the applicant, it was common cause that in December 2010 there was a meeting held between SADTU and the SMT, where the applicant requested to swop teaching allocation with Dubazana. It is common cause that the Principal opposed such request. The Principal in this instance had every authority to determine the allocation to educators. The involvement of the union, SADTU, in taking a resolution of this kind was not procedural, as the union did not have the authority to make management decisions within the school. The applicant, however, still went ahead and implemented swop with Dubazana and in so doing undermined the authority of the Principal, Ms Elephant. The applicant further on occasion reminded the Principal of the so called resolution taken at the meeting with SADTU in December 2010, when the Principal queried the re-allocation in correspondence to the applicant dated 21 February 2011. The Principal in this instance had every right to question the re-allocation which occurred without the requisite authority. The Principal did not deny that she on one occasion refused to sign the applicant’s reports due to the issue of the re-allocation. This in itself does not constitute action which would make the applicant’s work life intolerable. It is not disputed that the applicant did submit correspondence to the IDSO, Dr Van De Linde in July 2011 requesting an intervention between herself and the Principal. What specifically gave rise to such correspondence was the incident of the Principal refusing to sign the learners reports. This seemed to have been directly linked to the Principals discontent with the applicant swopping the allocation with Dubazana. The applicant at that point felt that the Principal was harassing her. Van De Linde had then submitted to correspondence to the Principal and requested the Principal to call a meeting with the applicant to discuss the issues. The Principal instead submitted correspondence to the applicant requesting the applicant to substantiate her claims within 48 hours. The applicant failed to respond and the Principal again submitted correspondence requesting the applicant to respond. Thus it would not be correct to say that there was no tension between the applicant and the Principal, but whether such disagreement made the working relationship intolerable, is questionable.
4) On the issue of the woodwork benches, the evidence suggests that second hand desks were purchased from another school. I do not believe that the applicant’s ability to teach the subject was hampered in any way or that the Principal was being obstructionist in this regard.
5) The applicant indicated that the Principal was rude towards her and shouted at her on many occasions. Twala and Lebesa also claimed that there were occasions when they were present and observed the Principal’s behaviour.
6) When the new IDSO, Dino Reddy, assumed duty the issue between the applicant and the Principal was brought to his attention. A Special Executive Meeting was called where Reddy met with the Principal, the Applicant and members of the SGB. The Principals behaviour towards the SGB and the Applicant was highlighted. At that meeting it was resolved that the Principal would be subjected to Anger Management via EAP and also be mentored. The Applicant at that meeting was expressly advised by the Reddy that should the Principals behaviour continue to manifest in anger, than the applicant should remind her of this meeting and the applicant should also bring it to the attention of Reddy. Reddy further had indicated that if the applicant had a complaint she should put same in writing, such that the issues could be dealt with and escalated to the proper authority. Reddy had also cautioned at the meeting that the Principal could be subjected to disciplinary action should it be brought to the Departments attention that she was misconducting herself in her behaviour.
7) The applicant was thus fully aware that she could escalate her complaint in writing to the IDSO. Reddy testified that during the period 13 April 2013 to the date on which the applicant resigned, at no time did the applicant ever raise any grievance with him. The Applicant was at a point a branch executive member of SADTU and also served as the chairperson of the site committee. Thus it would be reasonable to assume that the applicant should be fully conversant of the respondent’s grievance procedure and knew how to exercise her right to file a grievance. At no time after the meeting of the 13 April 2013 does the applicant ever raise any concerns or grievance with the respondent via the IDSO, Dino Reddy or even directly with the head of the District.
8) In Albany Bakeries Ltd v Van Wyk & Others the court held it was critical in a constructive dismissal matter, whether the employer had made continued employment intolerable for the employee. The court pointed out that the employer had a grievance procedure, which the employee should have exhausted before resigning. The court held that resigning was not a last resort and as such the employee had failed to prove constructive dismissal. In this matter, the applicant was fully aware of the grievance procedure, but failed to invoke same.
9) This brings us to another critical issue. The Principal, herself, is an employee of the Department of Education and does not constitute the Respondent. Whilst it is accepted that the Principal could act as the agent of the Respondent, one has to question at which point does the Respondent accept vicarious liability for any actions of the Principal. Such liability would be placed on the Department of Education, had the Applicant, as instructed by Reddy, brought it to the Respondent’s attention that the Principal continued to allegedly harass or victimise her. Furthermore there would have to be some truth and merit in such assertions. There is no evidence provided that the Principal in the period after the meeting of 13 April 2013 continued to allegedly harass or victimise the applicant, neither were any such incidents brought to the Departments attention thereafter. If there were instances where such did occur, the Respondent certainly didn’t have a fair opportunity to deal with same, because such was never brought to the Respondent’s attention thereafter. The Applicant was well aware that Reddy had indicated that if for any reason the Principal’s behaviour became unacceptable, the Respondent would take the necessary disciplinary action. No complaint or grievance was forthcoming from the applicant in this regard after the meeting of 13 April 2013. The Applicant’s claim of constructive dismissal must therefore fail.
1) The Applicant has failed to establish the existence of a constructive dismissal.
2) The matter is dismissed
3) There is no order as to costs.
Signed and dated on this the 21 day of November 2016