Case Number: PSES 432 17/18KZN
Applicant: Natu obo Shabane N.D. and
Respondent: DEPARTMENT OF EDUCATION – KZN
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: the District Office, Department of Education Port Shepstone.
Award Date: 29 May 2018
Arbitrator: Tyron Barker
Case Number: PSES 432-17-18 KZN
Commissioner: Tyron Baker
Date of Award: 29 MAY 2018
In the ARBITRATION between
NATU obo Shabane N.D and V.T.Shabane
(Union / Applicant)
Department of Education – KwaZulu Natal
Union / Applicant’s representative : Mr. S G E. Mdunge
Union / Applicant’s telephone : 035 870 1775
Telefax : 086 245 5963
Email : firstname.lastname@example.org
Employer’s representative : In Default
Respondent’s address :Telefax: 086 400 3573
Email : email@example.com
Cell : 083 350 0721
DETAILS OF HEARING
1. An alleged unfair conduct – demotion dispute was referred to the Education Labour Relation Council in terms of Section 186 (2)(a) of the Labour Relations Act 66 of 1995 as amended. The arbitration was held on 22 May 2018 at the District Office, Department of Education Port Shepstone. The Applicants, Mrs N.D.Shabane and Mr V.T.Shabane were represented by Mr S.G.E Mdunge from the National Allied Teachers Union (NATU). The Respondent, Department of Education: KwaZulu Natal was in default.
2. There was proof that a notice of set down was sent to the Respondent via email on 24 April 2018. I satisfied myself that there had to been proper service of the notice of hearing. I therefore proceeded with the arbitration in absentia. The proceedings were recorded digitally and manually. No interpreter was required.
ISSUES TO BE DECIDED
3. The issue to be decided was whether the demotion of both the Applicants’ were both substantively and procedurally unfair, and if so, what relief are they entitled to.
BACKGROUND TO THE DISPUTE
4. Mr Mdunge presented the following evidence on behalf of both the Applicants. He handed in two bundles of documents marked as VT1 and VT2. VT1 was the bundle referring to the Second Applicant, Mr V.T.Shabane and VT2 was that of the First Applicant Mrs N.D.Shabane
4.1. Mr Mdunge stated that Mr V.T.Shabane (Second Applicant) was employed by the Respondent as an Educator at Kwanguza Primary School (Port Shepstone KZN). He was employed on 1 January 1996. He is still currently employed. He was promoted to a Head of Department at the same school in 1999. He currently occupies the same position. The Second Applicant teaches Grade 7. The following subjects are taught by the Second Applicant: IsiZulu, English and Technology.
4.2. The Second Applicant earned a salary of R29 000-00 per month, prior to his demotion. The Second Applicant was charged for serious acts of misconduct during the period of 2008-2011 in that the Second Applicant promoted the interest of Company X and V Trading Enterprise CC to procure goods for the school where the Second Applicant was employed. He was found guilty at the disciplinary hearing and was dismissed. An internal appeal was lodged by the Second Applicant and the sanction was overturned to one of Demotion on the 2017-02-21 (page 9 of VT1). The Second Applicant was demoted to a Post level 1 Educator and currently earns a salary of R28 000.00. The argument presented is that the demotion of the Second Applicant was unfair, as the Second Applicant received a Final Written Warning for the same offence on the 2013-11-16 (page 1 of VT1) together with other the Educators who committed the same acts of misconduct (page11 to 19 of VT1). The Second Applicant seeks the reversal of the Demotion.
4.3. Mr Mdunge stated that a blanket decision was taken by the Education Department during 2012 to issue final written warning letters to all Educators across the province who had committed acts of misconduct of a similar nature.
4.4. Mr Mdunge stated that the Disciplinary Code of Conduct governing Educator’s, made provisions for the following sanctions in cases of misconduct committed by Educators: Written warnings up to Final Written Warnings, Suspension without pay and Demotion as an alternative to dismissal and Dismissal. He concluded the Second Applicant’s version of events.
4.5. Mr Mdunge presented the following in respect of the First Applicant. All the facts that were presented with regards to the Second Applicant are the same. He however added the following:
4.5.1 The First Applicant was employed by the Respondent as an Educator on 1 February 1989. She is currently the Principal of Kwanguza Primary School. She also teaches Grade 7 in the following subjects: Natural Science, Economics and Management Science. She was demoted to Post level two on 1February 2017.Her salary prior to the demotion was R37000.00. Her current salary after the demotion is R33000.00. She also seeks that the demotion be reversed.
ANALAYSIS AND ARGUMENT
5. The evidence of both the First and Second Applicant was not contested as the Respondent was in default. I have no reason to dismiss the Applicants’ version.
6. However, based on the Applicants’ own version I find that on a balance of probability, the demotion of both Applicants was both procedurally and substantively fair. This fact is substantiated by the fact that both Applicants were subjected to a formal disciplinary enquiry. They were both found guilty. The sanction of dismissal was imposed upon both of them. It was the Applicants’ own version that the Disciplinary Code of Conduct made provisions for the following sanctions: Written Warnings up to a Final Written Warning, Suspension without pay, Demotion as an alternative to Dismissal and Dismissal.
7. Both Applicants lodged internal appeals against their dismissals. Both Applicants did not challenge the process of the internal disciplinary enquiry. They challenged the harshness of the sanction imposed on them. In my view and upon perusal of the Outcome of Appeals of both Applicants VT1 (page 9) and VT2 (page 1), the Department of Education made a fair and correct decision, by reversing the decision of dismissal and replacing it with one of the Demotion. The reasons outlined in both Applicants Outcome of Appeal are also found to be fair. The decision advanced by the Department of Education is that the original sanction of dismissal was too severe.
8. Section 186 (2) (a) by implication permits an employer to demote an employee provided that this is done fairly. In my view the Demotion of both Applicants was done fairly and secondly this sanction supported the outcry of the labour market to support employment rather than unemployment. Both Applicants were demoted as a disciplinary penalty.
9. Turning to the question of inconsistency and a double sanction imposed on the Second Applicant, I find that the documentary evidence presented to me of that of other Educators who the Applicants claim were not demoted, is true. The Department of Education took a blanket decision to issue various Educators with Final Written Warnings and Suspension without pay, for offences committed by those Educators for offences, which were not of similar nature of the First and Second Applicant. Those Educators were not subjected to formal disciplinary hearings. The Applicants in this matter faced formal disciplinary hearings. Therefore their argument must fail.
10. Consistency does not necessarily mean that the same sanction must be applied in every instance of the same act of misconduct- it means that the same procedure must be applied in addressing similar instances of the same act of misconduct. This is because usually, the sanction to be applied is decided according to the circumstances of the matter, and the personal circumstances of the employee, including matters such as service record and previous disciplinary records, plus various other mitigating, aggravating and extenuating circumstances. Thus, the act of misconduct can be the same, the evidence may even be the same or similar in two separate incidents of the same act of misconduct, but the circumstances can differ vastly.
11. In view of the foregoing testimony I make the following award.
12. The demotion of both Applicants, Mrs N.D.Shabane and Mr V.T.Shabane was both procedurally and substantively fair. The Respondent, Department of Education: KwaZulu Natal did not perpetrate an unfair labour practice when they demoted both Applicants.