Case Number: PSES 611-18/19 KZN
Applicant: Mbangata MT & 5 Others
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: ELRC venue in Kokstad, Kwazulu Natal.
Award Date: 21 July 2019
Arbitrator: R. Shanker
Case No PSES 611-18/19 KZN
In the matter between
Mbangata MT & 5 Others Applicant
Department of Education KZN Respondent
ARBITRATOR: R. Shanker
DELIVERED: 21 July 2019
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for an arbitration hearing on 26 February 2019, 20 May 2019 and 21 May 2019, 02 July 2019 and 03 July 2019 at the ELRC venue in Kokstad, Kwazulu Natal.
2. The applicants were represented M.M. Mbewana, an official of NAPTOSA. The respondent, Department of Education KZN, was represented by M.S.D Mdunge.
3. The parties agreed that the matter to be arbitrated at this hearing concerns an alleged unfair fair labour practice dispute in terms of section 186(2)(b) of the Labour Relations Act, 1995 (“Act”).
4. The parties were allowed seven (7) days to file written closing arguments.
ISSUES TO BE DECIDED
5. In this matter, the applicants alleged that their redeployment to another school by the respondent was in contravention of the HRM Circular 57 of 2017 (“HRM 57”) and used as a punitive measure.
6. The parties agreed that the dispute is to be dealt with in terms of section 186(2)(b) – Unfair Labour Practice – any unfair act or omission that arises between an employer and an employee involving unfair disciplinary action short of dismissal.
7. The issues to be determined is whether the redeployment of the applicants constituted unfair disciplinary action against the applicants and, if so, the relief to be awarded.
BACKGROUND TO DISPUTE
8. HRM 57 is a procedure manual that deals with staffing of schools. Paragraph 4.2 of the HRM 57, Declaration of Educators Additional to the Establishment, reads as follows:
4.2.1 “Where schools have experienced a decrease in the post allocation or a change in curriculum needs that results in educator being identified as addition to the educator post establishment, principals are required to declare these educators additional to the educator post establishment in consultation with the educator staff of the institution at a formal staff meeting utilising Annexure A.”
4.2.2 Educators declared additional to the establishment MUST complete a profile form, Annexure C….”
9. The applicants in this matter are as follow:
9.1. Mavis Thoko Mbangata
9.2. Siphokazi Mankanku
9.3. Zethu Cynthia Maboee
9.4. Ndumiso Abednigo Sodlaka
9.5. Nomanurse Sotshangane
9.6. Makepeace Sisa Matta
10. The applicants were all employed as educators by the Department of Education and deployed at the Vulekani Special School and Skills Training Centre (“Vulekani” or “school”). The school enrols learners with special needs mostly severely intellectually disabled learners and learners with autisms. These learners cannot be accommodated at mainstream schools because they need special attention due to challenges that they have.
11. In July 2018, the applicants were redeployed from Vulekani School to various other schools.
12. The applicants’ version is that the school principal, Mncedisi Dlamini (“Dlamini”), and the circuit manager, Dlamini Nhlanhla Zungu (“Zungu”), had a vendetta against them and that their redeployment was not in terms of the HRM 57 but was a form of disciplinary or punitive action against them. Zungu was at one stage the chairperson of the union SADTU but is now the circuit manager.
13. The respondent’s version is that the redeployment of the applicants was in terms of HRM 57 following a change in the curriculum needs of the school. The school needed educators that have special needs qualifications to support the learners with special needs. The applicants were identified as additional to requirements at the school as they did not have the necessary qualifications.
14. The applicants led the evidence of five witnesses in support of their version and submitted a bundle of documents marked Bundle “A”. The respondent called two witnesses and submitted a bundle of documents marked Bundle “B”.
15. As relief, the applicants requested that they be returned to Vulekani School.
SURVEY OF EVIDENCE AND ARGUMENT
16. The evidence and arguments hereunder are not verbatim accounts of the proceedings but relevant facts agreed upon by the parties and evidence on issues in dispute deemed necessary for the analysis that follows. All evidence and arguments were considered prior to drafting this award.
17. The applicants testified that Dlamini and Zungu were friends and they both had a vendetta against them for the following reasons:
17.1. The relationship between staff/educators and Dlamini had deteriorated since 2015. Dlamini did not treat them well and kept insulting them. In 2016, there was a strike and they had chased Dlamini out of the school. Dlamini returned to the school at the beginning of 2017. Immediately thereafter, the learners said that they don’t want him back at the school as he was abusing learners - it is alleged that Dlamini had molested one of girl learners. The educators (and staff) stood by the learners.
17.2. At that stage Zungu was the chairperson of SADTU and they believed that he came to the school to defend the principal. The staff, including educators, wanted to meet as a group. Zungu wanted to meet with SADTU members only. The situation got tense as staff felt that he was siding with Dlamini. Zungu got angry and left.
17.3. In August 2017, the applicants attended a disciplinary enquiry for the following charges:
17.3.1. “On or about 02 November 2016, at or near Vulekani Special School, you committed an act of misconduct in that you failed to carry out a lawful instruction without reasonable cause thereby contravening section 18(ii) of the Employment of Educators Act 76 of 1998”.
17.4. The applicants were found guilty and issued with verbal warnings valid for six (6) months effective 29 August 2017.
18. Dlamini testified that there was no vendetta against the applicants and that there was a need to redeploy the applicants. He maintained that only one of the six applicants is going to give evidence against him in a court case regarding the allegation of molesting a girl learner. There were many staff members involved in the strike and they are still employed at the school.
19. Zungu maintained that he had a professional relationship with Dlamini. He attended the staff meeting with two other union officials. He explained to the staff that he could not meet with them as a group. He was only mandated to meet with SADTU members. Staff refused to listen to him so he left. He did not have any vendetta against the applicants.
20. With regard to whether there was a valid reason for the redeployment, the following facts were either not disputed or common cause:
20.1. In terms of the PPN of 2017, apart from one deputy principal post, the school did not have additional educators. It, in fact, had three 3 fewer level 1 educators.
20.2. The applicants have the necessary standard qualification to teach at mainstream schools and the requirement that they had to have special needs qualifications was not a requirement at the time they were appointed at Vulekani.
20.3. The applicants do not have special needs qualifications.
20.4. As per page 38 - 42 of Bundle B, a staff qualification audit was conducted in 2015. The applicants declared that they did not have special needs qualifications and they undertook to further their studies in this regard.
20.5. A briefing meeting was held on 02 December 2017 where the applicants were request to sign forms declaring them additional to establishment (See page 5 of Bundle B). The applicants were advised that if they did not have special needs qualification then it would be inappropriate for them to teach at Vulekani and they would need to move to another school.
20.6. There was a staff briefing/meeting held on 16 February 2018 where the applicants were again requested to sign the declaration forms mentioned above. The applicants refused to sign the form and they submit a letter signed by all the applicants with the following content;
20.6.1. “We have seeked advice from our Union, therefore we can’t sign declaration forms till advised by our union to do so”.
20.7. On 17 July 2018, the principal handed placement letters to the applicants redeploying them to various other schools. The applicants had to report to their new schools on17 July 2018, the same day on which they received the letters. The placement letter is dated 26 June 2018.
20.8. The applicants lodged a grievances within a few days of receiving their placement letters. The outcome of the grievance was as follows:
20.8.1. “The employees are to return to their school and the process of declaring them surplus should be done afresh with the employees being considered in the learning are they taught prior to them being declared surplus. The grievance is UPHELD”.
20.9. The grievance outcome letters however incorrectly reflected the school name as Vuleka Special School instead of Vulekani. When the applicants submitted the letters to Dlamini, he request them get the letter rectified. The applicants did not return to the school with letters reflecting the correct school.
21. The applicants testified that their redeployment was not in terms of HRM 57. HRM 57 was not applicable. They were employed at the school as they had the necessary qualification and skills. They were not additional to the establishment as there were a fewer numbers of educators than required in term of PPN of 2017. There was no change in the curriculum needs at the school. There was no consultation meeting. The meeting of 16 February 2019 was a briefing session. There was therefore no basis for their redeployment.
22. Dlamini testified that there was a need to adapt the curriculum to suit the intellectual level of learners. Educators need to have special needs qualifications. Educators not only had to teach but also had to provide support to the learners. The learner rights had to be put first. It was wrong to have previously taught these learners with educators that did not have the required special needs qualifications.
23. All educators were given time to obtain special needs qualifications. He conducted an audit in September 2015 where he found that some educators did not have special needs qualification. He informed educators that they needed to upgrade themselves and learners undertook to further their studies. The learners were aware from 2015 that they had to obtain the necessary special needs qualification or be redeployed - See Page 38 - 42 of Bundle B - “You are aware that if after two years you don’t have a relevant qualification you may be redeployed to another institution where your skills may be better utilised”.
24. All the necessary processes were followed in terms of HRM 57. Educators were identified as being additional to the establishment in terms of HRM 57. Paragraph 4.2.1 allowed for two possibilities were educators may be declared additional the establishment:
24.1. Where there was a decrease in the post allocation, or
24.2. Where there was a change in the curriculum needs.
25. In this instance, there was a change in the curriculum need of the school which required educators to have the special needs qualifications to provide the necessary support for the learners.
26. There was a meeting held on 16 February 2018 in terms of HRM 57. All educators attended the said meeting and an attendance register was kept. Minutes were kept of the meeting (page 7 of Bundle B). The meeting identified educators with and without special needs qualifications. The applicants were identified as not having the necessary special needs qualifications. The applicants (and the deputy principal for a different reason) were declared as additional to the establishment (page 3 of Bundle B). The applicants were requested to sign forms declaring them additional to establishment (See page 5 of Bundle B). They refused to sign the declaration form. He compiled a report and submitted it to the department. He distributed the placement letters, albeit late, to the applicants.
27. Under cross –examination, he maintained that Mayekiso drafted the minutes of the meeting held on 16 February 2018. She, however, was not present in the afternoon to sign the minutes. He therefore got Bungane to sign the minutes as she was also present in the same meeting. With regard to the special needs qualification, he maintained that it would have taken the applicants one year to complete the qualification but he had given the applicants more than two years to do so.
28. Zungu testified that the redeployment was done in terms of HRM 57 and it based on the change in the curriculum needs of the school. The priority was the curriculum needs of the school. Meetings were held with principals to inform them how HRM must be implemented. Dlamini went back to the school and followed all the necessary HRM 57 processes and sent him all the documents. He found that the school had complied with the necessary HRM 57 procedures in identifying educators that were additional to the curriculum needs, consulting with those educators, minutes being kept of the meeting, etc. He did not have any reason to doubt the credibility of the process and he therefore proceeded to place the educators. Trade unions were present at a Circuit Management Task Team meeting and made representation of behalf of educators including the applicants regarding redeployments. He thereafter assisted two of the applicants with regard to the concerns they had with their placements. He believed that the educators that did not have special needs qualification would be better utilised at mainstream schools. The department had to learn from mistakes of the past and correct it. Educators were given an opportunity to get their special needs qualification. They committed themselves to study but they did nothing to get the necessary qualifications.
29. Under cross-examination, with regard to the 16 February 2018 meeting lasting only 30 minutes, he stated that the length of a meeting depended on the participation at the meeting and he did not view it as being too short. With regard to the change in curriculum, he stated that educators without special needs qualifications became irrelevant to the curriculum needs of the school and they had to provide management and leadership in managing the situation.
ANALYSIS OF EVIDENCE AND ARGUMENTS
30. In terms of section 186 (2) of the Labour Relations Act (“Act”), unfair labour practice means any unfair act or omission that arises between an employer and an employee involving, (b), the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
31. HRM 57 states that educators may be declared additional the establishment where there was a decrease in the post allocation or where there was a change in the curriculum needs. I accept the respondent’s argument that HRM 57 allows for two scenarios where educators may be declared additional to the requirement of the school. The use of the word “or” clearly allows for the second scenario. The first scenario is where there’s a decrease in the post allocation in instances, for example, where there is in drop in learner enrolment numbers. I do not accept the applicant’s argument that they should not have been deployed because they were not additional to the requirement in terms PPN of 2017. The second scenario clearly makes provision for redeployment where there may alternatively be a change in the curriculum needs of the school.
32. Given the special needs of the school where there are mostly severely intellectually disabled learners and learners with autisms and the need to provide special attention and support to these learners, I accept the respondent’s argument that the school had to change its focus. I accept that this change was a change in the curriculum needs of the school. I therefore accept that HRM 57 was applicable.
33. I accept that the respondent had followed all the necessary processes in terms of HRM 57 with regard to having a consultation meeting with staff, identifying the educators without special needs qualification, keeping minutes of the meeting, attempting to get the affected educators to complete the necessary forms, etc. I accept that the meeting held on 16 February 2018 was a meeting in terms of HRM 57. The fact that Bungane had signed the minutes of the meeting does not convince me that it was just a “briefing meeting”. The respondent provided a reasonable explanation as to why Bungane signed the minutes.
34. It is common cause that the applicants do not have special needs qualifications that was required in terms of the change. I am satisfied that the HRM 57 was appropriately applied.
35. The applicants’ version that they were redeployed as a punitive measure or as a form of discipline because Dlamini and Zungu had a vendetta against them is improbable for the following reasons:
35.1. I accept that the working relationship between applicants and Dlamini & Zungu was estranged especially in 2016 and 2017. There was insufficient evidence, however, to convince me that their redeployment was as a result of a vendetta that Dlamini and Zungu had against them.
35.2. The respondent had a valid reason for the redeployment and the applicants did not have the necessary special needs qualifications that was required. There was no evidence that the applicants made any attempts to register for or obtain the necessary special needs qualifications despite a commitment they made in 2015.
35.3. The applicants were the only educators that did not have special needs qualifications. The respondent did not retain any educator that did not have special needs qualifications.
35.4. The process of identifying educators who did not have the said qualification commenced in 2015, before the strike, when the principal conducted a qualification audit. The applicants were well aware in 2015 as well as in December 2017 that they faced the risk of redeployment if they did not get the necessary special skills qualifications. The decision to redeploy them was therefore a long term process and not indicative of applicants’ version that the principal just wanted them out of the school.
35.5. There was insufficient evidence to suggest why, out of all staff and educators that participated in the strike, there was a special reason to select only applicants for redeployment. It was not disputed that the other educators that participated in the 2016 strike are still employed. There was no evidence that the other educators were treated differently in any other way.
35.6. Of the six applicants, only one will testify against Dlamini with regard to the court case involving a learner. This reason was therefore not particular to the other applicants. It could well be coincidental that she also did not have the necessary special needs qualifications.
35.7. I'm not convinced that the one incident with Zungu in 2016 where he requested to meet with his union member only was sufficient to conclude that he had a vendetta against the applicants. He provided a reasonable explanation as to why he could not meet with staff that were not members of his union at that time. I accept that he had a professional relationship with Dlamini and there was insufficient evidence to suggest otherwise.
35.8. The applicants were disciplined for their actions in 2016 but I'm not convinced that that incident had anything to do with their redeployment. Had the respondent viewed their actions more seriously, it would surely have implemented a more severe sanction that a verbal warning.
36. I therefore find that the conduct of respondent in redeploying the applicants from Vulekani School was not a punitive measure and did not constitute unfair disciplinary action against the applicants.
37. In the circumstances I make the following award:
37.1. The application is dismissed.
37.2. There is no order as to costs.
Senior ELRC Arbitrator