Case Number: PSES638-18/19EC
Province: Eastern Cape
Applicant: MA Cunningham
Respondent: 1st Respondent Department of Education: Province of the Eastern Cape,2nd Respondent Head of Department (HOD), 3rd School Governing Body (SGB ) of Cedarberg Primary School
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: Department of Education’s District Office in Port Elizabeth.
Award Date: 2 August 2019
Arbitrator: JULIA CAMERON
Case No. PSES638-18/19EC
In the matter between
MA Cunningham Applicant
Department of Education: Province of the Eastern Cape 1st Respondent
Member of Executive Council (MEC)
Department of Education: Province of the Eastern Cape 2nd Respondent
Head of Department (HOD)
Department of Education: Province of the Eastern Cape 3rd Respondent
School Governing Body (SGB ) of Cedarberg Primary School
(As represented by its Chairperson) 4th Respondent
P Emmanuel 5th Respondent
PANELIST: JULIA CAMERON
DATE OF RULING: 2 AUGUST 2019
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration in terms of Section 186 (2) (a) of the Labour Relations Act 56 of 1995 (as amended) (the LRA) on 24 July 2019 at the Department of Education’s District Office in Port Elizabeth.
2 Advocate W Blundin represented Ms MA Cunningham (the applicant).
3 Mr C Pillay represented the Department of Education: Province of the Eastern Cape (1st respondent) and the Head of Department (HOD) (3rd respondent).
4 Mr MW Hlekani represented the Member of Executive Council (MEC) (2nd respondent).
5 Ms B Moss represented the School Governing Body (SGB) of the Cedarberg Primary School in her capacity as Deputy Chairperson (4th respondent).
6 Ms P Emmanuel (5th respondent) failed to attend the proceedings, despite being notified thereof.
ISSUE TO BE DECIDED
7 The issue to be determined is whether the alleged unlawful transfer of Ms P Emmanuel to the position of Deputy Principal of Cedarberg Primary School constituted an unfair labour practice on the part of the respondents, as envisaged in Section 186 (2) (a) of the LRA, toward the applicant, Ms MA Cunningham.
8 The applicant referred a dispute to the Education Labour Relations Council (ELRC) concerning an alleged unfair labour practice relating to promotion arising out her unsuccessful application for the post of Deputy Principal, Cedarberg Primary School in Port Elizabeth, as advertised in the Open Education Post Bulletin Volume 3/2016- 822.
9 The applicant challenged the outcome of the selection process and sought as relief that the alleged unlawful transfer of Ms P Emmanuel be set aside and that the appointment of the applicant in the position of Deputy Principal be confirmed.
10 At the first sitting of the arbitration hearing on 23 May 2019, the first respondent argued that the issue in dispute was “misplaced” because no promotion was ever effected in respect of Post No 822 which was advertised in Bulletin Volume 3 of 2016 (i.e. the post of Deputy Principal of Cedarberg Primary School). It was accordingly submitted that the referral of the promotion dispute was premature and should be dismissed in terms of a jurisdictional ruling before the commencement of the proceedings.
11 The applicant objected to such a jurisdictional point being argued without due procedure being followed in terms of Rule 57 of the ELRC’s Constitution.
12 In an interim ruling dated 22 June 2019, I ruled, inter alia, that the point raised by the first respondent could not be decided before “oral and other evidence” was adduced on the issue in dispute, which was whether respondent’s failure to promote the applicant to the position of Deputy Principal of Cedarberg Primary School constituted an unfair labour practice.
13 It was also ruled that Advocate Blundin could represent the applicant, and the second to fifth respondent’s were joined as parties to the arbitration proceedings as it was determined that they had a direct and substantial interest in the outcome thereof.
14 The arbitration was accordingly rescheduled to continue on 24 July 2019, which summary of arguments heard is outlined below.
SUMMARY OF ARGUMENT
15 The first, second and third respondents (the respondents) argued that the issue in dispute related solely to a point of law, and therefore it was not necessary for oral evidence to be adduced. It was contended that no promotion was ever affected in respect of the post placed in dispute by the applicant, and that the claim of unfair labour practice in terms of Section 186 (2) (a) of the LRA should accordingly be dismissed.
16 The applicant submitted that it was necessary to lead witness testimony showing that Ms Cunningham was identified as the preferred candidate for the position of Deputy Principal and accordingly recommended by the SGB of Cedarberg Primary School to be appointed to the position subsequent to the advertisement Volume 3/2016 - 822. However, instead of appointing Ms Cunningham, the respondents unlawfully transferred Ms P Emmanuel to the position from Winterberg Primary School.
17 The applicant argued that the employer could not transfer or promote any employee without the recommendation of the SGB of the particular school, and therefore, the transfer of Ms Emmanuel was unlawful.
18 The respondents conceded that many of the factual issues raised by the applicant were common cause. It was argued, however, that Ms Emmanuel was already a post level 3 Deputy Principal at Winterberg Primary School where she was subsequently declared as additional to the 2017 staff establishment and therefore in excess in terms of the ELRC Collective Agreement 4 of 2016. It was for this reason that no appointment was made following the advertisement for the post of Deputy Principal of Cedarberg Primary School, and instead Ms Emmanuel was transferred to the post.
19 The respondents made reference to Section 6 (3) (a) of the Employment of Educators Act 76 of 1998 and argued that it was the employer’s prerogative to transfer an employee for reasons of operational requirements.
20 The respondents handed up documentary evidence, including the ELRC Collective Agreements 3 and 4 of 2016, and the Employment of Educators Act 76 of 1998.
21 The respondents submitted that the issue in dispute therefore did not fall under the definition of an unfair labour practice as contemplated in Section 186 (2) (a) of the LRA. The ELRC accordingly did not have jurisdiction to adjudicate the dispute. The respondent contended that should the applicant continue to claim that the transfer of Ms Emmanuel was unlawful, the dispute should be referred in terms of the dispute resolution clause of the ELRC Collective Agreements 3 and 4 of 2016, or alternatively pursued as an administrative action as provided for in the Labour Court.
ANALYSIS OF ARGUMENT
22 Having heard the oral argument and perused the documentary evidence of the parties I determined that it was unnecessary to hear further oral evidence on the alleged unfairness of the transfer of Ms Emmanuel. It was apparent on the information before me that the ELRC did not have the jurisdiction to adjudicate the dispute under the auspices of Section 186 (2) (a) of the LRA, and that the matter could be decided on the argument submitted by the parties thus far in the already protracted proceedings.
23 After my decision in this regard was communicated on the record, the applicant requested my recusal from the proceedings and argued that the matter should be re-enrolled before another Commissioner. It must be noted that the applicant also requested the recusal of the previous Commissioner tasked with dealing with this dispute, who recused himself in terms of a ruling dated 20 February 2019.
24 In light of the fact that I was of the opinion that the request for my recusal was improper because I had already made a determination on the record, I did not entertain further arguments in this regard.
25 It is evident on the information before me, that the dispute referred by the applicant pertains to the transfer of an employee in terms of the ELRC Collective Agreements 3 and 4 of 2016, read with the Employment of Educators Act 76 of 1998, and was done so based on the operational requirements of the first to third respondents. The dispute therefore does not fall under the definition of an unfair labour practice as contemplated in Section 186 (2) (a) of the LRA, and the ELRC accordingly lacks the jurisdiction to adjudicate the dispute as such.
27 The application in PSES 638-18/19 EC is hereby dismissed.
2 AUGUST 2019