PSES28-19/20FS
PSES28-19/20FS
Award Date:
23 September 2019
Case Number: PSES28-19/20FS
Province: Free State
Applicant: MOTOPI IF
Respondent: HOD, DEPARTMENT OF EDUCATION FS
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Fezile Dabi Education District Sasolburg in the Free State Province.
Award Date: 23 September 2019
Arbitrator: Justice Mthombeni
Case No: PSES28-19/20FS
In the matter between
MOTOPI IF Applicant
And
DEPT OF EDUCATION – FREE STATE Respondent
ARBITRATOR: Justice Mthombeni
HEARD: 02 August 2019
FINALISED: 13 September 2019
DELIVERED: 23 September 2019
SUMMARY: Labour Relations Act 66 of 1996 – Section 186 (2) (a) – Alleged Unfair Labour Practice relating to appointment as a Grade12 exam marker – Whether Unfair Labour Practice proven
DETAILS OF HEARING AND REPRESENTATION
1. This is an award in respect of the arbitration process held on 02 August 2019 and finalised on 13 September 2019 at Fezile Dabi Education District Sasolburg in the Free State Province. The applicant is Ms. Itumeleng Florence Motopi who is currently a Post Level One Educator at Nkgopoleng Secondary School in Sasolburg. She was represented by Mrs. JS Smook an attorney. The respondent was represented by Mr. Vuyisile Gubuza a Labour Relations Officer.
2. The applicant handed in a bundle of documents marked A and the respondent handed in a bundle of documents marked B. Both parties were afforded an opportunity as per their request to submit written closing arguments no later than 17 September 2019. The proceedings were digitally recorded.
THE ISSUE TO BE DETERMINED
3. I am required to determine whether an unfair labour practice relating to appointment as a Grade12 Exam Marker was committed, and if so, the appropriate relief.
BACKGROUND TO THE ISSUE IN DISPUTE
4. This is an appointment dispute. The applicant alleged that the respondent committed an unfair labour practice on the basis of its failure to appoint her as a Grade12 National Senior Certificate exams marker. The respondent submitted that the applicant was appointed as a Grade12 marker but her appointment was terminated (withdrawn) after the respondent discovered that she did not meet the criteria and pre-requisite requirements to be a Grade12 marker which is two years of teaching experience in the subject to be marked at Grade 12 level.
BRIEF SURVEY OF PARTIES’ SUBMISSIONS AND ARGUMENTS
5. As the process was recorded I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration but mainly submissions/evidence that informed my findings (section 138 (7) (a) of the Labour Relations Act 66 of 1995 (the LRA).
Evidence on behalf of the Applicant
Ms. Itumeleng Florence Motopi testified as follows:
6. She was employed as an Educator in 2014. She started teaching Grade12 Sesotho in 2018. In 2017 she was appointed to mark Grade12 Sesotho paper 3 at Thaba Nchu. In 2018 she was again appointed to mark Grade12 Sesotho but her appointment was terminated when she was already at the marking centre but before she could start marking. She was surprised as to why her appointment as a marker was terminated because in 2017 she relied on the same criteria and requirements when she was appointed as marker. Her application as a marker was approved by the school principal and her district office subject advisor, Mr. Morake. Her application was processed and approved by the respondent.
7. She met all the requirements to be appointed as a marker as set out in the PAM Document. It is not a requirement as per criteria that one should have taught Grade12 to be appointed as a marker. The termination of her appointment was unfair as she met the criteria to be appointed as a Grade12 marker. Prior to 2017 she did not teach Grade12 but she taught at an FET level which includes Grade12. She did not teach Grade 12 in 2017. She also did not teach Grade12 during the period of 2015 to 2017 in the subject she applied to mark. In 2018 she taught Grade12 Sesotho from January until two weeks just before November 2018. She does not teach Grade12 for 2019.
8. She would like to be compensated for her loss of remuneration she would have been paid as a Grade12 marker in 2018 which would have been on average amount of R16 000.00 exclusive of travelling expenses.
Evidence on behalf of the Respondent
Ms. Merriam Mapuleng Mokoena testified as follows:
9. She is an HOD for home languages at Nkgopoleng Secondary School. The applicant is under her supervision. The applicant taught Grade12 Sesotho from January to July 2018 and thereafter she was allocated to teach Grade 8 classes for the remainder of the year. Therefore, the applicant has only six months teaching experience at Grade 12 level.
10. She complaint to the department about the applicant’s appointment as a Grade 12 marker because she also applied to mark Grade 12 exam and was not appointed despite her being an HOD for languages and her Grade 12 teaching experience. She was concerned that the applicant was appointed as a Grade 12 marker when she did not teach Grade 12 and did not have any Grade 12 exam results at the school.
Mr. Motsoane Jonas Tladi testified as follows:
11. He is an Acting Head of Examinations with the respondent. The procedure for applying to be a Grade 12 marker is that application forms would be sent to schools for any person who qualifies to be a marker to apply. The school principal would sign the forms and send them to the district office for processing. The officials at the district office do not know who qualifies and who does not qualify to be a Grade 12 marker, they rely on the information provided by the principal. The subject advisors would recommend markers and chief markers would appoint the markers.
12. The challenge with the applicant’s appointment was that she was supposed to have taught Grade 12 for at least two years in the last five years before she could apply to be a marker. He discovered that the applicant did not have two years teaching experience at Grade 12 Level. She did not even complete her first year in teaching Grade 12. As a result the applicant did not qualify to mark Grade 12 examinations. He does not know the reasons why the applicant was appointed as a marker in 2017 as she taught Grade 11 at the time of her appointment.
13. The requirement to be appointed as a Grade 12 marker is that a teacher should have taught Grade 12 at least for two years. One of the reasons for termination or withdrawal of the applicant’s appointment as a Grade 12 marker was to ensure fairness to those who qualified but were not appointed. Teaching experience at the appropriate level in the subject refers to Grade 12 because Grade 12 syllabus is not the same as that of Grades 10 and 11. A teacher who taught Grade 10 and 11 might not be able to mark a Grade 12 exam as he/she would not have taught Grade 12 syllabus. The difference between a Phase and a Level is that Phase is a grouping. For example Grade R to 3 would be a foundation phase and FET Phase would be Grade 10 to 12. A level refers to Grade for example Grade 11 or 12. Teaching experience at an appropriate level in this matter refers to Grade 12. Marking of exams would be at a Grade 12 level.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. Section 186 (2) (a) of the LRA defines “unfair labour practice” as any unfair act or omission that arises between an employer and an employee involving - unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee. The alleged unfair conduct in this matter relates to failure to appoint or alternatively withdrawal of an appointment as a Grade 12 marker by the respondent.
15. An employee who alleges that he/she is the victim of an unfair labour practice bears the onus of proving all of the elements of his/her claim on a balance of probabilities (Dempsey v Home & Property (1995) 16 ILJ 378 (LAC)). The employee must not only prove the existence of the labour practice, but also that it is unfair. What is unfair depends upon the circumstances of a particular case and essentially involves a value judgement (NEHAW v University of Cape Town (2003) 24 ILJ 95 (CC) par 33)). Within the education sector, the fairness required in determination of an unfair labour practice dispute is fairness towards the department, the educator, learners and the community within which the school is situated. To show unfairness relating to failure to appoint or withdrawal of an appointment the educator needs to show that the department in not appointing her or withdrawing her appointment as a Grade 12 marker acted in a manner that warrants interference with its decision by proving that the department acted irrationally, capriciously or arbitrarily, and that the action of the department was motivated by bias, malice or fraud and that the department failed to apply its mind or unfairly discriminated (Ndlovu v CCMA & others (2000) 21 ILJ 1653 (LC)).
16. The applicant submitted that she expected to be appointed as a Grade 12 marker as she was previously appointed in 2017 to mark Grade 12 National Senior Certificate Examination. In 2018 she applied and she was appointed as a marker but her appointment was withdrawn by the respondent on the basis that she did not meet the requirements to be appointed as a marker. In my view, the applicant’s appointment as a marker in 2018 was erroneously sought as argued by the respondent because she did not meet the requirements to be appointed as a Grade 12 marker. The applicant did not have two years teaching experience of Sesotho at Grade 12 level as criteria stipulated on the application form for appointment as marker for December 2018 National Senior Certificate (see page 1 of bundle B).
17. The applicant cannot rely on the fact that she met the requirements to be a marker in that in 2017 she was appointed as a marker based on the same set of experience and criteria. It is noteworthy that when the applicant applied to be a marker in 2017 she did not meet the requirements and criteria to be a Grade 12 marker. The respondent submitted that it did not know the reasons why the applicant was appointed to mark when she did not qualify. Though the applicant had an experience in teaching Sesotho her experience was not at Grade 12 level which in this instance is an appropriate level to be appointed as a marker.
18. The discretion to appoint falls within the managerial prerogative of the employer (the education department in this instance) and in the absence of gross unreasonableness or bad faith or where the decision relating to appointment is seriously flawed, arbitrators will not interfere with the exercise of the discretion, especially in the public education sector where stability is required and the best interests of the learners are of paramount importance (HOD, Western Cape Department of Education and others v School Governing Body, Point High School and others (2008) 5 SA 18 (SCA)). The respondent submitted that the applicant’s appointment as a marker was withdrawn not only because it was erroneously sought but also in the interest of quality Grade 12 National Senior Certificate examination results.
19. In retrospect the applicant’s dispute in view of the arguments and evidence before me does not fall within the meaning of unfair labour practice as defined in section 186 (2) (a) of the LRA. Therefore, the Council does not have jurisdiction to adjudicate over the dispute.
AWARD
In the premises I make the following award and order:
20. The respondent did not commit an unfair labour practice as envisaged in terms of section 186 (2) (a) of the LRA.
21. The applicant’s claim is dismissed.
22. The Council is directed to close the file.
Justice Mthombeni
ELRC Panellist
23 September 2019
Province: Free State
Applicant: MOTOPI IF
Respondent: HOD, DEPARTMENT OF EDUCATION FS
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Fezile Dabi Education District Sasolburg in the Free State Province.
Award Date: 23 September 2019
Arbitrator: Justice Mthombeni
Case No: PSES28-19/20FS
In the matter between
MOTOPI IF Applicant
And
DEPT OF EDUCATION – FREE STATE Respondent
ARBITRATOR: Justice Mthombeni
HEARD: 02 August 2019
FINALISED: 13 September 2019
DELIVERED: 23 September 2019
SUMMARY: Labour Relations Act 66 of 1996 – Section 186 (2) (a) – Alleged Unfair Labour Practice relating to appointment as a Grade12 exam marker – Whether Unfair Labour Practice proven
DETAILS OF HEARING AND REPRESENTATION
1. This is an award in respect of the arbitration process held on 02 August 2019 and finalised on 13 September 2019 at Fezile Dabi Education District Sasolburg in the Free State Province. The applicant is Ms. Itumeleng Florence Motopi who is currently a Post Level One Educator at Nkgopoleng Secondary School in Sasolburg. She was represented by Mrs. JS Smook an attorney. The respondent was represented by Mr. Vuyisile Gubuza a Labour Relations Officer.
2. The applicant handed in a bundle of documents marked A and the respondent handed in a bundle of documents marked B. Both parties were afforded an opportunity as per their request to submit written closing arguments no later than 17 September 2019. The proceedings were digitally recorded.
THE ISSUE TO BE DETERMINED
3. I am required to determine whether an unfair labour practice relating to appointment as a Grade12 Exam Marker was committed, and if so, the appropriate relief.
BACKGROUND TO THE ISSUE IN DISPUTE
4. This is an appointment dispute. The applicant alleged that the respondent committed an unfair labour practice on the basis of its failure to appoint her as a Grade12 National Senior Certificate exams marker. The respondent submitted that the applicant was appointed as a Grade12 marker but her appointment was terminated (withdrawn) after the respondent discovered that she did not meet the criteria and pre-requisite requirements to be a Grade12 marker which is two years of teaching experience in the subject to be marked at Grade 12 level.
BRIEF SURVEY OF PARTIES’ SUBMISSIONS AND ARGUMENTS
5. As the process was recorded I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration but mainly submissions/evidence that informed my findings (section 138 (7) (a) of the Labour Relations Act 66 of 1995 (the LRA).
Evidence on behalf of the Applicant
Ms. Itumeleng Florence Motopi testified as follows:
6. She was employed as an Educator in 2014. She started teaching Grade12 Sesotho in 2018. In 2017 she was appointed to mark Grade12 Sesotho paper 3 at Thaba Nchu. In 2018 she was again appointed to mark Grade12 Sesotho but her appointment was terminated when she was already at the marking centre but before she could start marking. She was surprised as to why her appointment as a marker was terminated because in 2017 she relied on the same criteria and requirements when she was appointed as marker. Her application as a marker was approved by the school principal and her district office subject advisor, Mr. Morake. Her application was processed and approved by the respondent.
7. She met all the requirements to be appointed as a marker as set out in the PAM Document. It is not a requirement as per criteria that one should have taught Grade12 to be appointed as a marker. The termination of her appointment was unfair as she met the criteria to be appointed as a Grade12 marker. Prior to 2017 she did not teach Grade12 but she taught at an FET level which includes Grade12. She did not teach Grade 12 in 2017. She also did not teach Grade12 during the period of 2015 to 2017 in the subject she applied to mark. In 2018 she taught Grade12 Sesotho from January until two weeks just before November 2018. She does not teach Grade12 for 2019.
8. She would like to be compensated for her loss of remuneration she would have been paid as a Grade12 marker in 2018 which would have been on average amount of R16 000.00 exclusive of travelling expenses.
Evidence on behalf of the Respondent
Ms. Merriam Mapuleng Mokoena testified as follows:
9. She is an HOD for home languages at Nkgopoleng Secondary School. The applicant is under her supervision. The applicant taught Grade12 Sesotho from January to July 2018 and thereafter she was allocated to teach Grade 8 classes for the remainder of the year. Therefore, the applicant has only six months teaching experience at Grade 12 level.
10. She complaint to the department about the applicant’s appointment as a Grade 12 marker because she also applied to mark Grade 12 exam and was not appointed despite her being an HOD for languages and her Grade 12 teaching experience. She was concerned that the applicant was appointed as a Grade 12 marker when she did not teach Grade 12 and did not have any Grade 12 exam results at the school.
Mr. Motsoane Jonas Tladi testified as follows:
11. He is an Acting Head of Examinations with the respondent. The procedure for applying to be a Grade 12 marker is that application forms would be sent to schools for any person who qualifies to be a marker to apply. The school principal would sign the forms and send them to the district office for processing. The officials at the district office do not know who qualifies and who does not qualify to be a Grade 12 marker, they rely on the information provided by the principal. The subject advisors would recommend markers and chief markers would appoint the markers.
12. The challenge with the applicant’s appointment was that she was supposed to have taught Grade 12 for at least two years in the last five years before she could apply to be a marker. He discovered that the applicant did not have two years teaching experience at Grade 12 Level. She did not even complete her first year in teaching Grade 12. As a result the applicant did not qualify to mark Grade 12 examinations. He does not know the reasons why the applicant was appointed as a marker in 2017 as she taught Grade 11 at the time of her appointment.
13. The requirement to be appointed as a Grade 12 marker is that a teacher should have taught Grade 12 at least for two years. One of the reasons for termination or withdrawal of the applicant’s appointment as a Grade 12 marker was to ensure fairness to those who qualified but were not appointed. Teaching experience at the appropriate level in the subject refers to Grade 12 because Grade 12 syllabus is not the same as that of Grades 10 and 11. A teacher who taught Grade 10 and 11 might not be able to mark a Grade 12 exam as he/she would not have taught Grade 12 syllabus. The difference between a Phase and a Level is that Phase is a grouping. For example Grade R to 3 would be a foundation phase and FET Phase would be Grade 10 to 12. A level refers to Grade for example Grade 11 or 12. Teaching experience at an appropriate level in this matter refers to Grade 12. Marking of exams would be at a Grade 12 level.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. Section 186 (2) (a) of the LRA defines “unfair labour practice” as any unfair act or omission that arises between an employer and an employee involving - unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee. The alleged unfair conduct in this matter relates to failure to appoint or alternatively withdrawal of an appointment as a Grade 12 marker by the respondent.
15. An employee who alleges that he/she is the victim of an unfair labour practice bears the onus of proving all of the elements of his/her claim on a balance of probabilities (Dempsey v Home & Property (1995) 16 ILJ 378 (LAC)). The employee must not only prove the existence of the labour practice, but also that it is unfair. What is unfair depends upon the circumstances of a particular case and essentially involves a value judgement (NEHAW v University of Cape Town (2003) 24 ILJ 95 (CC) par 33)). Within the education sector, the fairness required in determination of an unfair labour practice dispute is fairness towards the department, the educator, learners and the community within which the school is situated. To show unfairness relating to failure to appoint or withdrawal of an appointment the educator needs to show that the department in not appointing her or withdrawing her appointment as a Grade 12 marker acted in a manner that warrants interference with its decision by proving that the department acted irrationally, capriciously or arbitrarily, and that the action of the department was motivated by bias, malice or fraud and that the department failed to apply its mind or unfairly discriminated (Ndlovu v CCMA & others (2000) 21 ILJ 1653 (LC)).
16. The applicant submitted that she expected to be appointed as a Grade 12 marker as she was previously appointed in 2017 to mark Grade 12 National Senior Certificate Examination. In 2018 she applied and she was appointed as a marker but her appointment was withdrawn by the respondent on the basis that she did not meet the requirements to be appointed as a marker. In my view, the applicant’s appointment as a marker in 2018 was erroneously sought as argued by the respondent because she did not meet the requirements to be appointed as a Grade 12 marker. The applicant did not have two years teaching experience of Sesotho at Grade 12 level as criteria stipulated on the application form for appointment as marker for December 2018 National Senior Certificate (see page 1 of bundle B).
17. The applicant cannot rely on the fact that she met the requirements to be a marker in that in 2017 she was appointed as a marker based on the same set of experience and criteria. It is noteworthy that when the applicant applied to be a marker in 2017 she did not meet the requirements and criteria to be a Grade 12 marker. The respondent submitted that it did not know the reasons why the applicant was appointed to mark when she did not qualify. Though the applicant had an experience in teaching Sesotho her experience was not at Grade 12 level which in this instance is an appropriate level to be appointed as a marker.
18. The discretion to appoint falls within the managerial prerogative of the employer (the education department in this instance) and in the absence of gross unreasonableness or bad faith or where the decision relating to appointment is seriously flawed, arbitrators will not interfere with the exercise of the discretion, especially in the public education sector where stability is required and the best interests of the learners are of paramount importance (HOD, Western Cape Department of Education and others v School Governing Body, Point High School and others (2008) 5 SA 18 (SCA)). The respondent submitted that the applicant’s appointment as a marker was withdrawn not only because it was erroneously sought but also in the interest of quality Grade 12 National Senior Certificate examination results.
19. In retrospect the applicant’s dispute in view of the arguments and evidence before me does not fall within the meaning of unfair labour practice as defined in section 186 (2) (a) of the LRA. Therefore, the Council does not have jurisdiction to adjudicate over the dispute.
AWARD
In the premises I make the following award and order:
20. The respondent did not commit an unfair labour practice as envisaged in terms of section 186 (2) (a) of the LRA.
21. The applicant’s claim is dismissed.
22. The Council is directed to close the file.
Justice Mthombeni
ELRC Panellist
23 September 2019