PSES202-19/20 KZN
Award  Date:
28 March 2020
Case Number: PSES202-19/20 KZN
Province: KwaZulu-Natal
Applicant: SALIPSWU obo B.B KHULOSE
Respondent: DEPARTMENT OF EDUCATION KWAZULU NATAL MR E.V. NZAMA
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 28 March 2020
Arbitrator: A. Deyzel
Commissioner: A. Deyzel
Case No.: PSES202-19/20 KZN
Date of Award: 28 March 2020

In the ARBITRATION between:

SALIPSWU obo B.B KHULOSE

(Applicant)
and
DEPARTMENT OF EDUCATION KWAZULU NATAL
MR E.V. NZAMA

(Respondent)
Union/Applicant’s representative: Mr R M. Makhanya
Union/Applicant’s address: SALIPSWU obo Khulose B.B.
6th Floor
320 Pixley ka Seme Street
Durban
Tel : 083 9666 816

Respondent’s representative: Mr A. Preethpaul
Respondent’s address: Department of Education
P.O. Box 9044
Durban
3200
Telephone: 083 4462 229
e- Ami.Preethpaul@kzneducation.gov.za

REASONS

1. On 21 May 2019 the applicant referred a dispute to the ELRC for conciliation/ arbitration. In the referral document the applicant alleged that the dispute relates to the promotion/appointment of Mr D.V. Mhlaba into the principal post advertised as Post No 37 in HRM 59/2017 and that it in particular relates to the irregular placement of Mr Mhlaba in the said principal post.

2. Mr Mhlaba was placed in the post and the relief sought included the setting aside of the placement / appointment as well as an order that the department should commence the promotion process with immediate effect.

3. On 25 June 2019 the applicant requested that the dispute be resolved through arbitration.

4. The arbitration was set down for hearing on 18 March 2020.

5. On 18 March 2010 the department was represented by an official in its employ, Mr Preethpaul and the applicant was represented by a union official, Mr Makhanya. There was no appearance by or on behalf of Mr Mhlaba.

6. At the outset Mr Preethpaul raised an objection to the jurisdiction of the council to arbitrate this matter. He denied that the dispute concerned a failure to promote the applicant. In the department’s view the dispute was an interest dispute and it was not a dispute that may arbitrated by the council.

7. Oral argument was heard. At the request of the parties they were given an opportunity to supplement the oral argument with written argument. The written argument was received on 25 March 2020.

8. The background to this matter and the submissions of the parties appear from their written argument summarised in paragraphs 9 to 22 hereunder.

9. The vacant principal post at Muziwabantu Primary school was advertised in H.R.M. Circular No 59 of 2017 as Post No 37 and the applicant applied for appointment to the post.

10. The applications were due to be processed through shifting, short listing interviews, recommendation and appointment.

11. Mr Mhlaba used to be the principal of Mandosi Primary school until he was displaced.

12. At all relevant times Collective Agreement 2 of 2008 dealt with the procedure for dealing with institution based educators who had been displaced as a result of work related violence or intimidation.

13. Item B.6.5 of Collective Agreement 2 of 2008 provides for the following procedure to be followed in filling vacancies in cases where the department has educators in addition to a staff establishment.

“B.6.5.1 In terms of section 6 and/ or section 8 of the Employment of Educators Act (1998) the employer may transfer an educator who is in addition to another post in the department that matches his/her skills and experience.
B.6.5.2. In terms of section (6) (3) and/or section 8 (2) of the Employment of Educators Act, the employer may only transfer an educator permanently to a school on the recommendation of the governing body of such school…
B5.6 The HoD may in terms of section 8.5 temporarily transfer an educator declared additional to the staff establishment.”

14. If an educator was displaced on a justifiable basis such educator was deemed to be in excess to the educator establishment of his or her school and was dealt with in accordance with the provisions relating to excess educators.

15. The procedure for the implementation of the Post Provisioning Norm appeared from ELRC Resolution 2 of 2001. In accordance with that procedure Mr Mhlaba was given a compulsory temporary transfer to Muziwabantu Primary School as there was an appropriate vacancy.

16. The district director addressed a letter to Mr Mhlaba which was dated 8 May 2018 and which read as follows:
“1. Please be informed that you have been placed by way of a temporary transfer in terms of Section 6 (8)(5) of the employment of Educators Act 76 of 1998 as amended at Muziwabantu Primary School in the KwaMashu Central Circuit. You are requested to report for duty with immediate effect.
2. This temporary transfer may be converted into permanency upon receipt of the recommendations of the School Governing Body.
3. The temporary transfer will be for a period of 12 months unless your permanency is confirmed by the School Governing Body.
4. You may make representations regarding this placement, within 05 days of receiving this letter. Such representations must be directed to the Employee Relation Component of the district within which you have been declared as a surplus.
5. Should you invoke your rights in paragraph 4 above the department reserves the right to place another educator in the said post.”

17. The district task team placed Mr Mhlaba into the vacant principal post at Muziwabantu Primarily School.

18. The shortlisting and interviewing of candidates had not yet been done when the vacancy was withdrawn.

19. In paragraph 22.3 of HRM 59 of 2017 it was recorded that the department reserved the right to withdraw any post should it be found that such post no longer exists. In my view this would happen if a displaced educator is placed or absorbed into the post

20. It was in effect submitted on behalf of the department that it did not constitute an unfair labour practice to absorb Dr Mhlaba into the vacant Principalship post of Muziwabantu Primary School. In this regard it submitted that it made sense to absorb a serving suitable excess educator into a vacant post rather than filling it with a new incumbent.

21. In terms of Chapter 3, section 6 (3) (a) of the Employment of Educators Act any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the School Governing Body.

22. If there are educators in the provincial Department of Education who are in excess of the educator establishment, the said recommendation may only be made from such displaced educators identified by the head of department as being so in excess and suitable.

23. The applicant, Ms Khulose, was not such a candidate as she was not in excess of the educator establishment in the province.

24. For that reason the School Governing Body could not recommend her for appointment or promotion to Post No 37 published in HRM 59 OF 2017.

25. If there are displaced educators in the department who are in excess of the educator establishment and suitable they should be placed in the post irrespective whether such appointment is recommended by the School Governing Body or not.

26. In the present case there was at least one educator in excess on the educator establishment of the department, i.e. Mr Mhlaba and for that reason he had to be placed in the post even though the post was advertised. It was inappropriate and a mistake to advertise the post when there was a displaced principal(s) who could be placed in the post. When this became known the advertisement was withdrawn and Mr Mhlaba was placed in the post.

27. In all the circumstances the dispute do not concern an unfair labour practice relating to promotion.

AWARD
(a) These disputes that applicant, SALIPSWU o b o B.B. Khulose requires to be arbitrated does not relate to a promotion and also does not relate to a dispute that the LRA requires the ELRC to arbitrate.
(b) The applicant is not entitled to any relief

DATED at DURBAN this 27th day of MARCH 2020.

A. DEYZEL
SENIOR COMMISSIONER
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