Commissioner: George Georghiades
Case No.: ELRC485-20/21GP
Date of Award: 17 March 2021
In the ARBITRATION between:
GALEKHUTLE, MESHACK SEBONGILE
(Union / Applicant)
EDUCATION DEPARTMENT OF GAUTENG
Union/Applicant’s representative: Mr. Meshack Sebongile Galekhutle
Union/Applicant’s address: 13805 Sol Plaatjies Street
Mobile: 078 544 2554
Respondent’s representative: Mr. Mvuleni Tshitshiba
Respondent’s address: Education Department of Gauteng
Private Bag X2020
Telephone: 011 660 4581 Facsimile: 011 660 4581
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between Galekhutle, Meshack Sebongile and the Education Department of Gauteng was held under the auspices of the Education Labour Relation Council (“ELRC”), via Zoom Meetings. The matter was set down for arbitration on 11 March 2021, as referred in terms of section 186(2)(a), of the Labour Relations Act 66 of 1995, as amended (LRA), the nature of the dispute being the unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissal for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
2. The proceedings were conducted in English and were manually and digitally (video and audio) recorded.
3. The applicant represented himself while the respondent was represented by Mr. Mvuleni Tshitshiba. The parties submitted their evidence bundles upon which they intended relying to the panellist via email, copying the opposing party prior to the commencement of the arbitration proceedings. The respondent submitted its bundle of documents which was marked as bundle “R” and the applicant submitted its bundle, which was marked as bundle “A”.
4. No preliminary issues were raised by the parties.
ISSUES TO BE DECIDED
5. This matter was brought in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (LRA) and relates to the unfair conduct by the employer relating to promotion, demotion, probation, or training of an employee, or relating to the provision of benefits to an employee.
6. I am tasked to establish whether the respondent conducted itself unfairly by reversing the appointment of the applicant from an acting position.
7. The applicant has requested that should I find in his favour, the district director be ordered to provide him with an apology and to withdraw the memo sent to the schools in the circuit wherein the reversal of his appointment was stated. He has further requested that a letter be issued by the District Director indicating there were no reasons for the reversal of his appointment to the acting position.
BACKGROUND TO THE DISPUTE
8. The applicant, Mr. Galekhutle, was employed as a deputy principal by the Department of Education in the Gauteng West region. He was identified by the respondent to act as an Institutional Development and Support Official (IDSO) within circuit 2 of Gauteng West and after having accepted a written offer relating to this, he was appointed to this position.
9. Shortly thereafter, he was called to the respondent’s offices and his appointment was unfairly withdrawn. It was claimed that his appointment was inappropriate, causing harm to his reputation and integrity and blocking any possibility of his career path and growth.
10. The respondent disputed this, submitting that the Gauteng Department of Education acted in line with the GDE Acting Policy and did not stray from this policy in withdrawing of the applicant’s appointment.
11. As the matter referred to the ELRC by the applicant relates to unfair labour practice, the onus of proof rests upon the applicant for this claim to succeed.
12. Both the applicant and the respondent’s representative led evidence relying on documents to prove their respective cases, with the respondent calling one (1) witness to testify on its behalf.
13. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Both parties did so in writing, and I have considered these in my award below.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Mr. Meshack Sebongile Galekhutle, testified under oath that:
14. He has been employed by the Gauteng Department of Education for more than thirty (30) years. He served as a deputy principal prior to having accepted an acting position as an Institutional Development and Support Official (IDSO). He has since been removed from this position by the respondent.
15. He received a telephone call from his circuit manager, Mr. Seoposengwe, on 11 August 2020, inquiring whether he would be prepared to serve as an IDSO for circuit 2, Gauteng West. He indicated he was prepared to do so. Shortly thereafter, he was advised that this appointment had been approved.
16. On 13 August 2020, he was called to the office of the District Director and provided with a written offer to act as an Institutional Development and Support Official (IDSO). This offer was signed by the District Director: Gauteng West, Mr. Oupa Koapeng and provided to him, which he duly accepted.
17. On 17 August 2020, the District Director issued a memo to the headmasters of all schools in the district, wherein his appointment as an acting IDSO was confirmed.
18. Shortly after his appointment, he received a SMS message to attend a meeting at the office of the Director: Head of Curriculum. At this meeting he was advised by the District Director that several principals had complained about his appointment as an acting IDSO.
19. He was issued a letter withdrawing his appointment letter as an IDSO. The letter stated that his appointment was withdrawn after a consultation was held between the District Director and the Chief Director, where a resolution was reached that his appointment was inappropriate.
20. He consulted with his trade union official who in turn, inquired from the District Director as to the reason for the withdrawal. The trade union official was advised that the withdrawal letter was due to a directive received from the Chief Director. As a result, legal opinion was sought.
21. A grievance meeting convened by the respondent took place on 16 September 2020. At this meeting, the District Director provided that the withdrawal letter was issued in line with the GDE Acting Policy. No reference was made to the initial reason claimed by the Director for the withdrawal, being the complaints by principals within the circuit.
22. He requested that the District Director allow him sufficient time to study the GDE Acting Policy, as the contents thereof were unknown to him. After studying the GDE Acting Policy, he could not find any reason why he was not permitted to act as an IDSO.
23. A second meeting to address his grievance was convened for the 21 September 2020. At this meeting, the District Director provided the reason for the withdrawal letter was based on the policies contained in the GDE Acting Policy and a directive to this affect, provided by the Chief Director. The reasons for the Chief Director’s directive were not discussed.
24. A request was made to the Head of Department to intervene in the dispute. A response was received after six weeks, which was badly flawed. These flaws included the incorrect reference to the unit wherein he was employed, suggesting that his job functions in that (incorrectly cited) unit failed to match up adequately with those required as an IDSO. There were other people who were employed in similar positions who were from the same unit wherein he was previously employed, being the Teachers Development Unit.
25. Under cross examination, he stated that the policy permitted an employee to be appointed to act in a post that was one post higher than his permanent position if competent to do so and that an employee could be appointed from a unit outside of the same classification if there were no suitable, qualifying employees within the unit. Both of these conditions had been complied with in his appointment to the position of acting IDSO.
26. Although the conceded that the duties of his current position (deputy principal) did not include IDSO-related functions, he had previously interacted with IDSO’s and had attended an Executive Leadership Course at Wits University. The university had subsequently appointed him to train IDSO’s. This suggested that he was competent to be appointed as an acting IDSO.
27. The respondent acted unfairly by withdrawing his properly attained appointment to act as an IDSO, so doing, causing his integrity and reputation to be tarnished and blocking any possible growth in respect of his career path.
The applicant closed its case.
THE RESPONDENT’S CASE
The respondent’s first witness, Mr. Oupa Koapeng, testified under oath as follows:
28. He is employed by the respondent as the District Director: Gauteng West.
29. The applicant was identified for the position of acting Institutional Development and Support Official (IDSO), which had become vacant under his management. A letter of appointment was provided to the applicant offering him to be appointed as an acting IDSO. The applicant accepted the offer in writing.
30. Following a meeting with the Chief Director (CD) thereafter, he was advised by the CD that the appointment of the applicant to the acting position was inappropriate because of the applicant’s lack of experience and because he did not meet the qualification requirements of the position as acting IDSO.
31. Thereafter, a meeting was held with the applicant, where he was informed of this and a letter of withdrawal of his appointment was provided to him.
32. He was advised that the applicant had met with an official from his trade union as he was not satisfied with the processes that had been followed. A meeting was subsequently convened where the applicant was afforded the opportunity to state his case. The applicant was not satisfied with the outcome of this meeting, continuing to dispute the processes that were conducted by the respondent. The applicant was advised that the processes conducted were in line with the GDE Acting Policy.
33. The Chief Director told him that he felt that school principals would be unhappy with the appointment of the applicant as an acting IDSO, as he was not qualified to manage, train, and assess principals. He conveyed this view of the Chief Director’s view to the applicant.
34. This view adopted by the Chief Director, was formed after he became aware of the memorandum sent to all schools in the circuit, confirming the appointment of the applicant in the acting IDSO post.
35. The applicant was not appointed in the PMS unit as suggested by the Head of Department in the letter of response to the applicant. The HOD stated that the applicant was appointed from a unit outside that of the required unit, suggesting that he was not appropriately suited to act in the post of IDSO.
36. He initially supported the recommendation of the District Circuit Manager Mr. Seoposengwe at face value, that the applicant should be appointed to the acting IDSO post. Mr. Seoposengwe stated that he wanted the applicant to carry out the functions and tasks of the unit.
37. Although the Chief Director: Strategic HR Manager is delegated to make all appointments, this was not required in the case of the applicant’s appointment, as this was an acting post where it clearly stated in the appointment letter that the salary and conditions of service remained unchanged.
38. The Gauteng Department of Education has a sub-directorate: Institutional Development and Support Office, but as there were no suitable employees for consideration for appointment to the acting IDSO post, the applicant was sourced from a unit outside of this sub-directorate unit. The recommendation made by the District Circuit Manager, Mr. Seoposengwe was considered in this appointment. No policy transgression occurred in the procedural appointment of the applicant.
39. Despite the process of the applicant’s appointment being in line with the GDE Acting Policy, the reason for the withdrawal of the applicant’s appointment was due to him not being suitably qualified for the post. This only became apparent after his discussion with the Chief Director.
The respondent closed its case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
40. The applicant referred a dispute in terms of section 186(2)(a) of the LRA. It is trite law that a commissioner must characterise a dispute objectively and not slavishly defer to the parties’ subjective characterisation. Failure to do so is an irregularity and reviewable.
41. The Court in Wardlaw v Supreme Moulding (Pty) Limited (JA31/04)  ZALAC 2;  6 BLLR 487 (LAC) (10 January 2007) dealt with the question of whether the employees’ characterisation of a dispute should enjoy deference and it rejected that approach. As a result, in Wardlaw, the commissioner was held to have incorrectly assumed jurisdiction over a dispute that should have been dealt with by the Labour Court. The Constitutional Court disposed of this issue in CUSA v Tao Ying Metal Industries and Others (CCT 40/07)  ZACC 15; 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC);  1 BLLR 1 (CC); (2008) 29 ILJ 2461 (CC) (18 September 2008), stating that a commissioner must, as the LRA requires, ‘deal with the substantial merits of the dispute’.
42. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
43. The applicant based his case on the assumption that his appointment to act as an IDSO was carried out procedurally in line with the provisions of the GDE Acting Policy and as a result, should stand. The withdrawal of this appointment was made without any basis because despite the unfounded contentions by the respondent that he was not suitably qualified and that the appointment was inappropriate, the GDE Acting Policy offered a contrary implication.
44. The applicant claims that as the respondent’s actions are without any substantive basis, his reputation and integrity have been tarnished and that he has been professionally embarrassed.
45. The applicant testified that the District Director, Mr. Oupa Koapeng, had initially based the reason for the withdrawal of his appointment on the alleged complaints by some principals within the circuit. During his testimony, Mr. Koapeng testified that no complaints were received by any principals as alleged by the applicant, but that the view of the Chief Director, was that some principals would be affronted by the appointment of the applicant in the acting IDSO post.
46. The applicant testified that the second reason provided by the respondent for the withdrawal of his appointment letter was based on a directive by the Chief Director (CD). This was confirmed by the respondent’s witness. That the directive was issued, is not in dispute. However, no evidence was led relating to the basis of the CD’s directive.
47. One would assume that for an employee to have been identified for appointment in line with the GDE Acting Policy, an inquiry of some sort by the CD or District Director would have been carried out. In the absence of evidence in this regard having been led, and the subsequent withdrawal of the appointment by the respondent, allegedly based on the applicant’s lack of competence, experience, and qualifications, I am led to believe on a balance of probability that the respondent failed to carry this requirement out and exercised its right of withdrawal, in line with section 18 of the GDE Acting Policy, to rectify its mistake.
48. The Chief Director was not called to testify as a witness at these proceedings. The allegations by the applicant that the CD had issued such a directive, were corroborated by the respondent’s witness, and are not in dispute. However, despite claims by the applicant that his appointment was procedurally correct in line with the GDE Acting Policy, no evidence was led by the applicant to prove that he had been correctly identified for the position, based on his competence and qualifications. Therefore, the claim that the appointment was correct and in line with the GDE Acting Policy, remains unproven.
49. The District Circuit Manager, Mr. Seoposengwe, upon whose recommendation the District Director acted, was not called to testify on the suitability, competence, and qualifications of the applicant, which were disputed after the appointment was made.
50. The GDE Acting Policy (at section 12 and 13) lists the conditions required for and under which considerations must be carried out in the appointment of an employee to an acting position. These include (1) that the applicant should have the necessary competency required for the post he/she is expected to occupy. and (2) that an educator appointed to act should possess the relevant qualifications required for the vacant post.
51. The applicant failed to lead evidence that this required inquiry was conducted by the respondent, his competence, experience and qualifications found to be appropriate, but ignored by the respondent. It was submitted that the respondent merely accepted the recommendation by the District Circuit Manager, Mr. Seoposengwe.
52. Despite claims made by the applicant that he was suitably qualified to act in the IDSO post and counterclaims by the respondent that the applicant was not suitably qualified, no real evidence was led by the applicant, whose onus it is to prove, that he was suitably qualified to act in the post.
53. The applicant’s claims that the complaints by principals and the reason for the CD’s directive to withdraw the applicant’s appointment were unfair, have on a balance of probabilities, not succeeded. It follows that the applicant’s reliance upon the provisions of the GDE Acting Policy having been incorrectly followed by the respondent in the withdrawal of his appointment, is required for his claim to succeed.
54. Guided by the evidence led, submissions made and reference to the provisions contained in the GDE Acting Policy by the applicant, I am led to believe that the appointment was not carried out in line with all the requirements of the Policy. The respondent, by exercising its discretion as per section 18 of the Policy, corrected the irregular appointment of the applicant by withdrawing the applicant’s appointment. This was done in writing and reasons were provided.
55. As a result of the respondent having failed to properly consider the requirements above, with only the procedural compliance having been met in terms of the GDE Acting Policy, I am therefore persuaded that considered holistically, the appointment of the applicant was substantively flawed.
56. The respondent successfully rebutted the applicant’s claims that the withdrawal letter and the response from the HOD were without any fair reason, submitting that reasons were provided in writing, being that the applicant was not suitably qualified for the post and that his current job functions did not adequately match those of the duties assigned the position of IDSO. .
57. Section 18 of the GDE Acting Policy provides that an appointment in an acting position is a management prerogative and not an employee’s rights. It further states that it is the prerogative of the delegated authority to terminate an acting appointment at any time, provided that it provides reasons for the termination in writing.
58. I am satisfied that the withdrawal letter from the District Director and the subsequent letter issued by the HOD meet the requirements of section 18. The respondent submitted that the withdrawal of its written offer to the applicant to act in the IDSO post was procedurally correct and reasonably founded. On a balance of probabilities, I am persuaded that this was indeed the case.
59. In the Deputy Director’s withdrawal letter, the applicant was thanked for his willingness to have availed himself and an apology was tendered for the inconvenience caused by the withdrawal. This contradicts the allegations by the applicant that his integrity and reputation were tarnished, and that the respondent has embarrassed him in front of the principals and other stakeholders, so doing, ensuring that the applicant will never be appointed in any promotional post in the department, basically blocking his career path and professional growth.
60. No evidence was led by the applicant to prove that his integrity and reputation had been tarnished by the withdrawal of the respondent’s offer and that by virtue of this withdrawal, any possible growth in respect of his career path had been blocked. It follows that these claims cannot succeed and are only considered to be the applicant’s own assumptions.
61. In considering the totality of the evidence placed before me, I find that the withdrawal of the initial offer made by the respondent was fair and on a balance of probabilities, in my consideration of the evidence presented and the arguments of the parties, I find that the applicant, has failed to discharge the onus of proof, that the respondent conducted itself unfairly by reversing the appointment of the applicant from an acting position.
1. The applicant, Mr. Meshack Sebongile Galekhutle, has failed to discharge the onus of proof, that the respondent, the Education Department of Gauteng, conducted itself unfairly by reversing the appointment of the applicant from an acting position.
2. As a result of the aforesaid, the applicant’s claim is hereby dismissed.
ELRC Dispute Resolution Panellist