Case Number: PSES1038-19/20EC
Commissioner: Henk Jacobs
Date of Ruling: 31 March 2021
In the matter between
Department of Education – Eastern Cape
Mr S Zibi Attorneys
Telephone: 063 017 4998
Respondent’s address: Mr T Tsheko
Details of hearing and representation
1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held Virtually on 26 February 2021.
2 The applicant, Ms Mileka Fihla was represented by Mr. S. Zibi, an attorney from Sithembele Zibi Attorneys Inc. The Education Department - Eastern Cape, was represented by Mr T. Tseko, a Labour Relations Officer employed by the Respondent.
3 The hearing was held in English and was digitally and manually recorded.
4 During the arbitration proceedings, the Respondent indicated that they wish to present an offer to the Applicant in an attempt to resolve the dispute informally and which was to offer the Applicant a post as Principal at a school other than the school she was removed from. The Applicant rejected the offer and indicated that the matter should be arbitrated.
5 During the proceedings, the Representative for the Respondent went offline and after numerous successful attempts to get hold of him, I decided to issue a directive, inviting parties to file a statement of case in an attempt not to delay the proceedings any further.
6 The Applicant filed a statement of case, however, the Respondent failed to do so. Based on the submissions filed, I decided to proceed in default as it appeared that the Respondent willingly do not wish to participate in the arbitration proceedings.
Issue to be decided
4. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by removing the Applicant from her post as Principal at Nonceba Senior Secondary School.
Background to the matter
5. The Applicant referred an alleged unfair labour practice dispute pertaining to a demotion.
6. The Applicant was employed as a School Principal on Post Level 2, at Nonceba Senior Secondary School since April 2014.
7. On 17 January 2019, she received a letter/memo through her Circuit Manager which advised her to report at Bundy Park Circuit Management Offices on a temporary basis, until she “advice the HOD and District Director Buffalo City Municipality otherwise”.
8. The Applicant sought to be placed in her post as Principal, Post Lever 2 at Nonceba Senior Secondary School.
Survey of submissions
9. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.
10. The Applicant submitted that she was employed as a Principal on a Post Level 2, at Nonceba Senior Secondary School, and was removed from her post on 17 January 2019 after she received a letter from her Circuit Manager.
11. The letter/memo reads as follows:
“Subject: NOTICE TO STRENGTHEN MEDIATION
This is to inform you that regarding an initiative mediation by the Eastern Cape Superintendent General to promote effective teaching and learning of Nonceba Senior Secondary School EMIS no:20020617, you will be as from 17 January 2019 reporting at Bundy Park Circuit Management Office 101 temporarily until you advise the Head of Department and District Director Buffalo City Metro otherwise.”
12. The Applicant further submitted that the letter/memo is vague to the extent that it is not clear to what was meant by it. The Education Department has not taken any action of mediation, nor did they charge that Applicant with any misconduct. The temporary arrangement now exceeded two years.
13. After she realised that she has been complying with the letter and no action was taken, she lodged a grievance on 11 November 2019 and received no response from the Respondent. She sent a reminder on 28 February 2020 and no formal response was received to date.
14. The Applicant submitted that she received a verbal response indicating that she did not attend a meeting for displaced educators. She further submitted that she was not displaced but was removed from her post. During displacement, the Education Department merely intervened to resolves the impasse by offering placement to educators elsewhere and provide educators with three alternatives to select from.
15. The Applicant also submitted that she was called to the office of the Superintendent General on 14 January 2019 and was told that two schools, Nompendulo and Nonceba would merge. However, she was removed from her school without any reason. The Staff Movement Processes of the Education Department only makes provision for transfers and placements in terms of the organisational structure of the Education Department.
16. In terms of a merger, Section 12A of the South African Schools Act 84 of 1996 provides the necessary guidelines to be followed as follows:
a) Given written notice to the schools of the intention to merge them.
b) Publication of a notice given and reasons for the proposed merger.
c) Giving Governing Bodies of the schools in question and interested persons and opportunity to make presentations.
d) Consider the presentations.
e) Be satisfied that the employers of staff at the public schools have complied with their obligations.
17. The Applicant submitted that the Respondent did not comply with the provisions of a merger, hence there could not have been a merger and that her removal from the school was unfair.
18. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
19. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any 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 provisions of benefits to an employee”.
20. The Applicant challenged her removal from her post as Principal and that she was being demoted as a result. It is well established through jurisprudence that a demotion occurs when a person loses rank, status, or benefits which they are entitled to.
21. In this instance, the Applicant was a Principal at Nonceba Senior Secondary School and was asked on 17 January 2019 to report to Bundy Park Circuit Management Office. It appears that the Applicant had to report for duty, but was not given any tasks, duties, or any responsibilities during this time.
22. It can therefore not be argued that the Applicant was not demoted, as she lost her status as a Principal and her responsibilities that comes with the post.
23. It is further well established in our law through jurisprudence that a demotion may be fair if it is aimed at avoiding retrenchment or dismissal for incapacity, or if the employee is demoted as a disciplinary penalty after a fair process was followed. The Applicant in her submissions covered all possible probabilities regarding her demotion.
24. It needs to be stated that the letter/memo issued to the Applicant is vague to the extent that it is embarrassing. One would expect that a Department, such as the Department of Education Eastern Cape would clarify the letter by including more details on the issue or process and the future outcome of the arrangement. That being said, I will move on and deal with the probabilities as explained by the Applicant in terms of possible reasons for the Respondent’s action.
25. The Applicant dealt with the issue of displacement and explained when and how the process unfolds, as she knows it, and which did not occur in this instance. She was not aware of any complaints against her, nor any allegations of alleged misconduct and therefore, there was no reason for her to be displaced.
26. The letter issued to the Applicant does not deal with the issue of displacement and no further submissions were placed before me regarding this being the Respondent’s cause of action. On that basis, it would exclude displacement as a reason for the Respondent’s action to remove the Applicant as Principal.
27. The Applicant made further reference to a merger that was used as an excuse by the Respondent to justify its action. This was also mentioned by the Respondent's representative during the proceedings before he disappeared.
28. The Applicant referred to Section 12A of the South African Schools Act 84 of 1996 (the Schools Act) which reads as follows:
“12A. Merger of public schools.—(1) Subject to subsection (2), the Member of the Executive Council may, by notice in the Provincial Gazette, merge two or more public schools into a single school.
(2) Before merging two or more public schools the Member of the Executive Council must—
(a) give written notice to the schools in question of the intention to merge them;
(b) publish a notice giving the reasons for the proposed merger in one or more newspapers circulating in the area where the schools in question are situated;
(c) give the governing bodies of the schools in question and any other interested persons an opportunity to make representations within a period of not less than 90 days from the date of the notice referred to in paragraph (b);
(d) consider such representations; and
(e) be satisfied that the employers of staff at the public schools have complied with their obligations in terms of the applicable labour law.”
29. The Applicant submitted that none of the above provisions were complied with, hence, she concluded that no merger took place. In the absence of the contrary, I accept the Applicant’s version. If the Respondent indeed merged the respective schools, there should have been interaction/consultation with the Staff, including the Applicant to solicit an agreement to transfer her to another school. There are no submissions before me that the Respondent did indeed comply with the provisions as stated above.
30. In light of the above, I find it appropriate to make the following award.
31. The Applicant, Ms. Mileka Fihla successfully established that the Respondent, the Education Department -Eastern Cape committed an unfair labour practice by unfairly demoting the Applicant in terms of section 186)2) of the LRA when she was removed from her post as Principal.
32. The Respondent, the Education Department- Eastern Cape is ordered to reinstate the Applicant, Ms Mileka Fihla to her post as Principal at Nonceba Senior Secondary School with effect from 05 April 2021.
Commissioner: Henk Jacobs