ELRC644-20/21 EC

Award  Date:

10 May 2021

Case No. ELRC644-20/21 EC

In the matter between

SADTU obo AM Mrali Applicant

and

Department of Education: Eastern Cape Respondent


____________________________________________________________

ARBITRATOR: YOLISA NDZUTA

HEARD: 31 MARCH 2021

DATE OF AWARD: 10 MAY 2021


SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - 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


SUMMARY: Whether the Respondent committed an unfair labour practice by demoting the Applicant. If so, whether such a demotion is far.



ARBITRATION AWARD



PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me over zoom on the 31st of March 2021. During these proceedings, the Applicant, Mr Mrali was represented by Mr T Rataza of SADTU while the Respondent, Department of Education: Eastern Cape was represented by Mr G Jacobs.

2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.

3. The parties provided a pre-arbitration minute which addressed all the necessary issues. The representatives further filed Heads of Arguments on the 9th of April 2021.

THE ISSUE IN DISPUTE

4 I am required to determine whether the Respondent perpetrated an unfair labour practice relating to demotion of the Applicant in that whether same was substantively and procedurally fair.

THE BACKGROUND TO THE DISPUTE

5. In these proceedings the Applicant referred an unfair labour practice relating to the demotion.

6. The Applicant was charged for misconduct in terms of section 18(1) (a) and section 18(1)(f) of the Employment of Educators Act 76 of 1998 (as amended) relating to an incident that occurred during the observation and attendance of the National Senior Certificate (NSC) Examinations of 2018 in Amathole West District.

7. The Applicant at the time of the incident was fulfilling the role of a Chief Education Specialist hereinafter referred to as a CES.

8. The Applicant raised this application on the basis that the sanction of demotion which was a result of an appeal to the disciplinary proceedings constituted an unfair labour practice and challenged both substantive and procedural fairness.

9. The Respondent raised one critical defense in opposition to the above being that the Applicant was contractually liable for the incident that occurred during the observation and attendance of the NSC Examinations of 2018 in Amathole West District in that the Applicant was the most senior person at the time and as such was liable for the actions of the subordinates and had a contractual obligation.

10. The Respondent argued that the sanction imposed both during the disciplinary hearing and at the appeal was befitting due to a breach of contractual obligation.

SURVEY OF EVIDENCE AND ARGUMENT

11. The Applicant (Mr Mrali) was called to testify under oath and a further witness, one Mr J.J Nkosi, was called too. A summary of their testimony is outlined herein below.

12. During his testimony of Mr Mrali explained his position and the requisite responsibilities thereto. He further explained the structure of his level and gave a description of his subordinates with their respective reporting in terms of their job description juxtaposed to the organogram.

13. Mr Mrali further testified that upon his appointment there was a specific person who was fulfilling the role of Head of Examinations and was granted the detailed duties.

14. More notably is that Mr Mrali testified that the position of a Head of Examinations was obliged to only report to and be liable to the Provincial Executive and not directly to himself as a Chief Examination Specialist.

15. Mr Mrali also testified that during his tenure as Chief Education Specialist he noted and challenged the issue of incubation centres that were used as examination centres to that he emphasized that he raised same issue with his superiors who allegedly ignored same. He referred to the above as illegal centres.

16. Mr Mrali testified that one of the consequences of above illegal centres is the confusion of scripts delivery.

17. The second witness for the Applicant, one Mr J.J Nkosi, testified as to his position at the Department of Education.

18. Mr Nkosi testified that during the 2018 NSC examinations he was considered as a replacement of the Head of Examinations due to the temporary absence of the then Head of Examinations. (Mr Ngondwane). Mr Nkosi advised during his testimony that his appointment was not ratified as such by virtue of no letter of appointment being issued thus he did not occupy the vacancy of the Head of Examinations during the absence of Mr Ngodwane.

19. Mr Jacobs (the representative for the Respondent) challenged the above versions and crossed examined both witnesses by enquiring who at the time of the NSC was the most senior person responsible at Amathole West. He further placed on record that in the absence of Mr Ngodwane, Mr Mrali was the official expected to fulfill the role and duties of the Head of Examination.

20. Further to the above testimonies, the parties relied on the evidence bundle marked ‘A’ which enclosed various documents.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

18. The first premise to work from is the fact that the Applicant has referred this matter before this Council seeking to challenge the demotion as a sanction therefore my tasks is to consider whether an unfair labour practice was propagated against the Applicant when he was demoted.

19. In considering the above, my task is to consider both substantive and procedural fairness of the alleged unfair labour practice.

20. The parties agreed to submit written arguments to substantiate their respective case. I shall address said arguments and the averments made during the arbitration herein under.

21. I considered same and the arguments made during the arbitration proceedings.

22. My analysis of Mr Mrali as a witness is that he understood his role fully as such he explained his vacancy and the applicable rules thereto. When cross-examined, Mr Mrali stood firm on his version as such Mr Jacobs ended up introducing an alternative defence of ‘partial responsibility’ to which Mr Mrali asked for further clarity.

23. Furthermore, Mr Mrali whilst being lead by his representative Mr Rataza placed as testimony that although he took issue and challenged the appeal that resulted in his demotion. He testified that he was not provided with the requisite reasons nor was the fair procedures undertaken in instituting the process of appeal that resulted in his demotion.

24. Under cross-examinitaion though the Respondent challenged the above, the Respondent failed to adduce evidence that supported whether there was a fair reason for the demotion or whether the requisite procedure had been adopted in deciding and imposing the sanction of demotion.

25. My analysis of Mr Nkosi as a witness is that he too understood his role in the incident pertaining to the 2018 NSC Examinations. More importantly, Mr Nkosi placed on record that the employer had planned on introducing him as a replacement to Mr Ngodwane however due to procedural failure, the Respondent failed to do so.

26. In Solidarity obo Kern v Mudau and Others (JR 987/05) [2007] ZALC 131; [2007] 6 BLLR 566 (LC) (19 January 2007) the courts considered what constituted demotion and whether same was reasonable. The Courts emphasised that demotion can only be considered as a sanction as an alternative to dismissal. Also if we reflect on Van Niekerk v Medicross Health Care Group (Pty) Ltd [1998] 8 BALR 1038 (CCMA), wherein the CCMA found that, since demotion is a disciplinary action, ‘consultation and counselling should take place before the demotion is implemented. In the absence of a fair reason and fair procedure, the demotion was held to amount to an unfair unilateral alteration of terms and conditions of employment.’

27. The above leaves a question of, when the Respondent instituted appeal proceedings with the intention of demoting the Applicant, was there any consultation? Unfortunately neither the arguments nor the evidence had answered this.

28. The Applicant herein not only challenged the charges that he was found guilty of, he also challenged the procedure undertaken to appeal and subsequently demote him. The charges and the outcome of the first hearing are not before me, what is before me is the demotion and I intend to limit myself to such. The Respondent failed to successfully defend the above challenges.

29. The respondent placed an argument of ‘partial responsibility’ which can be inferred as an admission of inconsistency of their own disciplinary procedures to the challenge of inconsistent disciplinary action however considering that the latter was not engaged extensively, I will not delve further into it. More importantly my task only pertains to the sanction of demotion as an unfair labour practice.

30. This matter traverses several legal concepts in its application, one being the authority to act and the process undertaken when imposing a sanction. It is common knowledge that the employer in this matter, which is the true authority to encumber responsibilities appealed after the Applicant was given a lesser sanction of two months suspension. It is more apparent from the evidence and the arguments that the sanction of demotion was not imposed upon instituting the appeal.

31. Another important legal concept this application traverses is one of fairness of sanction. The Applicant was initially given a sanction that was two months suspension without pay which was changed to demotion after the appeal lodged by the Superintendent General of the Department of Education- Eastern Cape (the late Mr Kojana). It is trite that demotion as a sanction is only considered when extenuating circumstances satisfy that a party ought not be dismissed even if the outcome designated by one’s disciplinary code of conduct recommends dismissal. Unfortunately, the Respondent did not argue or adduce evidence to support that dismissal was considered or recommended by the code of conduct.

32. In cases of unfair labour practice, the onus of proof lies on the Applicant. The Applicant needs to prove on a balance of probabilities that the employer committed an unfair labour practice more specifically herein that the unfair labour practice related to the disciplinary proceedings and subsequent demotion. In this case the Applicant has discharged his duty satisfactorily.

33. Demotion is a change of employee’s terms and conditions of employment which results in a material reduction of the employee’s remuneration, responsibility and or status, and therefore changes the contractual arrangement that the employee has with the employer. Employers are guided by the various case law on the specific requirements to be considered when imposing a sanction of demotion, one of which I have reflected on hereinabove.

34. In the premises I make the following award.




AWARD

35. The Applicant, AM Mrali, has established that an unfair labour practice was perpetrated against him by the Respondent relating to disciplinary action and the demotion.

36. The sanction of demotion is set aside. The outcome of the first hearing which was not before me is reinstated.






Yolisa Ndzuta
Panelist: ELRC