Commissioner: D Smith
Case No.: PSES130-21/22NW Date of Award: 20 July 2021
In the ARBITRATION between:
DEPARTMENT OF EDUCATION NORTH WEST
Applicant’s representative: In Person
Respondent’s representative: No appearance
DETAILS OF HEARING AND REPRESENTATION:
1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 186(1)(a) of the Labour Relations Act, No. 66 of 1995 (“LRA”). The matter was scheduled for Arbitration on 13 July 2021 at the Department of Education and Sport North West, 30 Van Velden Road, Brits.
2. The Applicant, Ms Ntetlang Mokgatle (“Mokgatle”) represented herself. The Respondent was not present.
3. The process was digitally recorded, and I took handwritten notes.
4. Mokgatle submitted a bundle of documents marked “A”.
ISSUE TO BE DECIDED:
5. The interpretation or application, in terms of Section 24(5) of the LRA, of Collective Agreement 7 of 2007 (“Collective Agreement”), relating to the placement of employees returning from secondment.
6. If I find in the positive, I must decide upon an appropriate remedy.
7. Mokgatle was initially employed at a school. She was seconded to the trade union NAPTOSA as a full-time shop steward during 2013 and 2014, a period of two years. On 14 March 2015 she was advised by the acting area manager, Ms. C H Ramagofu (“Ramagofu”), that an equivalent post to that she occupied prior to secondment was available as an office-based educator in the NSNP unit of the Letlhabile Area Office, at the same rate of SL8 and as a transfer with translation, E9. On 24 March 2015 Ramagofu gave the district director, Mr. M V Seshibe (“Seshibe”) an update on two seconded teachers, including Mokgatle:
“There is a post equivalent (SL8) in the NSNP unit. The offer is given to the teacher. Still awaiting a response”.
8. On 12 May 2015 Mokgatle accepted the offer (E10). On 29 May 2015 Ramagofu sent a memo to the district director, Seshibe, recommending the superintendent general, Ms. S Semaswe (“Semaswe”) approve the transfer and translation, E1. On 9 June 2015, the chief-director- district coordination declined the recommendation as it constituted a promotion, E2. On 19 June 2015, the chief director – HRM&D also declined to recommend as an employee could not be translated to a higher rank even if the salary remained the same, E2.
9. On 29 August 2017, the head of department for education sport and development approved Mokgatle’s secondment as a senior education specialist (IQMS) in the sub-directorate of Institutional Management Governance and Support at the Brits sub-district, C5.
10. On 14 October 2020, Mokgatle addressed a letter to the superintendent general, Semaswe, regarding ‘concern over translation in IQMS, Madibeng Sub-District’, C3. As a result, a Mr. Phango from the labour department came to see her on 18 November 2020. She received no response and, on 18 March 2021, escalated the matter to the MEC, Ms. Wendy Matsemela, C2.
11. On 26 April 2021, the acting district director, Ms. M J Paledi, advised Mokgatle that her secondment was being discontinued and that she would return to her school-based post on 1 June 2021, C. It stated:
“The Superintendent General of the Department of Education in North West received a complaint regarding translation of officials who were to seconded to posts within the administration after their secondments to unions in terms of the ELRC Collective Agreement had ceased.
The Superintendent General has decided to return you to your school based post. This is terms of item F.5.2.2 of PAM and the collective agreement cited above.
12. On 10 May 2021 Mokgatle sent a letter of dispute to a Mr. J T Mogatusi stating that the superintendent general could not decide unilaterally to return her to her school-based position, C1.
13. Mokgatle sought to be permanently confirmed in the office-based role and remunerated at PL3.
SURVEY OF EVIDENCE AND ARGUMENT:
14. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.
15. Mokgatle confirmed the information above and introduced the relevant documents into evidence. She testified under oath that it was not possible to return to the school because of a previous sexual harassment incident that the Respondent was aware of.
16. Not present.
ANALYSIS OF EVIDENCE AND ARGUMENT:
17. The Collective Agreement states at 4.2:
“A SS who returns to his or her educator duties must be assigned to the post he or she left prior to his appointment. If this is impossible and/or impractical or not in the best interests of education, then the provincial department must offer the SS a suitable alternative, commensurate with the post that the SS held prior to his or her secondment (sic)”, D1.
18. Clearly this applied to Mokgatle at the end of her two-year secondment to NAPTOSA. On 14 March 2015, the Respondent‘s acting area manager, Ramagofu, elected not to return Mokgatle to her school-based position and identified an equivalent in the NSNP unit at SL8. This was offered to Mokgatle, who accepted it. Ramagofu quoted the Employment of Educators Act 7 of 1998, Chapter G, Section 4: Secondment, sub-section 4.4(e)(ii) … “in case of the period of secondment of more than two years, to an equivalent post/position to that held prior to the secondment, which is acceptable to the employee, and which shall be reasonable and fair”, E9.
19. Ramagofu identified the post as being equivaleny. She made the offer which was accepted. There is no evidence that the offer was ever retracted.
20. The Respondent was not there to explain why a post formally offered and accepted could subsequently be declined and the incumbent allowed to continue in it. She could no longer be considered to be seconded. The Collective Agreement had been complied with, and in the absence of any evidence that there was an intervening event, that is how is how matters should stand.
21. It is not for me to determine whether the post Ramagofu considered to be equivalent was or not. If the Respondent was there to dispute, I may have come to a different conclusion. They were not, and Mokgatle’s evidence stands.
22. Clause 4.2 of Collective Agreement applied to Mokgatle. At the end of her secondment to NAPTOSA an equivalent post was identified by Ramagofu and offered to Mokgatle, who accepted it. The Respondent cannot, six years later, seek to return Mokgatle to her school-based post by relying on these provisions.
23. I am unable to deal with the translation to PL3.
24. The provisions of the Collective Agreement apply to the Applicant ,Ntetlang Mokgatle.
25. The Respondent, Education Department of North West, is ordered to place the Applicant in the position it identified in 2015 in the NSNP Unit with effect from 1 August 2021.
D H Smith
20 July 2021