Panelist : Alta Reynolds
Case Number : ELRC238-21/22MP
Date of Award : 13 December 2021
In the ARBITRATION between:
Lusenga, Dudu Agnes
Department of Education – Mpumalanga
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down by the Education Labour Relations Council (ELRC) as an alleged unilateral change to terms and conditions of employment referred in terms of section 64(1)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA) for arbitration to be conducted via Zoom video conferencing commencing on 15 October 2021. Since this category of dispute is not subject to arbitration in terms of the LRA, it was established at the first sitting that there was an error in the referral and that the dispute in fact related to an alleged unfair labour practice relating to demotion. The parties and myself agreed that the nature of the dispute be corrected to that of an alleged unfair labour practice referred in terms of section 186 (2)(a) of the LRA. The arbitration was thereafter concluded virtually over three sittings on 15 October 2021, 17 November 2021 and 30 November 2021.
2. Present at all the sittings for the referring employee (the Applicant) were Mr Andre Brandmuller (Attorney with Brandmullers Incorporated as Representative) and Ms Dugu Agnes Lusenga (the Applicant). Present for the employer the Department of Education – Mpumalanga (the Respondent) was Mr Sifiso Khoza (Labour Practitioner as Representative).
3. The proceedings were conducted in English, with digital and handwritten recordings made.
4. The parties did not require an explanation of the arbitration proceedings.
5. No preliminary issues required to be addressed. The parties attempted to resolve the dispute by consent on several occasions during the arbitration proceedings, which remained unsuccessful.
6. Written closing arguments were requested and agreed to at the last sitting of the arbitration. It was agreed by both parties that they would submit their closing arguments to the ELRC’s Case Management Officer, copied to one another and myself via e-mail not later than 1 December 2021, which were duly received on the due date.
ISSUE TO BE DECIDED
7. The purpose of this arbitration is to determine whether the Respondent had committed an unfair labour practice relating to demotion in terms of section 186 (2)(a) of the LRA. The relief sought by the Applicant was to be reinstated in the post that she had occupied as Principal of Mkhulu Combined School in Middelburg, Mpumalanga. It was confirmed that the onus of proof would be on the Applicant in this matter.
BACKGROUND TO THE DISPUTE
The following facts were established as common cause
8. The Applicant joined the Respondent in 1994 as an Educator and was appointed as Principal at Mkhulu Combined (Primary and Secondary) School in April 2018, with Persal number 80833292. The Applicant currently earns a gross salary of R49724.00 per month at the level of Principal. There are currently a total of 34 permanent and temporary Educators employed at the school, which include the School Management Team (SMT) consisting of Heads of Department and Deputy Principals. There are presently approximately 1130 learners at the school.
9. The issue originated in December 2019 when the School Governing Body (SGB) requested the Respondent to r-eadvertise the vacant Head of Department (HOD) and Deputy Principal posts at Mkhulu Combined School and for the recruitment and selection processes for these two posts to be repeated since no suitable candidates had been found. The Applicant as Principal was a member of the SGB at the time. The Respondent’s Deputy Director, through the District Director, Mr D M Maja, in a letter dated 12 December 2019 rejected this request of the SGB and stated that the Respondent would take over the process of shortlisting and interviews.
10. Certain Educators were unhappy because the SGB had asked that the recruitment process be repeated from the shortlisting and interviewing stage. The SGB requested the Respondent to mediate between the SGB and the dissatisfied Educators. This unhappiness grew and was not dealt with, with a letter sent from the SGB to the District Director on 14 December 2020 after a meeting was held with parents on 13 December 2020 requesting the redeployment of eight unruly Educators from the school and that the contracts of five temporary Educators who were not willing to work with the Principal should not be renewed after their expiry on 31 December 2020. Present at the meeting of 13 December 2020 were five SGB members and 41 parents. In the letter of 14 December 2020 the SGB also referred to a letter sent to the Circuit Manager, Mr L C Mabusela, dated 18 August 2020 signed by these 13 Educators containing allegations against the Principal (the Applicant), which included those of alleged financial mismanagement, and demands that she be removed from her post.
11. The Chairperson of the SGB had submitted a report on 8 December 2020 to the District Director on the investigation into the alleged mismanagement of funds by the Applicant, which confirmed that the Applicant as Principal had not committed any financial misconduct. A notice to attend a disciplinary hearing on 29 June 2021 was issued to the Applicant on 12 November 2020, for which she signed receipt on 17 June 2021 to address the following charges of misconduct in terms of the Employment of Educators Act 76 of 1998 as amended (the Act):
You committed misconduct in terms of Section 18(1)(n) of the Act in that you, without prior permission of the employer, accepted or demanded in respect of the carrying out of or the failure to carry out your duties, any commission, fee, pecuniary or other reward to which you were not entitled by virtue of your office, or you failed to report to the employer the offer of any such commission, fee or reward, by demanding and accepting an amount of R500 from Mr. Mhloli Z. who is an educator at your school on the 23rd December 2019. This amount you claimed it was for “cold-drink”.
You committed misconduct in terms of Section 18(1)(g) of the Act in that you misused your position at Mkhulu Combined to promote or to prejudice the interests of any person, by requesting and accepting an amount of R500 from Ms. Mahlangu P.B., an amount which you stated that will be paid to a “departmental official” for the performance of his duties. That money was transferred to your cellphone number 0825141208 in the form of a voucher on the 29th May 2020.
You committed misconduct in terms of Section 18(1)(i) of the Act in that you failed to carry out a lawful order or routine instruction without just or reasonable cause in that on or about the 23rd October 2020, you failed to heed the Circuit Manager’s instruction when you refused to give other teachers marking forms to either accept or reject the offers, even after he called you twice to issue those forms.
You committed misconduct in terms of Section 18(1)(a) of the Employment of Educators Act 76 of 1998 as amended, by failing to comply with or contravening Section 16A(i) of the South African School Act 84 of 1996 in that you failed to take all reasonable steps to prevent any financial maladministration or mismanagement by any staff member or by the governing body of the school in that in the academic year of 2020, you allowed the SGB to purchase a cellphone amounting to R12 198,00 which was not budgeted for.
12. The disciplinary hearing of 29 June 2021 did not take place since the Applicant’s Representative Mr Brandmuller had contracted COVID-19 and was placed in isolation. The Circuit Manager sent a letter to the SGB and the Applicant on 17 December 2020 informing that the request for redeployment of the Educators and the non-renewal of the temporary Educators’ contracts will not be considered since the outcome of the investigation was still to be presented to the Stakeholders in the school. The SGB instructed an Attorney, Brandmullers Incorporated, to assist them in this matter. Mr Brandmuller wrote to the Respondent’s Circuit Manager on behalf of the Applicant and the SGB on 11 January 2021 requesting the Respondent to reconsider the decision relating to the redeployment and non-renewal of the contacts of the unruly Educators, to which no response was received. Mr Brandmuller wrote again to the Circuit Manager on 25 January 2021 requesting a response to the letter of 11 January 2021. The District Director directed a letter to the SGB and parents of Mkhulu Combined School, and not to Mr Brandmuller, on 27 January 2021, again rejecting the proposal that the troublemakers be redeployed or that their temporary contracts not be renewed.
13. Several other events occurred after that, such as that the Principal and others received death threats. The SGB addressed this issue of the death threats received by the Principal (the Applicant) in writing with the Chief Director of the Respondent on 15 March 2021. This was followed by a request from the SGB to the Head of Department of the Respondent on 17 March 2021 to urgently intervene due to a further death threat received against the Applicant, for which a case was opened with the SA Police Service (SAPS).
14. On 1 April 2021 the Applicant reported via e-mail that the school was locked and Educators were intimidating other Educators and support staff, with access requested to allow them onto the school premises. The Applicant provided a detailed situational report to the Respondent in March 2021, which included reporting incidents of picketing, the use of bolt cutters to access the school premises, and striking by unruly elements, who were also preventing people to access the school. The violence that occurred at the school was reported externally in the local press early April 2021. These events resulted in the Respondent advising the Applicant in a letter dated 13 April 2021 that she is removed from the school with effect from 12 April 2021. This was followed by two letters to the Applicant on 15 and 16 April 2021 in which she was requested to return the school’s property to the Respondent, which she complied with. Mr Brandmuller on 20 April 2021 wrote to the Respondent’s District Office and Circuit Manager requesting written reasons for the removal of the Applicant from her position as Principal, as well as other issues. In this correspondence the Respondent was also informed that in the Applicant’s view the Respondent was committing an unfair labour practice.
15. Disciplinary cases are pending against a number of the Educators who formed part of the anti-Principal group and whom the Applicant had complained about, as confirmed in a report from the District Director to the Acting Head : Education of the Respondent dated 5 May 2021. An Acting Principal currently performs the Applicant’s duties at the school, which has not been filled permanently. Since her removal from the Principal post the Applicant has been fully remunerated at the school’s paypoint.
The following facts were in dispute:
16. Whether the report of the SGB Chairperson dated 8 February 2020 dealt with the issues of alleged misconduct that the Applicant was charged for on 12 November 2020.
17. Whether the Applicant only received the letter from the Respondent dated 13 April 2021 on 14 June 2021 in which she was informed of her transfer to an alternative post.
18. Whether the District Director’s letter of 4 May 2021 addressed to Mr Brandmuller was ever received by the Applicant’s Legal Representative, as there was no proof provided that it was sent or received by him.
19. Whether the Respondent had committed an unfair labour practice by removing the Applicant from her post as Principal at Mkhulu Combined School, and whether the Respondent had unfairly demoted the Applicant in doing so.
SURVEY OF EVIDENCE AND ARGUMENT
20. The parties elected not to call any witnesses to present oral evidence, despite being cautioned in this regard. Both parties at the conclusion of the arbitration requested that the matter be determined on the facts established as common cause, as well as the admitted documents and their heads of argument (written closing arguments).
21. Documents were handed in by both parties and admitted as evidence, with the exception of the two disputed documents, being when the Respondent’s letter of 13 April 2021 was received by the Applicant, and the proof that the Respondent’s letter of 4 May 2021 was indeed sent to and received by the Applicant’s Legal Representative.
22. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant.
THE APPLICANT’S EVIDENCE
23. The Applicant party’s case was that the dispute related to the unlawful removal of the Applicant from the post of Principal at Mkhulu Combined School in Middelburg. The dispute arose when the Applicant was informed on 12 April 2021 that she would be transferred to an alternative post for her own safety, with not many issues believed to be in dispute. The history of the issue was that the Respondent removed the Applicant from her position because other Educators, who were members of the union SADTU, had protested for a period of time against the Applicant and had filed petitions in this regard. These Educators had been subjected to disciplinary action, which was still ongoing. The Educators were left to govern the school and demanded that the Respondent remove the Principal and give her something else to do. The relief that the Applicant sought was for her to be reinstated in her previous position, for the Respondent to provide her with a safe working environment and to take disciplinary action against the persons who wanted to remove the Applicant from her position as Principal. The Applicant has not been appointed yet in another post and was still at home since April 2021 on full remuneration.
THE RESPONDENTS’ EVIDENCE
24. The Respondent’s case was that they would not call any witnesses and would be relying on their bundle of documents to explain reasons for the Applicant’s removal from her position. The Respondent was alerted to the implications of only relying on documents since these could not be subjected to cross-examination.
25. Written closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here in full, but have been referred to and taken into account in arriving at the award.
ANALYSIS OF EVIDENCE AND ARGUMENT
26. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the Respondent, the Department of Education – Mpumalanga, had committed an unfair labour practice relating to demotion by removing the Applicant, Ms Dudu Agnes Lusenga, from the position of Principal at Mkhulu Combined School in Mpumalanga, as well as to decide on the appropriate relief if unfairness is found.
27. The relevant provisions in terms of section 186 (2)(a) of the LRA are the following:
(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to 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;
28. I am also reminded in determining this matter of the following facts which were placed in dispute, which I will consider as appropriate and with respect to their relevance to the key issue in dispute:
• Whether the report of the SGB Chairperson dated 8 February 2020 dealt with the issues of alleged misconduct that the Applicant was charged for on 12 November 2020.
• Whether the Applicant only received the letter from the Respondent dated 13 April 2021 on 14 June 2021 in which she was informed of her transfer to an alternative post.
• Whether the District Director’s letter of 4 May 2021 addressed to Mr Brandmuller was ever received by the Applicant’s Legal Representative, as there was no proof provided that it was sent or received by him.
• Whether the Respondent had committed an unfair labour practice by removing the Applicant from her post as Principal at Mkhulu Combined School, and whether the Respondent had unfairly demoted the Applicant in doing so.
29. Both parties had requested, and agreed, that no oral evidence will be led in the proceedings, despite being cautioned in this regard, and that the facts established as common cause, the admitted documents and their heads of argument (closing arguments) may be relied on to determine the matter.
The parties’ versions and arguments are provided below, with the facts agreed as common cause not repeated again, unless necessary.
30. The Applicant party’s version and argument is summarised as follows: The dispute arose on 12/13 April 2021 when the Respondent decided to remove the Applicant from her position as Principal, which constituted an unfair labour practice, in particular that she was unfairly demoted and/or suspended and/or victimised by the Respondent. The sequence of events commencing from December 2019 that led to the Applicant’s removal as Principal was referred to as detailed in the facts established as common cause, which are not repeated here, save to highlight certain additional comments and submissions made in this regard, such as that in the letter that the 13 Educators addressed to the Respondent on 18 August 2020 they had alleged that the Applicant created a toxic working environment, that they had resolved not to recognise the Applicant as their Principal, that they would not engage her on any official matters or co-operate with her and demanded the withdrawal or removal of the Applicant from the school. Further, that the Respondent’s letter of 17 December 2020 in which the request for redeployment of the unruly Educators and non-renewal of the contracts of the temporary Educators was denied, confirmed the lack of support given to the Applicant by the Respondent and that the Respondent already at that early stage irrationally elected to side with the unruly Educators against the SGB, the parents and the Applicant. The fact that the Respondent did not respond to the letter of 11 January 2021 that Brandmullers Incorporated sent to the Respondent requesting that it reconsider its position relating to the unruly Educators, was also regarded as an election by the Respondent in favour of the unruly Educators in the school against the Applicant.
31. In the Respondent’s letter of 27 January 2021 which rejected the request from the SGB that the unruly Educators be redeployed, the Respondent had referred to the provisions of Collective Agreement Number 4 of 2016 relating to the transfer of serving Educators in terms of operational requirements (the Collective Agreement). The Respondent was therefore aware of the process that needed to be followed if it wished to transfer or redeploy Educators, but had also not followed this process in its decision making surrounding the Applicant.
32. In the Applicant’s correspondence of 17 March 2021 after she had received the death threats the Respondent’s Head of Department was requested to immediately intervene due to the behaviour of the Educators becoming dangerous and life threatening, and to discipline the unruly Educators who were guilty of misconduct, in which letter it was also pointed out that the Respondent had an obligation to provide and maintain a safe working environment for all its employees. In the Applicant’s e-mail to the Respondent of 1 April 2021when she had to obtain the assistance of the SAPS to get access to the school property, it was mentioned specifically that she was confronted with and insulted by people pretending to be parents and learners, whereafter unruly Educators joined in and encouraged learners to act in a similar fashion, with the SAPS having to assist to safely remove learners and Educators who were being intimidated by other learners, unruly Educators and support staff from the school.
33. The Respondent’s silence from 17 March 2021 until it met with the Applicant on 12 April 2021 to advise that she is to be removed from the school and to be transferred to an alternative post confirmed that the Respondent had elected to throw the Applicant to the wolves, being the unruly Educators, without granting her any assistance. This proposed transfer did not comply with the provisions of Collective Agreement 4 of 2016, which in their view constituted nothing less than a demotion in status of the Applicant. The proposed transfer also did not comply with the provisions of section 6 of the Employment of Educators Act 76 of 1998 as amended (the EEA) which provided that any appointment, promotion or transfer to any post of a public school may only be made on the recommendation of the SGB and with the consent of the Educator, which was not the case and was therefore unlawful. The Applicant was also not suspended from duty pending an investigation into serious misconduct. It was also opportunistic and misleading of the Respondent to imply that the presence of the Principal was an obstacle to learning and teaching in a stable environment, when the facts confirmed the contrary.
34. No reply had yet been received from the Respondent to the request of 20 April 2021 for written reasons to be provided for the removal of the Applicant from her position and records of the complaints lodged against the Applicant, as well as the outcome of any investigation. The letter from the District Director addressed to Brandmullers Incorporated dated 4 May 2021 was placed in dispute, with no proof that could be provided that this letter was indeed forwarded to the Applicant’s Legal Representative. In that letter the District Director had referred to Item 6(2) of Schedule 2 of the EEA, which provides that the Respondent may transfer an Educator to another post if the Employer believes that the presence of the Educator may endanger the wellbeing or safety of any person at the workplace, amongst others. Their view was that this interpretation of the EEA was not correct since the intention of the EEA is that the employee who is the cause of the dangerous situation would be the one who would have to be transferred and not the Employee who is the subject of the threats. From the facts which are common cause it is clear that the Applicant is not the cause of the threatening situation.
35. The District Director’s report on 8 December 2020 directed to Mr E B Motau, the SGB Chairperson, indicated that no financial irregularities could be found insofar as the Applicant was concerned, in response to the complaints lodged by the unruly Educators, with charges 1 and 4 in the Notice of the Disciplinary hearing of 17 June 2021 relating to matters which were already dealt with in the District Director’s report of 8 December 2020. This confirmed that the Respondent was again siding with the unruly Educators when there was no evidence of wrongdoing by the Applicant. The unruly Educators had subsequently been called to disciplinary hearings for their behaviour and the Applicant was informed that they have been found guilty and provided with sanctions of final written warnings and were still at Mkhulu Combined School. It was queried why the Respondent would attempt to remove or transfer the Applicant and leave the wrongdoers in their positions. The Respondent had the right in terms of Item 6(2) of Schedule 2 of the EEA to suspend the wrongdoers for misconduct and to transfer and/or remove them from the school whilst they were endangering their fellow Educators with their actions.
36. Since the Respondent consistently failed to or refused to use the tools in the legislation and the Collective Agreement to address and correct the behaviour of the unruly Educators and to assist the Applicant to perform the work for which she was appointed, the Respondent had committed an unfair labour practice against the Applicant and had punished the Applicant, who had done nothing wrong. The SAPS had ensured the safety of the Applicant when needed hence there was no basis for the allegations that the Applicant could not return to her position due to the inability of the Respondent to provide her with a safe working environment. Reference was made to case law, of which the detail is not repeated here, in which it was held the demotion can occur where status, job content, responsibility and promotion prospects are prejudiced and that it would be unfair for the Respondent to succumb to the demands of the Educators for the Respondent to remove the Applicant from her post.
37. The Respondent’s version and argument in turn was that the dispute was whether the Applicant was unilaterally removed from the position of Principal at Mkhulu Combined School or not. The Applicant had herself notified the Circuit Manager and the District Director about the violent situation at the school and that the SAPS were called to calm the situation, as confirmed in the situational report that she wrote to her Seniors. On 14 July 2020 and 18 August 2020 a combined school staff consisting of 26 persons wrote to the Circuit Manager citing acts of intimidation of witnesses and interference into an investigation by the Principal and others. The Head of Department had received a report from the SGB on 17 March 2021 about death threats against the Principal from learners, parents and some members of the SGB. On 17 March 2021 the Applicant requested an urgent intervention from the Respondent after she received death threats from an Educator at a neighbouring school, for which a criminal case was opened. In this communication the Applicant also requested that the Respondent charge the Educators who had committed misconduct at the school.
38. The incident of 1 April 2021 when the Applicant sent an-email to three senior officials of the Respondent when members of the SAPS were called in to assist with access to the school was also referred to, as well as the meeting that was held with the Applicant on 12 April 2021 as a result of the events that happened at the school and during which she was informed that for her own safety she would be transferred to another school, as confirmed by the letter of 13 April 2021 issued to the Applicant. It did not mention that it would be a permanent transfer, or the office where the Applicant will be reporting. The Applicant had also expressed concern about her safety and since the Respondent could not guarantee her safety it felt it wise to transfer her then and for her to report to the Circuit Office. This reason was also confirmed in the report to the Applicant’s Legal Representative on 4 May 2021, which stated clearly that the transfer was purely based on her own safety. With respect to the second intervention that the Applicant requested regarding the unruly behaviour of certain Educators at the school, the District Director had on 5 May 2021 made a submission in this regard, subsequent to which the Respondent did charge those Educators. The Applicant on 17 June 2021 acknowledged receipt of her own disciplinary charges. The District Director of the Respondent reported that since the Applicant was reporting at the Circuit Office teaching and learning was normal at the school in the absence of the Principal.
39. The Respondent reiterated that based on the sequence of events since 2020 the purpose of the transfer was solely based on the Applicant’s safety, which the Respondent could not guarantee since death threats were emanating from parents, learners, Educators from Mkhulu Combined School and an Educator from a neighbouring school. The Respondent had responded to the Applicant’s pleas of disciplining some of the Educators and protecting her life. The Applicant had agreed to be temporarily transferred to the Circuit Office as confirmed in a letter from the Head of Department, hence there was no specific school to which she was being transferred. The meeting at which a possible permanent transfer will be explored had not yet taken place, hence this is only a temporary transfer.
40. The Applicant is still the Principal of Mkhulu Combined School. Their assessment was that if they kept the Applicant at the school learning would not take place for the 2021 academic year and examinations would be affected. They regarded the dispute as premature since the Respondent had not permanently placed the Applicant in another school or Circuit. On this basis it was requested that the relief sought be dismissed.
41. With respect to the parties’ aforementioned averments and the case at hand, I refer to the following extracts from the EEA and the Collective Agreement, which are deemed as relevant to this dispute:
42. Section 6 of the EEA relating to the powers of employers:
6. Powers of employers
(1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator –
(a) in the service of the Department of Basic Education shall be made by the Director-General; or
(b) in the service of a provincial Department of Basic Education shall be made by the Head of Department.
(2) Subject to the provisions of this Chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be in accordance with such procedure and such requirements as the Minister may determine.
(3) (a) Subject to paragraph (m), 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 governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.
43. From this section of the EEA it is clear that any transfer may only be made on the recommendation of the SGB for ratification by the Head of Department (or delegated authority).
44. Items 6(2) and 6(3)(a) of Schedule 2 Disciplinary Code and Procedures for Educators of the EEA relating to suspension, which read as follows:
(2) “In the case of misconduct in terms of section 18, the employer may suspend an Educator in accordance with the procedure contemplated in sub item (1), or transfer the Educator to another post if the Employer believes that the presence of the educator may jeopardise any investigation into the alleged misconduct, or endanger the wellbeing or safety of any person at the work-place.
(3)(a) If an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer;
45. It is noted that the Respondent did not provide the reason for the Applicant’s transfer as being for the purpose of investigating alleged misconduct or that her presence may endanger the wellbeing or safety of any other person, but instead for her own safety, and to ensure that teaching and learning takes place in a stable environment at Mkhulu Combined School.
46. The Collective Agreement No 4 of 2016 Transfer of Serving Educators in terms of Operational Requirements dated 23 August 2016 states as follows under Item B.6:
B.6.1 Operational requirements for education institutions are based on, but not limited to the following:
B.6.1.1 Change in learner enrolment.
B.6.1.2 Curriculum changes or a change in learners’ involvement in the curriculum.
B.6.1.3 Change to the grading or classification of an institution.
B.6.1.4 Merging or closing of institutions.
B.6.1.5 Financial constraints.
47. Since the circumstances are not limited to the above examples, a transfer under other circumstances could also be contemplated, as applied by the Respondent. B.6.2 to B.6.8 details the process to be followed in transferring Educators. Of relevance in this matter is B.6.9 The Role of the Arbitrator in Respect of the Process Above, which states as follows at B.6.9.1 and the other relevant Items:
B.6.9.1 During any ELRC arbitration proceedings about the enforcement, interpretation or application of the measures outlined above, an arbitrator appointed by the ELRC shall have jurisdiction to set aside the decision of the employer to transfer an educator to a specific school and refer the decision back to the employer for a fresh decision if:
B.188.8.131.52 The educator has not been given an opportunity to make representations about the specific school to which the employer intends to transfer the educator; or
B.184.108.40.206 The educator has not been given reasonable notice of the date on which he/she must report for duty at a school to which he/she has been transferred; or
B.220.127.116.11 The employer has failed to apply his/her mind to the representation e.g. personal circumstances that the educator has brought to the attention of the employer, or has otherwise acted irrationally in this regard. In determining whether the employer has acted irrationally in this regard the arbitrator shall amongst others consider the following: (the factors not listed here).
B.6.9.2 An ELRC arbitrator who arbitrates a dispute about the interpretation, application or enforcement of the measures outlined above shall:
B.18.104.22.168 not have any jurisdiction to determine where an educator shall be transferred to as this falls within the prerogative of the employer; and
B.22.214.171.124 not have jurisdiction to award compensation.
48. From the foregoing it is implied that these provisions relate to a dispute referred in terms of the interpretation and application of this Collective Agreement, which is not how this dispute was referred, although the principles will still be applicable when assessing the fairness of the Respondent’s actions with respect to the Applicant’s transfer and alleged demotion.
49. The letter signed for by the Applicant on 13 April 2021 from Ms L H Moyane the Respondent’s Acting Head of Education is also deemed as key to this matter, which reads as follows:
TRANSFER TO ALTERNATIVE POST
The above-mentioned has reference.
As resolved in the meeting on Monday 12 April 2021, for your own safety and to ensure teaching and learning takes place in a stable environment at Mkhulu Combined School, you are herewith informed that you are being transferred from Mkhulu Combined School with immediate effect.
The Department will communicate the alternative post where you will be transferred to as soon as the administrative processes have been finalised.
50. It is also noted that the Respondent in its closing arguments had referred to the dispute as relating to a unilateral change to terms and conditions of employment, which I would not have jurisdiction to arbitrate in terms of the provisions of the LRA. This error was however rectified at the commencement of the arbitration with the consent of the parties to an alleged unfair labour practice dispute relating to alleged demotion.
51. Another very important consideration in a dispute of this nature is the best interests of the child, learners in general and the community at large. The best interests of the child relate to the prescript that the child must be considered before a decision affecting his or her life is made, as provided for in section 28(2) of the Constitution of South Africa –Bill of Rights which at section 28(2) states that - “A child’s best interests are of paramount importance in every matter concerning the child” with a “child” meaning a person under the age of 18 years, as well as section 8 of the Childrens Act 38 of 2005 (the CA).
52. The respondent had expressed the concern that learning would not take place and examinations would be disrupted for the 2021 academic year if the Applicant was not transferred (albeit temporarily in the Respondent’s version). This impacts on the best interests of learners at Mkhulu Combined School. Even if this is not pertinently raised by a party in an arbitration, I am obliged to consider the best interests of the child in arriving at the appropriate award. Prof Adriaan van der Walt in a paper titled The Principle of the Best Interests of the South African Child delivered on 9 September 2016 states as follows: “Taking into account that section 28(2) constitutes a right, all organs of state must respect, protect, promote and fulfil the best interest of a child or children in general”. Section 8 of the CA also provides as follows: “In all matters concerning the care, protection and well-being of the child the standard of the child’s best interests is of paramount importance and must be applied.” By stating that the child’s best interests are of paramount importance it means that they can trump the rights and interests of persons older than 18 years of age. Van der Walt continues to define the best interests of the child as follows: “Basic interests, for example [in] physical, emotional and intellectual care; developmental interests [in entering] adulthood as far [as] possible without disadvantage; autonomy interests, especially the freedom to choose a lifestyle of their own. “
53. I have considered all the evidence and argument presented, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities, the admitted documents and facts established as common cause. The following is accordingly found in the circumstances of this case:
54. The position that the best interests of the child is paramount finds support in the Constitutional Court judgement in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) in which it was held that section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. This consequently also binds Arbitrators or Panellists in a forum such as this to give consideration to the effect their decisions will have on childrens’ lives, and learners collectively, when they decide on the fairness or otherwise of an employer’s actions.
55. These decision makers are not limited to an Arbitrator in determining a dispute which affects the interests of children, but would apply to all decision makers within the echelon of professions such as the Education sector, which includes schools and School Governing Bodies, when they make decisions surrounding Educators and the potential impact that it will have on the best interests of learners at a particular school.
56. The EEA spells out the procedure to be adhered to when an Educator is transferred, which does not distinguish between temporary and permanent transfers, specifically that the School Governing Body (SGB) will make such recommendations to the Head of Department, who is the only authority who may ratify and make appointments. It was common cause that this did not apply in the Applicant’s case.
57. In the Respondent’s version it had to take emergency measures to protect the Applicant and the interest of the learners at the school. This however does not mean that the prescripts of the EEA can be sidelined, which can instead be expedited as a matter of urgency.
58. It was not in dispute that a situation had developed between the Applicant as school Principal and certain Educators that overflowed beyond the confines of Mkhulu Combined School and resulted in disruption, protests and even death threats against the Applicant. As to what was the cause of this violent scenario is overshadowed by the fact that these events did indeed take place and caused severe disruption of education at the school, whether it lay at the door of the Principal herself and because of her conduct, or as a result of the conduct of the aggrieved Educators and other parties. The Applicant had requested interventions from the Respondent to support and protect her in her role as Principal, with the Respondent’s delayed responses, perceived lack of support and bias towards the unruly elements, being regarded by the Applicant as contributing towards the unfairness that had been committed by the Respondent.
59. It was common cause that disciplinary action had been instituted by the Respondent against the unruly Educators, as the alleged troublemakers were referred to, as well as the Applicant. It came to light in the parties’ closing arguments that the disciplinary hearings of some, if not all, of the Educators had been concluded, although it is common cause that the Applicant’s disciplinary hearing had not been convened yet.
60. The Respondent had in the letter of 4 May 2021, which it was disputed whether it had ever been served on the Applicant’s Legal Representative Mr A Brandmuller, stated that the Applicant was transferred as a precaution in line with Item 6(2) of Schedule 2 of the EEA which provided that the Department may transfer an educator to another post if the employer believes that the presence of the educator may endanger the well-being or safety of any person at the work-place, amongst others. The facts of the matter however did not support this contention, with the Respondent having confirmed that the reason for the Applicant’s transfer on 12 April 2021 did not relate to a suspension or transfer pending an investigation or disciplinary hearing to be held in terms of Item 6 Suspension of Schedule 2 Disciplinary Code and Procedures for Educators of the EEA.
61. The provisions of Item 6 are therefore not applicable in this matter, as cited in the disputed letter of 4 May 2021 from Mr D M Maja the District Director, although in this letter it was mentioned that grievances had been lodged against the Applicant containing allegations of misconduct against the Applicant, which the Respondent believed was the source of the chaos that had erupted at the school. The Applicant was served with the notice of the disciplinary charges against her on 17 June 2021 and a hearing is yet to be held. The Respondent had however reiterated that the Applicant’s removal from her post was for the purposes of a temporary transfer to another post to provide for her own safety and to ensure teaching and learning takes place in a stable environment at Mkhulu Combined School, which temporary transfer the Respondent had indicated would be at the Circuit Office and that a meeting still needed to be held to determine the Applicant’s permanent transfer.
62. It is therefore clear that the Applicant’s temporary or permanent transfer from the post of Principal at Mkhulu Combined School has still to be resolved, as well as the disciplinary action instituted against her since she has still been on temporary transfer since 12 April 2021, up till the time of the conclusion of the arbitration on 30 November 2021, which is an inordinately long period of time for something of this nature to be resolved. It was noted that the Applicant was requested on 15 April 2021 to return the school property in her possession to the Circuit Office on 16 April 2021, which it was common cause she had complied with after a final notice to hand over the property was issued to her on 16 April 2021. This raises the question on whether this was indeed a temporary transfer or whether the Respondent had intended to make the transfer of a more permanent nature.
63. With reference to the provisions in Collective Agreement No 4 of 2016 Transfer of Serving Educators in terms of Operational Requirements, as already referred to and which will not be detailed here again, and in particular the principles contained therein which would be relevant to this dispute, little evidence was presented that the Respondent had applied these principles with respect to the Applicant’s transfer.
64. Based on the foregoing grounds I have to conclude that the Respondent had committed an unfair act or omission towards the Applicant by removing her from the post of Principal at Mkhulu Combined School and transferring her temporarily. As to whether this unfair act or omission relates to a demotion, in law demotion could also mean a reduction or diminution of dignity, importance, responsibility, power or status even if salary, attendant benefits and rank are retained, as held in Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services & Others (2008) 29 ILJ 2708 (LAC) and SA Police Services v Salukazana & Others (2010) 31 ILJ 2465 (LC). Although in this matter the Applicant’s remuneration, attendant benefits and position title had not been adversely affected, it is supported that she had suffered humiliation, that her dignity has been impaired and that she has been denied the opportunity to perform the work that she was appointed for.
65. The Respondent had furthermore confirmed that the Applicant was still the Principal of Mkhulu Combined School. This was however only in name, paypoint and remuneration.
66. The relief sought if unfairness is found was that the Applicant be reinstated in her post, meaning to physically be allowed to perform her duties and occupy the office as Principal at the school. The Respondent had also reported through the District Director on 6 May 2021 that since the Applicant had been removed from the school the situation was now normal and that effective teaching and learning had taken place. Disciplinary action had also been taken against certain of the Educators who had committed misconduct at the school, with the disciplinary hearing of the Applicant which was originally scheduled for 29 June 2021, of which the notice was issued on 12 November 2020 and received by the Applicant on 17 June 2021, still pending. Until the Applicant’s own disciplinary process has been concluded her contribution to the situation that had evolved at Mkhulu Combined School cannot be fully established.
67. Since the environment at Mkhulu Combined School would appear to have stabilised and the Respondent is in the process of implementing the required disciplinary action, I am in the circumstances prepared to order that the Applicant be allowed to perform her duties again as Principal at Mkhulu Combined School at the commencement of the new school academic year in 2022.
68. Because of the circumstances of this case I need to make the following observations (note not ordered as part of the award):
• That the Respondent should be mindful of the processes and procedures to be followed should further interventions be required in the new academic year, as well as that the best interests of the learners at Mkhulu Combined School should remain paramount at all times.
• That it is not appropriate, and is frowned upon, for Educators to act irresponsibly and recklessly based on personal and other agendas and in the process ignore the interests of the learners entrusted to them.
• That the Respondent has a duty to be alert to and prevent scenarios as in this case from developing, which is also in the public interest and the community at large.
• That although the Respondent has a duty to ensure the safety in general of Educators in its employment, it would be unreasonable to expect the Respondent to provide a SAPS or Security presence to protect the Applicant at all times, since she requested to be reinstated in her post at Mkhulu Combined School, despite the past history at the school.
69. The Respondent, the Department of Education – Mpumalanga, had committed an unfair labour practice relating to demotion towards the Applicant, Ms Dudu Agnes Lusenga.
70. The Respondent is ordered to reinstate the Applicant in the post of Principal at Mkhulu Combined School with effect from the date that the 2022 academic year commences.
71. No order as to costs is made.
Panellist: Alta Reynolds