ELRC644-20/21 EC
Text
ELRC458-21/22EC
Award Date:
07 March 2022
Case Number: ELRC458-21/22EC
Commissioner: E Maree
Date of Award: 7 March 2022
In the ARBITRATION between
Lindiwe Elsie Katywa
(Applicant)
And
Department of Education Eastern Cape
(Respondent)
Applicant’s representative: Ms. J, Trent
Respondent’s representative: Mr. L. Ndzongo
Details of hearing and representation
1The arbitration regarding the alleged unfair labour practice, referred in terms of section 191 of the Labour Relations Act 66 of 1995 [as amended], ‘’the LRA’’ was heard on the 13th of December 2021 and the 18th of February 2022 via ZOOM.
2. The applicant was represented by Ms. J. Theron an attorney while the respondent was represented by Mr. L. Ndzongo from Labour Relations.
3. The arbitration was electronically recorded, and handwritten notes were taken.
4. At the conclusion of the arbitration the parties have agreed to submit written closing arguments on/before the 25th of February 2022.
Issues to be decided
5. I must determine if the respondent committed an unfair labour practise when the applicant was moved from Thembelihle Primary School to Van Coller Primary School during March 2021.
6. Appropriate relief must be determined in the event of a finding that an unfair labour practice exists.
Background to the dispute
7. The applicant, who had been employed at the respondent since 1003 occupied the position of Deputy Principal at Thembalihle Primary School since 2019, was seconded to Van Coller Primary School from the 15th of March 2021.
8. The applicant experience no change in salary following said move.
9. Following unsuccessful conciliation a certificate of non-resolution was issued and the dispute was referred to arbitration.
10. The applicant submitted bundle ‘’A’’ and the respondent submitted bundle ‘’B’’. The respective bundles were not disputed.
Survey of evidence and argument
The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.
Applicant’s evidence
12. The applicant called one (1) witness in order to prove, on a balance of probabilities, that the conduct of the respondent amounted to an unfair labour practise.
13. Ms. Lindiwe Elsie Katywa testified following the secondment from Thembalihle to Van Coller she was no longer a Deputy Principal [DP] on post level 3 but an educator on post level 1. Due to this she no longer fulfilled the duties of a DP, had no employees reporting to her, and in turn reported to the principal and teaches.
14. Ms Katywa submitted that when she commenced duties as DP at Thembalihle there was a difference of opinion between herself and the principal, who humiliated her, was negative towards her and refused to give her the key to her office, resulting in her having to work in the staff room. This was due to the fact that the principal had issues with her appointment claiming she has no correspondence to the effect. The Circuit Manager however visited the school in order to sort the issue out. She was later given the keys, but the principal installed a ‘’keep lock’’ preventing her from accessing the office.
15. Ms Katywa testified that she laid a grievance with the respondent regarding being bullied, victimised and embarrassed by the principal but received no response. Despite doing nothing wrong, she was punished by the respondent when she was moved to another school. She was also not suspended nor disciplined.
16. According to Ms. Katywa she was a witness at the hearing of the principal on the 30th of August 2021 but was not informed of the outcome. The last communication she had received from the respondent was that the investigation had been concluded and that ‘’everything was normalised’’.
17. The secondment had damaged her reputation and dignity. As the two schools are close, she had been approached by parents who she was teaching and not a DP. This was embarrassing and humiliating. She had no fight with the principal but was victimised by her. This led to her being humiliated, consulting a psychologist and being prescribed anti-depressants.
Respondent’s evidence
18. The respondent called one witness to testify on its behalf and Mr. Nicolas de Bruin testified that he is the District Director of Chris Hani West District.
19. The respondent was involved in the issues that existed between the applicant and the principal who did not get along to such extent that the school became ineffective and numerous discussions with them were held.
20. According to Mr de Bruin the portfolio committee and the provincial legislature visited the school during February 2021 and ‘’picked up that something was wrong’’ and that no working relationship existed between the applicant and the principal and could not be restored. Due to this the district office gave them 7 days to provide a strategy regarding the way forward. The principal gave ‘’something’’ but the applicant did not provide any feedback.
21. The portfolio committee then had to decide if the school must be subjected to the ongoing feud or if action must be taken. He then had separate conversations with the principal and the applicant and indicated it was in the best interest of the school and the learners that they be at different institutions. After the discussions, they agreed and were placed at different institutions. The principal was placed at Edulweni and the applicant at Van Coller. This move was preceded by many complaints including a march by the educators who indicated the situation could not continue due to the bad relationship that could not be restore which led to him approaching the management of the district and the ultimate decision to move both parties, following his discussions with them.
22. Before the secondments were done, he had approached the principals of both schools who in turn discussed the issue with their respective SGB’s, to ensure that the moves ‘’go smoothly’’. They were then moved as the schools had no issues.
23. Mr de Bruin submitted that following the temporary secondment he continuously interacted with the principals of the two schools and the Circuit Manager and was not informed of any problems, especially not that the applicant ‘’was suffering’’ due to the secondment.
24. Mr de Bruin stated that due to the feud at Thembalihle, the student numbers dwindled, and 5 educators resigned but following the secondments, the numbers increased as did the performance. The respondent placed an administrator at Thembalihle to ‘’’mend what was broken’’ and to give feedback via the Circuit Manager. The respondent returned with the portfolio committee during July/August 2021, and they were informed that there was harmony between the employees, the SGB was happy and that the school was running smoothly. They were also informed by the unions that they ‘’could see that the secondments are working’’.
25. In conclusion of his evidence Mr de Bruin stated that the disciplinary process against the principal had been concluded after a year and that the respondent was awaiting the sanction.
Analysis of evidence and Arguments
26. I must determine if the respondent committed an unfair labour practice when the applicant was seconded from Thembalihle Primary School to Van Coller Primary School and specifically if this amounts to a demotion.
27. Section 186 (2) (a) of the LRA defines an unfair labour practice as follows:
(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 the 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’’.
28. It is trite law that the onus in an unfair labour practice is on an applicant to prove that the conduct complained of, in this matter the secondment, constituted an unfair labour practise (Buffalo City Public FET College v CCMA & Other (P371/12) {2016) ZALCPE 18 (handed down on 4 November 2016)
29. The salient issues in this matter was common cause. The applicant who was a Deputy Principal at Thembalihle Primary School was seconded to Van Coller Primary School from the 15th of March 2021 to date. This was done without any changes to her salary or other conditions of employment and her salary slip still reflects her position as Deputy Principal.
30. It was further common cause that the applicant renders services as educator at Van Coller and not as Deputy Principal. It was not disputed that the Principal of Thembalihle was also moved to another school and that these moves were preceded by discussions revolving around the ongoing conflict between the parties and the best interest of the school community.
31. The applicant submitted that the secondment amounted to a demotion and also impaired her dignity, damaged her reputation and led to her consulting a psychologist who prescribed the use of anti-depressants.
32. In law demotion could also mean a reduction in salary or diminution of importance, dignity, responsibility, power or status even if salary, attendant benefits and rank are retained.
33. Section 186(2)(a) by implication permits an employer to demote an employee but this must be done fairly. If an employee complains that she was subjected to an unfair demotion, she must prove that indeed a demotion occurred. A demotion does not occur merely because an employee is placed in a post involving slightly different work that falls within the scope of the employee’s duties. The mere fact that an employee’s title is changed is not necessarily proof of a demotion, something more is required. The change in the position of the employee must also entail a loss of benefits or a lowering of the status of the employee. The prestige, status and even word-duties may be less.
34. It was common cause that the applicant’s post description on her payslip still reflects ‘’Deputy Principal’’ and that her salary and benefits remain unchanged. It was, however, also common cause that she no longer fulfils the duties of a Deputy Principal but that of an educator.
35. I accept from this that there was indeed a demotion as there was a material reduction in status and responsibilities of the applicant.
36. The question to be answered is if this demotion was unfair as this is the conduct prohibited by section 186(2)(a) that would be visited with a remedy.
37. The applicant and the Principal at Thembalihle were both seconded to other schools due to issues between them that impacted on the school and its activities. Although the applicant denied that she played a role in the issues and blamed the principal and the respondent, it is clear that the relationship between them was strained even if only seen from the applicant’s point of view namely that she was bullied and victimised. If so, no relationship can be normal and/or tension free and most definitely will impact on working relationships and the working environment.
38. It was this situation that led to the respondent’s decision to move both parties to different schools. This per se is not unfair as more interests than only that of the applicant and the principal was at stake.
39. The evidence of Mr. de Bruin that when the issues between the applicant and Principal came to the fore, certain actions were taken which ultimately led to him having separate conversations with the principal and the applicant during which he indicated that it was in the best interest of the school and the learners that they be at different institutions. After the discussions, they agreed and were placed at different institutions. This evidence was not materially challenged.
40. It was also testified by Mr. de Bruin that due to the feud at Thembalihle, the student numbers dwindled, and 5 educators resigned but following the secondments, the numbers increased as did the performance. He submitted that the respondent placed an administrator at Thembalihle to ‘’’mend what was broken’’ and to give feedback via the Circuit Manager. The respondent returned with the portfolio committee during July/August 2021, and they were informed that there was harmony between the employees, the SGB was happy and that the school was running smoothly. They were also informed by the unions that they ‘’could see that the secondments are working’’. This evidence was also not materially challenged.
41. In a letter from the respondent dated the 9th of March 2021 the applicant is informed of her move ‘’until the situation at Thembelihle is normalised’’. It became common cause during the arbitration that the situation indeed had normalised as is clear from the evidence of Mr. de Bruin and also that the disciplinary process against the principal had been finalised during November 2021. It was testified that the respondent is only awaiting confirmation of the sanction imposed from the MEC.
42. Mr. de Bruin also testified that they ‘’are busy closing the chapter’’ and that ‘’if the sanction is received, the process will end, and we will look at the applicant’s original placement’’. He also later confirmed that the issue was not placing the applicant back at Thembalihle, but the issue is her claim for compensation, he submitted that ‘’ we ended the principal’s case, we are near the end of the saga, and ultimately the applicant will return’’.
43. In Mandla Skosana v CCMA and others (JR) 2160/15) (handed down on 6 March 2019) the Court held that in determining fairness, the proper context must be considered. There exists no separate requirement of procedural fairness in an alleged unfair labour practise. The proper enquiry thus entails whether the suspension of the benefit as had happened in that matter, was objectively justified and not irrational, arbitrary or mala fide. Contrary to an unfair dismissal dispute where a clear distinction is often drawn between substantive and procedural fairness. This is not the case when determining fairness in an unfair labour practise dispute and a more holistic approach based on all the evidence should be adopted.
44. The evidence shows that although the applicant was demoted by lowering her status given the context this occurred in and the fact that she consented to the move to another school., following discussions, there was no unfair and thus no unfair labour practise. It is also clear from the evidence that she would be returned to her original position as the process against the principal had been concluded.
45. In Dladla v Council of Mbombela Local Municipality and another (2008) 29 ILJ 1902 (LC) the Court held that damage to the employee’s image and reputation was not a ground for finding the suspension unlawful. The same principal will apply in a demotion matter in considering evidence regarding impairment to dignity and damage to reputation. This principle is also applicant to claims by the applicant that the demotion led to her consulting a psychologist who prescribed ant-depressants. This evidence was in any event not substantiated in any way.
46. The applicant, who had the onus to proof the existence of an unfair labour practise, failed to do so.
Award
47. I therefore make the following award
47.1. The applicant failed to prove the existence of an unfair labour practise.
47.2. The dispute is subsequently dismissed.
DATED AT PRETORIA ON THIS 7th DAY OF MARCH 2022
Council Commissioner E Maree
Commissioner: E Maree
Date of Award: 7 March 2022
In the ARBITRATION between
Lindiwe Elsie Katywa
(Applicant)
And
Department of Education Eastern Cape
(Respondent)
Applicant’s representative: Ms. J, Trent
Respondent’s representative: Mr. L. Ndzongo
Details of hearing and representation
1The arbitration regarding the alleged unfair labour practice, referred in terms of section 191 of the Labour Relations Act 66 of 1995 [as amended], ‘’the LRA’’ was heard on the 13th of December 2021 and the 18th of February 2022 via ZOOM.
2. The applicant was represented by Ms. J. Theron an attorney while the respondent was represented by Mr. L. Ndzongo from Labour Relations.
3. The arbitration was electronically recorded, and handwritten notes were taken.
4. At the conclusion of the arbitration the parties have agreed to submit written closing arguments on/before the 25th of February 2022.
Issues to be decided
5. I must determine if the respondent committed an unfair labour practise when the applicant was moved from Thembelihle Primary School to Van Coller Primary School during March 2021.
6. Appropriate relief must be determined in the event of a finding that an unfair labour practice exists.
Background to the dispute
7. The applicant, who had been employed at the respondent since 1003 occupied the position of Deputy Principal at Thembalihle Primary School since 2019, was seconded to Van Coller Primary School from the 15th of March 2021.
8. The applicant experience no change in salary following said move.
9. Following unsuccessful conciliation a certificate of non-resolution was issued and the dispute was referred to arbitration.
10. The applicant submitted bundle ‘’A’’ and the respondent submitted bundle ‘’B’’. The respective bundles were not disputed.
Survey of evidence and argument
The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.
Applicant’s evidence
12. The applicant called one (1) witness in order to prove, on a balance of probabilities, that the conduct of the respondent amounted to an unfair labour practise.
13. Ms. Lindiwe Elsie Katywa testified following the secondment from Thembalihle to Van Coller she was no longer a Deputy Principal [DP] on post level 3 but an educator on post level 1. Due to this she no longer fulfilled the duties of a DP, had no employees reporting to her, and in turn reported to the principal and teaches.
14. Ms Katywa submitted that when she commenced duties as DP at Thembalihle there was a difference of opinion between herself and the principal, who humiliated her, was negative towards her and refused to give her the key to her office, resulting in her having to work in the staff room. This was due to the fact that the principal had issues with her appointment claiming she has no correspondence to the effect. The Circuit Manager however visited the school in order to sort the issue out. She was later given the keys, but the principal installed a ‘’keep lock’’ preventing her from accessing the office.
15. Ms Katywa testified that she laid a grievance with the respondent regarding being bullied, victimised and embarrassed by the principal but received no response. Despite doing nothing wrong, she was punished by the respondent when she was moved to another school. She was also not suspended nor disciplined.
16. According to Ms. Katywa she was a witness at the hearing of the principal on the 30th of August 2021 but was not informed of the outcome. The last communication she had received from the respondent was that the investigation had been concluded and that ‘’everything was normalised’’.
17. The secondment had damaged her reputation and dignity. As the two schools are close, she had been approached by parents who she was teaching and not a DP. This was embarrassing and humiliating. She had no fight with the principal but was victimised by her. This led to her being humiliated, consulting a psychologist and being prescribed anti-depressants.
Respondent’s evidence
18. The respondent called one witness to testify on its behalf and Mr. Nicolas de Bruin testified that he is the District Director of Chris Hani West District.
19. The respondent was involved in the issues that existed between the applicant and the principal who did not get along to such extent that the school became ineffective and numerous discussions with them were held.
20. According to Mr de Bruin the portfolio committee and the provincial legislature visited the school during February 2021 and ‘’picked up that something was wrong’’ and that no working relationship existed between the applicant and the principal and could not be restored. Due to this the district office gave them 7 days to provide a strategy regarding the way forward. The principal gave ‘’something’’ but the applicant did not provide any feedback.
21. The portfolio committee then had to decide if the school must be subjected to the ongoing feud or if action must be taken. He then had separate conversations with the principal and the applicant and indicated it was in the best interest of the school and the learners that they be at different institutions. After the discussions, they agreed and were placed at different institutions. The principal was placed at Edulweni and the applicant at Van Coller. This move was preceded by many complaints including a march by the educators who indicated the situation could not continue due to the bad relationship that could not be restore which led to him approaching the management of the district and the ultimate decision to move both parties, following his discussions with them.
22. Before the secondments were done, he had approached the principals of both schools who in turn discussed the issue with their respective SGB’s, to ensure that the moves ‘’go smoothly’’. They were then moved as the schools had no issues.
23. Mr de Bruin submitted that following the temporary secondment he continuously interacted with the principals of the two schools and the Circuit Manager and was not informed of any problems, especially not that the applicant ‘’was suffering’’ due to the secondment.
24. Mr de Bruin stated that due to the feud at Thembalihle, the student numbers dwindled, and 5 educators resigned but following the secondments, the numbers increased as did the performance. The respondent placed an administrator at Thembalihle to ‘’’mend what was broken’’ and to give feedback via the Circuit Manager. The respondent returned with the portfolio committee during July/August 2021, and they were informed that there was harmony between the employees, the SGB was happy and that the school was running smoothly. They were also informed by the unions that they ‘’could see that the secondments are working’’.
25. In conclusion of his evidence Mr de Bruin stated that the disciplinary process against the principal had been concluded after a year and that the respondent was awaiting the sanction.
Analysis of evidence and Arguments
26. I must determine if the respondent committed an unfair labour practice when the applicant was seconded from Thembalihle Primary School to Van Coller Primary School and specifically if this amounts to a demotion.
27. Section 186 (2) (a) of the LRA defines an unfair labour practice as follows:
(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 the 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’’.
28. It is trite law that the onus in an unfair labour practice is on an applicant to prove that the conduct complained of, in this matter the secondment, constituted an unfair labour practise (Buffalo City Public FET College v CCMA & Other (P371/12) {2016) ZALCPE 18 (handed down on 4 November 2016)
29. The salient issues in this matter was common cause. The applicant who was a Deputy Principal at Thembalihle Primary School was seconded to Van Coller Primary School from the 15th of March 2021 to date. This was done without any changes to her salary or other conditions of employment and her salary slip still reflects her position as Deputy Principal.
30. It was further common cause that the applicant renders services as educator at Van Coller and not as Deputy Principal. It was not disputed that the Principal of Thembalihle was also moved to another school and that these moves were preceded by discussions revolving around the ongoing conflict between the parties and the best interest of the school community.
31. The applicant submitted that the secondment amounted to a demotion and also impaired her dignity, damaged her reputation and led to her consulting a psychologist who prescribed the use of anti-depressants.
32. In law demotion could also mean a reduction in salary or diminution of importance, dignity, responsibility, power or status even if salary, attendant benefits and rank are retained.
33. Section 186(2)(a) by implication permits an employer to demote an employee but this must be done fairly. If an employee complains that she was subjected to an unfair demotion, she must prove that indeed a demotion occurred. A demotion does not occur merely because an employee is placed in a post involving slightly different work that falls within the scope of the employee’s duties. The mere fact that an employee’s title is changed is not necessarily proof of a demotion, something more is required. The change in the position of the employee must also entail a loss of benefits or a lowering of the status of the employee. The prestige, status and even word-duties may be less.
34. It was common cause that the applicant’s post description on her payslip still reflects ‘’Deputy Principal’’ and that her salary and benefits remain unchanged. It was, however, also common cause that she no longer fulfils the duties of a Deputy Principal but that of an educator.
35. I accept from this that there was indeed a demotion as there was a material reduction in status and responsibilities of the applicant.
36. The question to be answered is if this demotion was unfair as this is the conduct prohibited by section 186(2)(a) that would be visited with a remedy.
37. The applicant and the Principal at Thembalihle were both seconded to other schools due to issues between them that impacted on the school and its activities. Although the applicant denied that she played a role in the issues and blamed the principal and the respondent, it is clear that the relationship between them was strained even if only seen from the applicant’s point of view namely that she was bullied and victimised. If so, no relationship can be normal and/or tension free and most definitely will impact on working relationships and the working environment.
38. It was this situation that led to the respondent’s decision to move both parties to different schools. This per se is not unfair as more interests than only that of the applicant and the principal was at stake.
39. The evidence of Mr. de Bruin that when the issues between the applicant and Principal came to the fore, certain actions were taken which ultimately led to him having separate conversations with the principal and the applicant during which he indicated that it was in the best interest of the school and the learners that they be at different institutions. After the discussions, they agreed and were placed at different institutions. This evidence was not materially challenged.
40. It was also testified by Mr. de Bruin that due to the feud at Thembalihle, the student numbers dwindled, and 5 educators resigned but following the secondments, the numbers increased as did the performance. He submitted that the respondent placed an administrator at Thembalihle to ‘’’mend what was broken’’ and to give feedback via the Circuit Manager. The respondent returned with the portfolio committee during July/August 2021, and they were informed that there was harmony between the employees, the SGB was happy and that the school was running smoothly. They were also informed by the unions that they ‘’could see that the secondments are working’’. This evidence was also not materially challenged.
41. In a letter from the respondent dated the 9th of March 2021 the applicant is informed of her move ‘’until the situation at Thembelihle is normalised’’. It became common cause during the arbitration that the situation indeed had normalised as is clear from the evidence of Mr. de Bruin and also that the disciplinary process against the principal had been finalised during November 2021. It was testified that the respondent is only awaiting confirmation of the sanction imposed from the MEC.
42. Mr. de Bruin also testified that they ‘’are busy closing the chapter’’ and that ‘’if the sanction is received, the process will end, and we will look at the applicant’s original placement’’. He also later confirmed that the issue was not placing the applicant back at Thembalihle, but the issue is her claim for compensation, he submitted that ‘’ we ended the principal’s case, we are near the end of the saga, and ultimately the applicant will return’’.
43. In Mandla Skosana v CCMA and others (JR) 2160/15) (handed down on 6 March 2019) the Court held that in determining fairness, the proper context must be considered. There exists no separate requirement of procedural fairness in an alleged unfair labour practise. The proper enquiry thus entails whether the suspension of the benefit as had happened in that matter, was objectively justified and not irrational, arbitrary or mala fide. Contrary to an unfair dismissal dispute where a clear distinction is often drawn between substantive and procedural fairness. This is not the case when determining fairness in an unfair labour practise dispute and a more holistic approach based on all the evidence should be adopted.
44. The evidence shows that although the applicant was demoted by lowering her status given the context this occurred in and the fact that she consented to the move to another school., following discussions, there was no unfair and thus no unfair labour practise. It is also clear from the evidence that she would be returned to her original position as the process against the principal had been concluded.
45. In Dladla v Council of Mbombela Local Municipality and another (2008) 29 ILJ 1902 (LC) the Court held that damage to the employee’s image and reputation was not a ground for finding the suspension unlawful. The same principal will apply in a demotion matter in considering evidence regarding impairment to dignity and damage to reputation. This principle is also applicant to claims by the applicant that the demotion led to her consulting a psychologist who prescribed ant-depressants. This evidence was in any event not substantiated in any way.
46. The applicant, who had the onus to proof the existence of an unfair labour practise, failed to do so.
Award
47. I therefore make the following award
47.1. The applicant failed to prove the existence of an unfair labour practise.
47.2. The dispute is subsequently dismissed.
DATED AT PRETORIA ON THIS 7th DAY OF MARCH 2022
Council Commissioner E Maree