ELRC 604-20/21GP
Text
ELRC 604-20/21GP
Award Date:
07 May 2022
Panelist: Jonathan Gruss
Case No.: ELRC29-21/22KZN
Date of Award: 7 May 2022
In the ARBITRATION between:
Zola Andrew Jozana
(Applicant)
and
Department of Education: Kwazulu-Natal
(Respondent)
Applicant’s representative: In person
Email info@listoz.co.za
Respondent’s representative: Mr Ngcobo
Email: ngcobs67@gmail.com
Summary: Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to benefits deduction of unpaid leave.
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.1.3 of the ELRC Constitution : ELRC Dispute Resolution Procedures (2021). The hearing was held via Zoom (virtual) on 24 February 2022 and 21 April 2022 and the proceedings were electronically recorded. The applicant, Zola Andrew Jozana appeared in person and conducted his own case. The respondent, Department of Education: KwaZulu-Natal was represented by Mr Ngcobo, an Employer Relation Officer. The parties agreed to submit written closing arguments by no later 28 April 2022, only the applicant party filed written closing arguments as agreed.
ISSUE TO BE DECIDED
2. This dispute concerns an alleged unfair labour practice regarding the respondent deducting unpaid leave from the applicant’s wages opposed to implementing paid leave. In determining the issues, I am required to determine whether the applicant based Notice 411 published under Government No. 43578 was entitled to be absent from work from 4 August 2020 to 14 August 2020 and therefore remunerated for the period of his absence.
INTRODUCTION
3. The following were recorded as common cause facts at the commencement of the arbitration:
3.1 The applicant is employed by the respondent as a post level 1 educator at Escort Secondary School earning per annum R298 746.00.
3.2 The applicant had been in the employ of the respondent since 1 July 2015.
3.3 During the period 4 August 2020 to 14 August 2020 the applicant was not at work and was at home.
APPLICANT’S EVIDENCE
4. The applicant testified under oath to the following effect.
4.1 He is an IT teacher at Escort Secondary School teaching technology to grades 8 and 9. Due to Covid 19 lock down regulations the school closed on 18 March 2020 and opened again on 29 May 2020. The grade 12’s were the first learners to return. There was a meeting on 29 May 2020 held in an open space. This meeting was convened by Mr Vilikazi the principal. It was announced at the meeting that Further Education & Training (FET) grades 10 – 12 teachers would assist in teaching grade 12 learners. The individual teachers volunteered.
4.2 On the 8 June 2020 a meeting was held with the grade 8 to 9 teachers, they were asked help with sanitising. He was given class 4A to sanitise. He was asked to help with sanitising with the class teacher. During the week 22 to 26 June 2020 a further meeting was held that resulted in him being moved to room 7 and 8 to deal with sanitising. He was on leave during that time. On Friday, 3 July 2020 there was school management team meeting. He was called to the meeting and asked which subjects he would teach. He offered to teach grade 11 since his major was no longer offered at the school. He offered to teach economics, mathematics and mathematical literacy.
4.3 He was also sent a WhatsApp message from the subject teachers informing him what he would be teaching. He was also allocated the duty to be the class teacher for grade 11C. During the same week he received a text message from the HOD, Mrs Radebe informing him and the department of a teacher who had tested positive for Covid. On Monday, 6 July 2020 there were issues with teachers not wanting to return to school. There was a circular that came from the district office that corroborated and supported the decision taken by the principal. Before they closed on 24 July 2020 he was teaching and they received no circular from the Department.
4.4 On Saturday, 1 August 2020 he received a document which mentioned that other teachers were expected to return on 17 August 2020 and it also mentioned that the Gazette would be issued on 3 August 2020. The Gazette however was issued on 2 August 2020. On the Monday, he went to the school hoping that there would be clarity on the way forward and it was then that he received the Government Gazette. It was at about approximately 11h04 on 3 August 2020 when he received the government Gazette. The principal was not at school at that time, so he spoke to the deputy principal, Ms Ngubane who informed him that there were some schools where teachers were not coming to school. He was happy that she was prepared to say something about a decision taken by the SMT. He told her that he would return to school on 17 August 2020. He also informed his immediate supervisor, the HOD Mr Mtshali to contact him if anything relating to technologies was required from him. During the period 4 to 14 August 2020 he kept himself busy staying in contact with colleagues who had informed him that they were at school working every day and nothing was said about the Government Gazette notice.
4.5 On 14 August 2020 the first meeting was held for the entire staff, he was not at school. At that meeting the principal allegedly instructed that those who are absent must sign leave forms. He was not called to the meeting and there were 3 other teachers who did not come to the school. That being, himself, Ms Mtshali and Mrs Mazibonga. When he returned on Monday, 17 August 2020 at approximately 09h00 Ms Radebi who deals with leave forms requested him to sign leave for the days when he was not at school. He questioned her why she approached him to sign leave forms. He informed her that based on the Government Gazette he was not absent. Ms Radebi then called Mr Msibi, the other deputy principal and Ms Radebi wanted him to repeat what he had told her about signing the leave forms. He did not want to sign the leave forms.
4.6 On 18 August 2020 he again went to speak to Ms Radebi who promised to speak to the principal on his behalf. The principal never got back to him, after two months he requested minutes of the meeting from the school. He wrote a letter on 15 September 2020 requesting the minutes and he was never given the minutes as requested. He then called the leave section who confirmed that they received a letter regarding a leave application by the principal. He then contacted the circuit office and spoke to a Mr Maharaj. When schools closed during the December holidays they are not required to sign leave forms.
4.7 Under cross-examination, the applicant stated that on 3 August 2020 he informed the deputy principal Mr Msibi that based on the lockdown regulations notice he would not be returning to work. The applicant further conceded that when he is not at work the person that he is required to report too is the principal. On a question whether he spoke to the principal, the applicant indicated that he did not ask the principal about the Gazette. He felt that he was not obliged to contact the principal because he was not seeking leave of absence and therefore, there is no need for him to seek permission. He accepted further that during the period 3 to 17 August 2020 he was the only educator who was absent from school. He confirmed further that on 3 August 2020 he left school at approximately 14h30.
RESPONDNET’S EVIDNECE
5. Ms Kanisile Ngubane Sello Mogotsi testified under oath to the following effect.
5.1 He is employed by the respondent as a deputy principal at the Escort Secondary School. He knows the applicant as the educator at the school.
5.2 When the Government Gazette came out he was not aware of the Government Gazette and the applicant did not inform him regarding the Gazette. On the first day that he arrived at the school there was a group of people standing at the office. Should an employee be absent from school she would inform the principal thereof. An educator is supposed to report to the principal not to her. The only time that the educator would report to her is when the principal is not at work. Should an educator be unable to report to the principal directly they must then send him a message. The applicant supervisor on the day was at work and the applicant had no reason to report to her.
5.3 When the principal is not at school the educators then report to her, however the principal Mr Vilikazi was at school. It was suggested to the witness that when the applicant spoke to the witness, the principal was not at school. The response given was that when the principal is at school you have to speak to him, he is head of the institution.
6. Mr Michael Msawenkosi Mtshali testified under oath to the following effect.
6.1 He is employed as a department head supervising technical subjects. He knows the applicant in that the applicant teaches technical subjects to grades 8 – 9. The applicant did not report to him that he would be absent from school. He did not know about the Gazette in that the applicant did not tell him about the Gazette. The applicant also did not phone him. Whenever an educator needs to be absent from school that educator must report to the principal.
6.2 On 3 August 2020 the principal was at school and the applicant is not telling the truth concerning the attendance of the principal. Where educators such as the applicant do not attend school, the children suffer. The applicant was allocated certain duties to attend to.
6.3 Under cross-examination the witness indicated considering circulars that they are only entertained should they come from the principal. He denies that the applicant spoke to him on 3 August 2020 concerning his absence. The procedures prescribe that the applicant should have spoken to the principal. It was suggested to the witness that the applicant forwarded the witness an email containing the Government Gazette notice and the witness acknowledged receipt thereof at 16h06. The witness indicated in response thereof that at that time he was already at home and he received no such document. The applicant was allocated duties to take responsibility of one of the school rooms (class) where he was required to conduct the screening of learners and all teachers were allocated such duties. The applicant was allocated room number 4. On a question by the applicant that when the school was about to close what duties was he (applicant) performing? The witness responded that that when the grade 12 were at school the applicant was allocated duties of sanitising and that subject were allocated to teachers such as the applicant.
7. Mr Isaac Mduduzi Vilikazi testified under oath to the following effect.
7.1 He is principal of Escort Secondary School and has been the principal 25 years. He knows the applicant as an educator that teachers at his school. On 3 August 2020 the applicant was at school that day. He as the Principal was present at school that day and the applicant did not report to him prior to him going home. On the following day, 4 August 2020 the applicant did not report for duties and he was absent from work from 4 to 14 August 2020.
7.2 As it relates to applicant claiming that he received the Government Gazette on 3 August 2020 and that is why he did not come to school, the witness indicated that the applicant never informed him of the Government Gazette, he never reported to him why he is leaving and should an educator be absent from school, that educator must report their absence to him. Educators must phone him should they not be coming to work. Should they (educators) leave school early, they must report to the deputy principal.
7.3 They had to break up the grade 12 classes into smaller classes to comply with Covid 19 regulations therefore ensuring social distancing. The applicant was responsible for sanitising. As to the applicant explaining his absence on his return to school, they have procedures in place and one of the SMT members is responsible to issue leave forms. The applicant refused to complete his leave forms. He was not informed of the reason for the applicant’s absence. As it relates to the existence of the Gazette, they at school are not directed by the Gazette, the respondent as well as the school have their own procedures. The applicant should have come to him to discuss the Gazette with him and not just stay away from work. No one was given permission to stay away from school.
7.4 Considering the applicant alleging that he reported his absence to the chief education specialist, Mr Maharaj from the circuit office and he refused to discuss the incident with Mr Maharaj. The witness explained that the applicant was supposed to have followed the channels of communication and the applicant was busy undermining his authority by not following the channels. As it relates to the applicant claiming that he was not requested to return to school, the witness considered this to be ridiculous in that the applicant was given duties on 8 July 2020. As a principal when educators refused to sign the form he has the authority to sign the leave form on an educator’s behalf. He could have charged the applicant with insubordination for refusing to sign the leave form. Had he allowed the applicant to stay away and not complete the leave form, he would then by implication be allowing other educators to stay away without permission. They needed the support of each staff member to assist with the grade 12 and assist with sanitising. As it relates to the applicant’s absence, no work no pay applies and should an employee stay away from work without permission and that employee receives pay that would amount to stealing.
7.5 Under cross-examination, the witness indicated that he arrived at work on 3 August 2020 at 08h00. The witness conceded that on 3 August 2020 he was aware of the existence of the Gazette. He did not read the Gazette on the 3rd and read it later on.
ANALYSIS OF EVIDENCE AND ARGUMENT
8. The dispute referred is an unfair labour practice relating to benefits. The benefit as I understand relates to whether the applicant was entitled to be remunerated for the period that he was absent from school. In resolving this dispute I’m called on to decide whether terms of Government Gazette notice number 43578 dated 2 August 2020 the applicant was entitled during the period in question not to tender his services. Furthermore, I’m also required to determine whether the applicant was entitled to receive remuneration whilst he was absent from school.
9. In terms of the notice more specifically paragraph 5A that makes provision for school breaks and the arrangement after breaks. The insertion deals with arrangements to be made and in week 2, the period 3 to 7 August 2020 where the following school arrangements are provided for, grade 12 and school of skills, year 4 learners will return to school on 3 August 2020. Grade 12 and school skills, Year 4 teachers (and teacher support staff) will return to school on 3 August 2020. The principal and the school management team (as required) will be in attendance at school. Officials (as identified by the principal and the school management team) will return to school on 3 August 2020, to assist in ensuring compliance with health, safety and social distancing requirements and to assist in the distribution of learning material and the roll out of daily school feeding programs for all qualifying learners. As relates to week 3 dealing with the period 11 to 14 August 2020 it is provided that grade 7 officials (and teacher support staff, will return to school on 11 August 2020. The principal and the school management team,(as required) must be in attendance at school. Officials, who are at school, will assist in ensuring compliance with health, safety and social distancing requirements and assist in the distribution of learning material and the rollout of the daily school feeding programs for all qualified learners. The regulation further provides that despite the above directive in relation to the arrangement after school break, the phase return of learners an official to school will be in accordance with the directive. Upon the return of learners and officials to school after the school break, the school must comply with the social distance and time models, as contemplated in the directive.
10. In studying the Government Gazette notice one cannot ignore the directive for week 2, 3 to 7 August 2020 and Week 3, 11-14 August 2020 that provides that officials as identified by the principal and the school management team will return to school on 3 August 2020 to assist in ensuring compliance with the health, safety and social distancing requirements and to assist in the distribution of learning material on the rollout of the daily school feeding programs for all qualifying learners. As testified by Mr Vilikasi, the principal and other witnesses for the respondent, a decision was taken by the school management team and the principal that they would utilise all the educators to assist and support staff to ensure Covid 19, health and safety protocols are adhered to. The applicant was required to assist in attending to sanitising of classes, learners and to complete the required registers. As testified, it was decided to make the grade 12 classes smaller thereby increasing the number of classes but reducing the amount of learners in each class.
11. It is clear that the regulations considering the powers of the principal and the school management team does not exempt educators such as the applicant from not tendering their services. The applicant on his own version was in contact during the period 4 to 14 August 2020 with his colleagues who informed him that they had been at work every day and nothing had been said regarding the Government Gazette. Therefore, the applicant knew that his colleagues were still at school working and teaching and assisting with duties. I disagree with the applicant’s notion that the directive as per the Government Gazette notice places an onus on the principal and the SMT to requested officials such as the applicant to return to work and therefore officials were not required to seek permission to be absent or to apply for a leave of absence. The applicant was absent from work without leave. When he returned back to school, the applicant was instructed to apply for normal vocation leave, the applicant refused. This clearly in my view amounts to an indulgence. I refer to it as an indulgence in that where an employee is absent from work without leave that employee is not entitled to be remunerated for the period that employee is absent from work without leave. To expect to stay at home and be paid and not utilise your vacation leave whilst your colleagues are working would amount to unfairness towards colleagues.
12. The applicant has referred me to Paragraph H4.2.2of PAM that states “if, after sufficient notice, institution based educator is required by the employer to report for official duty during and institutions closure period outside the schedule working time, he or she will be remunerated additionally for the performance of such duties in terms of the applicable measures in Chapter C. Such remuneration will not apply in respect of voluntary performance of duties by educated during and institutions closure.” The closure referred to in paragraph H4.2.2 is not applicable in that the period in question was not closure periods such as school holidays. Therefore, the specific paragraph is not applicable.
13. I therefore make the following award.
AWARD
14. The applicant, Zola Andrew Jozana has failed to establish that the respondent, Department of Education: KwaZulu – Natal committed an unfair labour practice relating to benefits arising out of the respondent placing the applicant on unpaid leave for the period 4-14 August 2022 when he was absent from work without leave.
15. The applicant is not entitled to any relief.
Name: Jonathan Gruss
(ELRC) Arbitrator
Case No.: ELRC29-21/22KZN
Date of Award: 7 May 2022
In the ARBITRATION between:
Zola Andrew Jozana
(Applicant)
and
Department of Education: Kwazulu-Natal
(Respondent)
Applicant’s representative: In person
Email info@listoz.co.za
Respondent’s representative: Mr Ngcobo
Email: ngcobs67@gmail.com
Summary: Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to benefits deduction of unpaid leave.
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.1.3 of the ELRC Constitution : ELRC Dispute Resolution Procedures (2021). The hearing was held via Zoom (virtual) on 24 February 2022 and 21 April 2022 and the proceedings were electronically recorded. The applicant, Zola Andrew Jozana appeared in person and conducted his own case. The respondent, Department of Education: KwaZulu-Natal was represented by Mr Ngcobo, an Employer Relation Officer. The parties agreed to submit written closing arguments by no later 28 April 2022, only the applicant party filed written closing arguments as agreed.
ISSUE TO BE DECIDED
2. This dispute concerns an alleged unfair labour practice regarding the respondent deducting unpaid leave from the applicant’s wages opposed to implementing paid leave. In determining the issues, I am required to determine whether the applicant based Notice 411 published under Government No. 43578 was entitled to be absent from work from 4 August 2020 to 14 August 2020 and therefore remunerated for the period of his absence.
INTRODUCTION
3. The following were recorded as common cause facts at the commencement of the arbitration:
3.1 The applicant is employed by the respondent as a post level 1 educator at Escort Secondary School earning per annum R298 746.00.
3.2 The applicant had been in the employ of the respondent since 1 July 2015.
3.3 During the period 4 August 2020 to 14 August 2020 the applicant was not at work and was at home.
APPLICANT’S EVIDENCE
4. The applicant testified under oath to the following effect.
4.1 He is an IT teacher at Escort Secondary School teaching technology to grades 8 and 9. Due to Covid 19 lock down regulations the school closed on 18 March 2020 and opened again on 29 May 2020. The grade 12’s were the first learners to return. There was a meeting on 29 May 2020 held in an open space. This meeting was convened by Mr Vilikazi the principal. It was announced at the meeting that Further Education & Training (FET) grades 10 – 12 teachers would assist in teaching grade 12 learners. The individual teachers volunteered.
4.2 On the 8 June 2020 a meeting was held with the grade 8 to 9 teachers, they were asked help with sanitising. He was given class 4A to sanitise. He was asked to help with sanitising with the class teacher. During the week 22 to 26 June 2020 a further meeting was held that resulted in him being moved to room 7 and 8 to deal with sanitising. He was on leave during that time. On Friday, 3 July 2020 there was school management team meeting. He was called to the meeting and asked which subjects he would teach. He offered to teach grade 11 since his major was no longer offered at the school. He offered to teach economics, mathematics and mathematical literacy.
4.3 He was also sent a WhatsApp message from the subject teachers informing him what he would be teaching. He was also allocated the duty to be the class teacher for grade 11C. During the same week he received a text message from the HOD, Mrs Radebe informing him and the department of a teacher who had tested positive for Covid. On Monday, 6 July 2020 there were issues with teachers not wanting to return to school. There was a circular that came from the district office that corroborated and supported the decision taken by the principal. Before they closed on 24 July 2020 he was teaching and they received no circular from the Department.
4.4 On Saturday, 1 August 2020 he received a document which mentioned that other teachers were expected to return on 17 August 2020 and it also mentioned that the Gazette would be issued on 3 August 2020. The Gazette however was issued on 2 August 2020. On the Monday, he went to the school hoping that there would be clarity on the way forward and it was then that he received the Government Gazette. It was at about approximately 11h04 on 3 August 2020 when he received the government Gazette. The principal was not at school at that time, so he spoke to the deputy principal, Ms Ngubane who informed him that there were some schools where teachers were not coming to school. He was happy that she was prepared to say something about a decision taken by the SMT. He told her that he would return to school on 17 August 2020. He also informed his immediate supervisor, the HOD Mr Mtshali to contact him if anything relating to technologies was required from him. During the period 4 to 14 August 2020 he kept himself busy staying in contact with colleagues who had informed him that they were at school working every day and nothing was said about the Government Gazette notice.
4.5 On 14 August 2020 the first meeting was held for the entire staff, he was not at school. At that meeting the principal allegedly instructed that those who are absent must sign leave forms. He was not called to the meeting and there were 3 other teachers who did not come to the school. That being, himself, Ms Mtshali and Mrs Mazibonga. When he returned on Monday, 17 August 2020 at approximately 09h00 Ms Radebi who deals with leave forms requested him to sign leave for the days when he was not at school. He questioned her why she approached him to sign leave forms. He informed her that based on the Government Gazette he was not absent. Ms Radebi then called Mr Msibi, the other deputy principal and Ms Radebi wanted him to repeat what he had told her about signing the leave forms. He did not want to sign the leave forms.
4.6 On 18 August 2020 he again went to speak to Ms Radebi who promised to speak to the principal on his behalf. The principal never got back to him, after two months he requested minutes of the meeting from the school. He wrote a letter on 15 September 2020 requesting the minutes and he was never given the minutes as requested. He then called the leave section who confirmed that they received a letter regarding a leave application by the principal. He then contacted the circuit office and spoke to a Mr Maharaj. When schools closed during the December holidays they are not required to sign leave forms.
4.7 Under cross-examination, the applicant stated that on 3 August 2020 he informed the deputy principal Mr Msibi that based on the lockdown regulations notice he would not be returning to work. The applicant further conceded that when he is not at work the person that he is required to report too is the principal. On a question whether he spoke to the principal, the applicant indicated that he did not ask the principal about the Gazette. He felt that he was not obliged to contact the principal because he was not seeking leave of absence and therefore, there is no need for him to seek permission. He accepted further that during the period 3 to 17 August 2020 he was the only educator who was absent from school. He confirmed further that on 3 August 2020 he left school at approximately 14h30.
RESPONDNET’S EVIDNECE
5. Ms Kanisile Ngubane Sello Mogotsi testified under oath to the following effect.
5.1 He is employed by the respondent as a deputy principal at the Escort Secondary School. He knows the applicant as the educator at the school.
5.2 When the Government Gazette came out he was not aware of the Government Gazette and the applicant did not inform him regarding the Gazette. On the first day that he arrived at the school there was a group of people standing at the office. Should an employee be absent from school she would inform the principal thereof. An educator is supposed to report to the principal not to her. The only time that the educator would report to her is when the principal is not at work. Should an educator be unable to report to the principal directly they must then send him a message. The applicant supervisor on the day was at work and the applicant had no reason to report to her.
5.3 When the principal is not at school the educators then report to her, however the principal Mr Vilikazi was at school. It was suggested to the witness that when the applicant spoke to the witness, the principal was not at school. The response given was that when the principal is at school you have to speak to him, he is head of the institution.
6. Mr Michael Msawenkosi Mtshali testified under oath to the following effect.
6.1 He is employed as a department head supervising technical subjects. He knows the applicant in that the applicant teaches technical subjects to grades 8 – 9. The applicant did not report to him that he would be absent from school. He did not know about the Gazette in that the applicant did not tell him about the Gazette. The applicant also did not phone him. Whenever an educator needs to be absent from school that educator must report to the principal.
6.2 On 3 August 2020 the principal was at school and the applicant is not telling the truth concerning the attendance of the principal. Where educators such as the applicant do not attend school, the children suffer. The applicant was allocated certain duties to attend to.
6.3 Under cross-examination the witness indicated considering circulars that they are only entertained should they come from the principal. He denies that the applicant spoke to him on 3 August 2020 concerning his absence. The procedures prescribe that the applicant should have spoken to the principal. It was suggested to the witness that the applicant forwarded the witness an email containing the Government Gazette notice and the witness acknowledged receipt thereof at 16h06. The witness indicated in response thereof that at that time he was already at home and he received no such document. The applicant was allocated duties to take responsibility of one of the school rooms (class) where he was required to conduct the screening of learners and all teachers were allocated such duties. The applicant was allocated room number 4. On a question by the applicant that when the school was about to close what duties was he (applicant) performing? The witness responded that that when the grade 12 were at school the applicant was allocated duties of sanitising and that subject were allocated to teachers such as the applicant.
7. Mr Isaac Mduduzi Vilikazi testified under oath to the following effect.
7.1 He is principal of Escort Secondary School and has been the principal 25 years. He knows the applicant as an educator that teachers at his school. On 3 August 2020 the applicant was at school that day. He as the Principal was present at school that day and the applicant did not report to him prior to him going home. On the following day, 4 August 2020 the applicant did not report for duties and he was absent from work from 4 to 14 August 2020.
7.2 As it relates to applicant claiming that he received the Government Gazette on 3 August 2020 and that is why he did not come to school, the witness indicated that the applicant never informed him of the Government Gazette, he never reported to him why he is leaving and should an educator be absent from school, that educator must report their absence to him. Educators must phone him should they not be coming to work. Should they (educators) leave school early, they must report to the deputy principal.
7.3 They had to break up the grade 12 classes into smaller classes to comply with Covid 19 regulations therefore ensuring social distancing. The applicant was responsible for sanitising. As to the applicant explaining his absence on his return to school, they have procedures in place and one of the SMT members is responsible to issue leave forms. The applicant refused to complete his leave forms. He was not informed of the reason for the applicant’s absence. As it relates to the existence of the Gazette, they at school are not directed by the Gazette, the respondent as well as the school have their own procedures. The applicant should have come to him to discuss the Gazette with him and not just stay away from work. No one was given permission to stay away from school.
7.4 Considering the applicant alleging that he reported his absence to the chief education specialist, Mr Maharaj from the circuit office and he refused to discuss the incident with Mr Maharaj. The witness explained that the applicant was supposed to have followed the channels of communication and the applicant was busy undermining his authority by not following the channels. As it relates to the applicant claiming that he was not requested to return to school, the witness considered this to be ridiculous in that the applicant was given duties on 8 July 2020. As a principal when educators refused to sign the form he has the authority to sign the leave form on an educator’s behalf. He could have charged the applicant with insubordination for refusing to sign the leave form. Had he allowed the applicant to stay away and not complete the leave form, he would then by implication be allowing other educators to stay away without permission. They needed the support of each staff member to assist with the grade 12 and assist with sanitising. As it relates to the applicant’s absence, no work no pay applies and should an employee stay away from work without permission and that employee receives pay that would amount to stealing.
7.5 Under cross-examination, the witness indicated that he arrived at work on 3 August 2020 at 08h00. The witness conceded that on 3 August 2020 he was aware of the existence of the Gazette. He did not read the Gazette on the 3rd and read it later on.
ANALYSIS OF EVIDENCE AND ARGUMENT
8. The dispute referred is an unfair labour practice relating to benefits. The benefit as I understand relates to whether the applicant was entitled to be remunerated for the period that he was absent from school. In resolving this dispute I’m called on to decide whether terms of Government Gazette notice number 43578 dated 2 August 2020 the applicant was entitled during the period in question not to tender his services. Furthermore, I’m also required to determine whether the applicant was entitled to receive remuneration whilst he was absent from school.
9. In terms of the notice more specifically paragraph 5A that makes provision for school breaks and the arrangement after breaks. The insertion deals with arrangements to be made and in week 2, the period 3 to 7 August 2020 where the following school arrangements are provided for, grade 12 and school of skills, year 4 learners will return to school on 3 August 2020. Grade 12 and school skills, Year 4 teachers (and teacher support staff) will return to school on 3 August 2020. The principal and the school management team (as required) will be in attendance at school. Officials (as identified by the principal and the school management team) will return to school on 3 August 2020, to assist in ensuring compliance with health, safety and social distancing requirements and to assist in the distribution of learning material and the roll out of daily school feeding programs for all qualifying learners. As relates to week 3 dealing with the period 11 to 14 August 2020 it is provided that grade 7 officials (and teacher support staff, will return to school on 11 August 2020. The principal and the school management team,(as required) must be in attendance at school. Officials, who are at school, will assist in ensuring compliance with health, safety and social distancing requirements and assist in the distribution of learning material and the rollout of the daily school feeding programs for all qualified learners. The regulation further provides that despite the above directive in relation to the arrangement after school break, the phase return of learners an official to school will be in accordance with the directive. Upon the return of learners and officials to school after the school break, the school must comply with the social distance and time models, as contemplated in the directive.
10. In studying the Government Gazette notice one cannot ignore the directive for week 2, 3 to 7 August 2020 and Week 3, 11-14 August 2020 that provides that officials as identified by the principal and the school management team will return to school on 3 August 2020 to assist in ensuring compliance with the health, safety and social distancing requirements and to assist in the distribution of learning material on the rollout of the daily school feeding programs for all qualifying learners. As testified by Mr Vilikasi, the principal and other witnesses for the respondent, a decision was taken by the school management team and the principal that they would utilise all the educators to assist and support staff to ensure Covid 19, health and safety protocols are adhered to. The applicant was required to assist in attending to sanitising of classes, learners and to complete the required registers. As testified, it was decided to make the grade 12 classes smaller thereby increasing the number of classes but reducing the amount of learners in each class.
11. It is clear that the regulations considering the powers of the principal and the school management team does not exempt educators such as the applicant from not tendering their services. The applicant on his own version was in contact during the period 4 to 14 August 2020 with his colleagues who informed him that they had been at work every day and nothing had been said regarding the Government Gazette. Therefore, the applicant knew that his colleagues were still at school working and teaching and assisting with duties. I disagree with the applicant’s notion that the directive as per the Government Gazette notice places an onus on the principal and the SMT to requested officials such as the applicant to return to work and therefore officials were not required to seek permission to be absent or to apply for a leave of absence. The applicant was absent from work without leave. When he returned back to school, the applicant was instructed to apply for normal vocation leave, the applicant refused. This clearly in my view amounts to an indulgence. I refer to it as an indulgence in that where an employee is absent from work without leave that employee is not entitled to be remunerated for the period that employee is absent from work without leave. To expect to stay at home and be paid and not utilise your vacation leave whilst your colleagues are working would amount to unfairness towards colleagues.
12. The applicant has referred me to Paragraph H4.2.2of PAM that states “if, after sufficient notice, institution based educator is required by the employer to report for official duty during and institutions closure period outside the schedule working time, he or she will be remunerated additionally for the performance of such duties in terms of the applicable measures in Chapter C. Such remuneration will not apply in respect of voluntary performance of duties by educated during and institutions closure.” The closure referred to in paragraph H4.2.2 is not applicable in that the period in question was not closure periods such as school holidays. Therefore, the specific paragraph is not applicable.
13. I therefore make the following award.
AWARD
14. The applicant, Zola Andrew Jozana has failed to establish that the respondent, Department of Education: KwaZulu – Natal committed an unfair labour practice relating to benefits arising out of the respondent placing the applicant on unpaid leave for the period 4-14 August 2022 when he was absent from work without leave.
15. The applicant is not entitled to any relief.
Name: Jonathan Gruss
(ELRC) Arbitrator