ELRC160-21/22NC
Text
ELRC160-21/22NC
Award Date:
30 June 2022
Commissioner: Eva Ngobeni
Case No: ELRC160-21/22NC
Date of Award: 30 June 2022
In the Dispute between:
PSA obo Legoshe, G
(Applicant)
And
Department of Education (Northern Cape)
(Respondent)
Applicant’s representative: Christopher Oliphant (PSA official)
E-mail:
Fax:
Contact number:
Respondent’s representative: Gavin George (Employee of the Respondent)
E-mail:
Fax:
Contact number:
DETAILS OF HEARING AND REPRESENTATION
1. This matter was heard virtually on the 06th of April and 06 June 2022. Both parties were in attendance and representation from all parties is as indicated above. Both parties submitted bundle of documents in support of their case. Parties agreed to submit written closing arguments by no later than the 17th of June 2022.
BACKGROUND OF THE DISPUTE
2. The Applicant was employed by the Department of Education Northern Cape as a Principal at Homevale High School on the 01 January 2018. He was transferred from Principal post level 4(School-based) to the Provincial office into post level three as a Senior Education Specialist (Office-based), with effect from the 01st of March 2021.
3. Prior to his transfer, the Applicant was consulted for two other posts for Labour Relations, which he declined to accept. He was placed into the current post after signing an acceptance letter. The Applicant’s salary is not affected by the transfer.
ISSUE FOR DETERMINATION
4. I must determine whether the Respondent’s conduct to transfer the Applicant to a Senior Education Specialist: post level 3, amounts to an unfair labour practice relating to demotion when considering the following factors:
a) whether there was consultation preceding the transfer.
b) whether the Applicant accepted the offer of transfer under duress.
c) Whether the changes of the Applicant’s level from four to three amount to a demotion in rank and/or status.
5. If the Respondent’s act amounts to unfair labour practice, I must determine the appropriate remedy.
SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant led the evidence of four (4) witnesses– only salient points are outlined:
6. The Applicant testified that he is employed in a position of Senior Educational Specialist. He was transferred by the Department from Homevale to a post he currently occupies. He was not consulted for the post at which he is placed but consultation was only on the positions he rejected. He rejected the offer made because it could have led to a disintegration of his family. He was informed that his transfer would not be to a level 5 because he would request for an increase of six notches in line with the level. Subsequently, he received a letter of offer requiring him to either accept or reject the offer presented to him by the clerk. He accepted the transfer because he has been out of employment for the past three (3) years.
7. He made an insertion on the letter that he was accepting an offer to return to work but was not accepting a demotion. On his return to the office, he wrote a letter of dispute to the Labour Relations Office. He had an issue with the level at which he was placed. Therefore, he accepted the transfer to school development under duress because had he not accepted the post, he would have been at home forever. He currently reports to his colleague who was a principal. He is qualified to conduct investigations and attend to labour related matters. Where he is placed, the work does not match the training and qualifications he has.
8. He is demoted because his current rank is lower than his previous rank. At the time he was a principal, he had one thousand and four hundred learners reporting to him. There were 39 teachers, two (2) deputy principals and five Heads of Department at post level 2. He was also responsible for the discipline of teachers. He had a blueprint on what needed to be implemented and there was resistance from the staff members. He interacted with churches because gangsterism was rife at the school. He also approached correctional services to clean up the school. His scope of functions has been narrowed because his primarily focus is on private schools within the province.
9. He engages principals at the school for monitoring. He writes a report on compliance or non-compliance issues. His visit to a school is once a year. He can no longer operate within the community. At the school, he had a huge budget for feeding schemes and committee of teachers for maintenance issues. Under cross-examination he conceded that had he reject an offer made, transfer could not have been effected. He argued to have accepted the offer partially with a condition that he was not happy with the level of the post offered. When asked on why he did not choose to decline the offer his response was that there was a delay in effecting his transfer.
10. He was placed at home for over five months hence he accepted the transfer so as he does not become frustrated staying at home. He conceded that had he not accepted the offer, the department could have continued to engage him on alternative placement. He argued that there was no urgency on the department to place him hence he opted to accept the offer. The reason for which he could not be offered a higher-level post was because he would have claimed six notches in increment. He acknowledged that the Head of Department, after due consultation may transfer an educator. He could not respond when asked on whether his salary and terms of service has been affected by the transfer.
11. He conceded that he was responsible for the management of Homevale School. He communicated with the district and in some instances liaised with the province. The district is the most relevant as a reporting line. When asked on why his job description does not outline his limited duties to the independent schools his response was that he is assigned to attend to independent schools but does offer assistance when necessary. He argued that he is not confined to independent schools, he also oversees the section on home education. A version was put to him that his job description entails his involvement in rural schools’ development and facilitation of development of schools. His response was that the responsibility is shifted to inclusive section.
12. He does not dispute that on signing the offer of acceptance, this was binding on him. The changes to the scope of work is the responsibility of the Director in charge of the department. However, the changes are not documented. He agreed with the version that his span of control has extended to the whole province. He argued that he is placed on a rank lower than the one he occupied as a principal. He accepted the transfer but not the rank. His acceptance of the offer to transfer was under duress because he was at home for twenty four months. The transfer was not initiated by him. His supervisor is appointed at level 5 whilst he is at post level 3.
Denise Eilers testified as follows:
13. She was employed as a Principal post level 3 in November 2020 at the Inclusive unit District Office. The level of the post was upgraded, and she was not appointed. She lodged a dispute with the Council. The matter was settled, and she was placed at the district offices. The settlement agreement provided that she be appointed at post level 5. After her appointment, she received a six-notch salary increase. The notches are based on years of experience. She was appointed at that level because they had already appointed someone else on the position. Should they have kept her at the school, there would have been two principals.
14. Under cross-examination she conceded that her position was upgraded to post level 5 because she was not appointed at post level 4. She conceded that her case is not similar to that of the Applicant because hers was a promotion. There was no issue of transfer.
Abraham Morris testified as follows:
15. He was employed as a Principal at post level 4 from 01 January 2011 until December 2014. He is currently employed at the head office as Deputy Chief Education Specialist, post level 5. He was transferred from school to the district office, from post level 4 to 5. He did not apply for the transfer and was not kept at post level 4. There are three people reporting to him and these vacancies are not filled. The Applicant reports to him as a Senior Education Specialist post level 3. There is a clear distinction between a Chief Education Specialist and a Principal. There is no post level 4 at the head office.
16. A version was put to him that prior to February 2016, Personnel Administration Measures (PAM) was not amended, and his post was a level 4; his response was that he was transferred to the district office as a Deputy Chief Specialist. He stated that he was not aware that with the amendment of PAM, there is no longer a post on level 4 for office-based. When a version was put to him that this made it impossible for the Applicant to be transferred lateral into an office-based environment he stated that he is not prepared to respond to this.
Lebogang Diutlwileng testified as follows:
17. He is employed as the Deputy Principal at post level 3. He attended a meeting with the Applicant and Moreothata, to discuss the Applicant’s transfer to the office. During the meeting, the Applicant was informed that he is given a Senior Education Specialist. The Applicant was not willing to accept the position offered because it was low in rank. At the offices, there is no post level 4 as presented during the meeting. At the district office, there is nothing equivalent to post level 4. The Respondent refused to offer the Applicant post level 5 because he would have demanded six notches increment.
18. Under cross-examination he stated that he attended the meetings scheduled as the Applicant’s representative. He did not go through the entire process of transferring the Applicant. There is no reason on why the Applicant should be demoted. When a version was put to him that the Applicant accepted the transfer he stated that he does not have details on what was placed before the Applicant. A version was put to him that an acceptance of an offer binds the Applicant to the position; his response was that he does not know on what persuaded the Applicant to sign because he (the witness) was not in a meeting and does not know the contents of the contract.
The Respondent led the evidence of one (1) witness:
19. Thomas van Staden testified as follows: He is employed as a Chief Director responsible for Human resource Management. The Applicant is an employee of the department dealing with Farm and Rural School strategy. He (the Applicant) was previously appointed as a Principal at Homevale High School. As a principal, the Applicant spent less than six months at the school due to having an acrimonious start at the school. Thereafter, he was booked off due to temporary incapacity. As a result of incidences at the school, the Applicant lodged a grievance which was investigated by the Labour Relations Office. At the time of the investigation, the Applicant was booked off work due to stress.
20. The investigation was suspended pending the Applicant’s return to the office. During the Applicant’s absence, the school remained unstable, and the Deputy Principal could also not assist the situation. Thereafter, the Applicant was placed on special leave from January until March. The special leave was extended because the investigation was not concluded. Subsequently, the Applicant was issued with a letter requiring him to provide reasons on why his services should not be terminated. The Applicant and staff members at the school had serious differences. During the period at which the Applicant was a principal at the school, there were disruptions at the school plagued with in-fighting.
21. At the time of this incidents, the Applicant was on probation. There was an incompatibility issue at play. It became apparent that if he was to continue working at the school, instability would have persisted. On making representation, the Applicant did not address the issues that were concerning but outlined his own concerns which became an extension of a grievance. After due consideration, his employment was terminated on the 01st of September 2019. Even so, his remuneration was not stopped until he was reinstated on same terms and conditions by the MEC. Subsequently, he was not reinstated to Homevale as a Principal.
22. Instead, the Respondent undertook a placement process in consultation with the Applicant and his representative. There were three positions identified: Labour Relations post; a post dealing with SGB and the one dealing with farms and rural areas. The best possible placement for the Applicant could have been a Principal position. This became a mammoth task because the Schools Act places the responsibility to appoint a principal squarely in the hands of the School Governing Body. There should be an agreement reached with the SGB for such a placement to happen. A lateral placement was found for the Applicant in school development and support wherein his condition of employment and salary was not affected.
23. Post dispensations for school-based positions is not the same with the office-based posts. The Applicant was presented with an offer of transfer, which he accepted. The Applicant had no option to amend the terms of an offer. On declining the offer, the Applicant would have outlined the reasons he was not accepting the officer. Eliers’ case is not similar to that of the Applicant in that she (Eliers) lodged an unfair labour practice relating to promotion dispute with the Council, challenging her non-appointment into a position. Eliers was appointed into a promotion position subsequent to an outcome of an arbitration proceedings. Hence her dispute was a promotion and the Applicant’s dispute relates to a transfer.
24. The other employee, Morris, is a former employee whose transfer was unrelated to a disgruntlement at a school. Morris was transferred as a Principal to the District office in line with the administration applicable at the time. PAM was gazette in 2016 which became a preclusion for the Applicant to be transferred to a higher graded position. Transferring the Applicant into a DCS posts amount to a promotion as per legislation. There were dates set for consultation with the Applicant and the HOD. The Applicant was transferred to the Provincial office. The description and roles are not the same between school level and Provincial level. At school level one deals with implementation, whilst at Provincial level – he deals with policy development. The Applicant is elevated in terms of structure because he attends to different schools. He speaks to Principals and provides directions to them.
25. Under cross-examination he argued that the Applicant signed a job description after accepting the offer. The process of placement was concluded after a lengthy engagement with the Applicant. According to the letter on page 102 of the Applicant’s bundle, the Applicant lodged his disgruntlement in December 2020 and signed a letter of acceptance in March 2021. He argued that Eliers was not transferred but promoted. Morris was transferred under PAM which currently restricts for same to happen to the Applicant. When a version was put to him that the Applicant was demoted because he was transferred into post level 3 other than a 4 his response was that in the process of finding a suitable placement for an employee, the Applicant’s salary and condition of service were not affected.
26. If the Applicant was placed on a DCS post, his level could have been higher and PAM prescribes that if so placed, he should receive six notches in remuneration. The Applicant has been transferred to a specialist post level 3 which is not a demotion in terms of the office-based salary scale. PAM indicates that for a promotion, there must be a competitive process for appointment at a higher level. The Applicant’s current role is not comparable to that of a Deputy Principal. The job description of a Deputy Principal is linked only to a particular school whilst a senior education Specialist focuses on the number of schools within provincial office. A specialist is responsible for policy direction and formulation at Provincial level.
27. The Applicant issues instructions to the schools and to Principals at level 4. When PAM was amended, it made a distinction between school level and Provincial level positions. For the Applicant, one needed to facilitate a lateral transfer and at Provincial office, there is no level 4. One had to check the salary range and the Applicant was placed within the position of an Education Specialist. The Applicant is senior to all Principals at school level. The level has no context without a responsibility. A post level is not isolated from the nature of work which one performs. When the Applicant was transferred to the Provincial office, there was no need to advantage or disadvantage him.
28. The policy document does not only relate to a numerical context. He disputed the version that the Applicant was demoted due to level differentials. He stated that he was not part of the consultation process when he was told that the Applicant was not consulted on a post of Senior Education Specialist but consulted for a Labour Relations position. He argued that the Applicant should indicate that he was not consulted on the final placement. There were various meetings held to engage the Applicant pertaining to the transfer. When consulting an employee prior to placement, the Respondent assesses the Applicant’s profile, qualifications, relevant experience. A list is compiled on relevant areas of specialization.
ANALYSIS OF EVIDENCE AND ARGUMENT
29. Section 186 (2) of the Labour Relations Act stipulates that “Unfair labour practice” means an unfair act or omission that arises between an employer and an employee involving _
a) Unfair conduct by an employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
30. The onus to prove the unfair labour practice rests with the Applicant. It is common cause that the Applicant was employed as a principal, post level 4 at the school. He was transferred to the provincial office as a Senior Education Specialist, post level 3. The Applicant testified that he is demoted because his level is lower at the provincial office. He argued that his responsibilities have been affected because as a principal he was accountable for the school, learners and educators. He held engagements with the community, manages discipline and budget at the school.
31. As a result, his scope of functions has been narrowed because his primary focus is on private schools and home education. He engages schools for monitoring and writes a report thereafter. His visit to the schools happens once a year. He conceded that his span of control extends to the whole province. The Respondent’s witness testified that post dispensation of schools is distinct to office-based posts. The description and roles are not the same between school based and office-based posts. At school level, one deals with implementation whilst at Provincial level he deals with policy development. Accordingly, the highest post at schools is that of a principal at post level 4. There is no post level 4 at the provincial office. Office-based posts starts from level 3, with no level 4. Thereafter a post level 5 which is tantamount to promotion which necessitates a six-notch increment.
32. The Respondent argued that the Applicant’s salary and terms of service remained the same regardless of his placement at post level 3. He further argued that the Applicant is elevated in terms of structure because he attends to different schools. He provides direction to Principals at the schools. It is common cause that the Head of Department may transfer an educator after due consultation. It is evident from parties’ submissions that the Applicant’s position of Senior Education Specialist’s core responsibility is that of the provision of guidance and support to Principals throughout the Province for independent schools and /or home-based education. When the two roles are compared, it became apparent that the Applicant had a far greater responsibility and control as a principal as compared to the post he currently occupies. This is also emphasised by the level differentiation (level 4 – level 3) between the two roles. Therefore, I find that there is a diminution of status and power which constitutes a demotion.
33. It is common cause that the Applicant’s salary and terms of service was not affected by the demotion. Instead, the discrepancy only extends to the Applicant being placed on a level lower than the principal post and the job description related thereto. It is further common cause that implementation of the transfer into the current position was as a result of the Applicant’s acceptance of an offer into the new position. Although the Applicant argued to have accepted this offer with reservations, I am alive to the fact that he had an option to accept or decline the offer to allow for the Respondent to explore other alternatives.
34. It is trite law that acceptance of an offer on a lower level does not translates to fair labour practice in demotion. However, his acceptance of the offer mitigates the prejudice suffered as a result thereof. The Applicant accepted the position well knowing that the level was lower. By his own admission, he testified that he accepted the offer because he was placed at home for a long time and did not want to get frustrated staying at home. This, the Applicant did with the view to challenge the placement later. I accepted the justification from the Respondent that the Applicant could not be placed on level 5 because the intention of the transfer is not to advantage or disadvantage the Applicant. More so, the prescription of PAM precludes for such placement.
35. I agree with the Respondent’s assertion that the best placement for the Applicant could have been in a position of a principal. It is understood that this placement became a mammoth task hence the delay in finalising the placement. I am of the view that this is not impossible and can be explored. In the alternative, the Respondent can place the Applicant on a position equivalent to a level of a principal. The Applicant sought compensation as a relief. Having considered the fact that the Applicant accepted the offer regardless of it being on a lower level, and that throughout the demotion, he received the same remuneration for post level 4, I find it just and equitable not to award any compensation. Therefore, I order as follows:
AWARD
36. The Respondent, Department of Education (Northern Cape), is ordered to find an alternative placement for the Applicant, Legoshe George, which is equivalent to level 4 by no later than 01 September 2022.
Thus done and signed in Johannesburg on 30 June 2022
ELRC Panellist
Evah T. Ngobeni
Case No: ELRC160-21/22NC
Date of Award: 30 June 2022
In the Dispute between:
PSA obo Legoshe, G
(Applicant)
And
Department of Education (Northern Cape)
(Respondent)
Applicant’s representative: Christopher Oliphant (PSA official)
E-mail:
Fax:
Contact number:
Respondent’s representative: Gavin George (Employee of the Respondent)
E-mail:
Fax:
Contact number:
DETAILS OF HEARING AND REPRESENTATION
1. This matter was heard virtually on the 06th of April and 06 June 2022. Both parties were in attendance and representation from all parties is as indicated above. Both parties submitted bundle of documents in support of their case. Parties agreed to submit written closing arguments by no later than the 17th of June 2022.
BACKGROUND OF THE DISPUTE
2. The Applicant was employed by the Department of Education Northern Cape as a Principal at Homevale High School on the 01 January 2018. He was transferred from Principal post level 4(School-based) to the Provincial office into post level three as a Senior Education Specialist (Office-based), with effect from the 01st of March 2021.
3. Prior to his transfer, the Applicant was consulted for two other posts for Labour Relations, which he declined to accept. He was placed into the current post after signing an acceptance letter. The Applicant’s salary is not affected by the transfer.
ISSUE FOR DETERMINATION
4. I must determine whether the Respondent’s conduct to transfer the Applicant to a Senior Education Specialist: post level 3, amounts to an unfair labour practice relating to demotion when considering the following factors:
a) whether there was consultation preceding the transfer.
b) whether the Applicant accepted the offer of transfer under duress.
c) Whether the changes of the Applicant’s level from four to three amount to a demotion in rank and/or status.
5. If the Respondent’s act amounts to unfair labour practice, I must determine the appropriate remedy.
SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant led the evidence of four (4) witnesses– only salient points are outlined:
6. The Applicant testified that he is employed in a position of Senior Educational Specialist. He was transferred by the Department from Homevale to a post he currently occupies. He was not consulted for the post at which he is placed but consultation was only on the positions he rejected. He rejected the offer made because it could have led to a disintegration of his family. He was informed that his transfer would not be to a level 5 because he would request for an increase of six notches in line with the level. Subsequently, he received a letter of offer requiring him to either accept or reject the offer presented to him by the clerk. He accepted the transfer because he has been out of employment for the past three (3) years.
7. He made an insertion on the letter that he was accepting an offer to return to work but was not accepting a demotion. On his return to the office, he wrote a letter of dispute to the Labour Relations Office. He had an issue with the level at which he was placed. Therefore, he accepted the transfer to school development under duress because had he not accepted the post, he would have been at home forever. He currently reports to his colleague who was a principal. He is qualified to conduct investigations and attend to labour related matters. Where he is placed, the work does not match the training and qualifications he has.
8. He is demoted because his current rank is lower than his previous rank. At the time he was a principal, he had one thousand and four hundred learners reporting to him. There were 39 teachers, two (2) deputy principals and five Heads of Department at post level 2. He was also responsible for the discipline of teachers. He had a blueprint on what needed to be implemented and there was resistance from the staff members. He interacted with churches because gangsterism was rife at the school. He also approached correctional services to clean up the school. His scope of functions has been narrowed because his primarily focus is on private schools within the province.
9. He engages principals at the school for monitoring. He writes a report on compliance or non-compliance issues. His visit to a school is once a year. He can no longer operate within the community. At the school, he had a huge budget for feeding schemes and committee of teachers for maintenance issues. Under cross-examination he conceded that had he reject an offer made, transfer could not have been effected. He argued to have accepted the offer partially with a condition that he was not happy with the level of the post offered. When asked on why he did not choose to decline the offer his response was that there was a delay in effecting his transfer.
10. He was placed at home for over five months hence he accepted the transfer so as he does not become frustrated staying at home. He conceded that had he not accepted the offer, the department could have continued to engage him on alternative placement. He argued that there was no urgency on the department to place him hence he opted to accept the offer. The reason for which he could not be offered a higher-level post was because he would have claimed six notches in increment. He acknowledged that the Head of Department, after due consultation may transfer an educator. He could not respond when asked on whether his salary and terms of service has been affected by the transfer.
11. He conceded that he was responsible for the management of Homevale School. He communicated with the district and in some instances liaised with the province. The district is the most relevant as a reporting line. When asked on why his job description does not outline his limited duties to the independent schools his response was that he is assigned to attend to independent schools but does offer assistance when necessary. He argued that he is not confined to independent schools, he also oversees the section on home education. A version was put to him that his job description entails his involvement in rural schools’ development and facilitation of development of schools. His response was that the responsibility is shifted to inclusive section.
12. He does not dispute that on signing the offer of acceptance, this was binding on him. The changes to the scope of work is the responsibility of the Director in charge of the department. However, the changes are not documented. He agreed with the version that his span of control has extended to the whole province. He argued that he is placed on a rank lower than the one he occupied as a principal. He accepted the transfer but not the rank. His acceptance of the offer to transfer was under duress because he was at home for twenty four months. The transfer was not initiated by him. His supervisor is appointed at level 5 whilst he is at post level 3.
Denise Eilers testified as follows:
13. She was employed as a Principal post level 3 in November 2020 at the Inclusive unit District Office. The level of the post was upgraded, and she was not appointed. She lodged a dispute with the Council. The matter was settled, and she was placed at the district offices. The settlement agreement provided that she be appointed at post level 5. After her appointment, she received a six-notch salary increase. The notches are based on years of experience. She was appointed at that level because they had already appointed someone else on the position. Should they have kept her at the school, there would have been two principals.
14. Under cross-examination she conceded that her position was upgraded to post level 5 because she was not appointed at post level 4. She conceded that her case is not similar to that of the Applicant because hers was a promotion. There was no issue of transfer.
Abraham Morris testified as follows:
15. He was employed as a Principal at post level 4 from 01 January 2011 until December 2014. He is currently employed at the head office as Deputy Chief Education Specialist, post level 5. He was transferred from school to the district office, from post level 4 to 5. He did not apply for the transfer and was not kept at post level 4. There are three people reporting to him and these vacancies are not filled. The Applicant reports to him as a Senior Education Specialist post level 3. There is a clear distinction between a Chief Education Specialist and a Principal. There is no post level 4 at the head office.
16. A version was put to him that prior to February 2016, Personnel Administration Measures (PAM) was not amended, and his post was a level 4; his response was that he was transferred to the district office as a Deputy Chief Specialist. He stated that he was not aware that with the amendment of PAM, there is no longer a post on level 4 for office-based. When a version was put to him that this made it impossible for the Applicant to be transferred lateral into an office-based environment he stated that he is not prepared to respond to this.
Lebogang Diutlwileng testified as follows:
17. He is employed as the Deputy Principal at post level 3. He attended a meeting with the Applicant and Moreothata, to discuss the Applicant’s transfer to the office. During the meeting, the Applicant was informed that he is given a Senior Education Specialist. The Applicant was not willing to accept the position offered because it was low in rank. At the offices, there is no post level 4 as presented during the meeting. At the district office, there is nothing equivalent to post level 4. The Respondent refused to offer the Applicant post level 5 because he would have demanded six notches increment.
18. Under cross-examination he stated that he attended the meetings scheduled as the Applicant’s representative. He did not go through the entire process of transferring the Applicant. There is no reason on why the Applicant should be demoted. When a version was put to him that the Applicant accepted the transfer he stated that he does not have details on what was placed before the Applicant. A version was put to him that an acceptance of an offer binds the Applicant to the position; his response was that he does not know on what persuaded the Applicant to sign because he (the witness) was not in a meeting and does not know the contents of the contract.
The Respondent led the evidence of one (1) witness:
19. Thomas van Staden testified as follows: He is employed as a Chief Director responsible for Human resource Management. The Applicant is an employee of the department dealing with Farm and Rural School strategy. He (the Applicant) was previously appointed as a Principal at Homevale High School. As a principal, the Applicant spent less than six months at the school due to having an acrimonious start at the school. Thereafter, he was booked off due to temporary incapacity. As a result of incidences at the school, the Applicant lodged a grievance which was investigated by the Labour Relations Office. At the time of the investigation, the Applicant was booked off work due to stress.
20. The investigation was suspended pending the Applicant’s return to the office. During the Applicant’s absence, the school remained unstable, and the Deputy Principal could also not assist the situation. Thereafter, the Applicant was placed on special leave from January until March. The special leave was extended because the investigation was not concluded. Subsequently, the Applicant was issued with a letter requiring him to provide reasons on why his services should not be terminated. The Applicant and staff members at the school had serious differences. During the period at which the Applicant was a principal at the school, there were disruptions at the school plagued with in-fighting.
21. At the time of this incidents, the Applicant was on probation. There was an incompatibility issue at play. It became apparent that if he was to continue working at the school, instability would have persisted. On making representation, the Applicant did not address the issues that were concerning but outlined his own concerns which became an extension of a grievance. After due consideration, his employment was terminated on the 01st of September 2019. Even so, his remuneration was not stopped until he was reinstated on same terms and conditions by the MEC. Subsequently, he was not reinstated to Homevale as a Principal.
22. Instead, the Respondent undertook a placement process in consultation with the Applicant and his representative. There were three positions identified: Labour Relations post; a post dealing with SGB and the one dealing with farms and rural areas. The best possible placement for the Applicant could have been a Principal position. This became a mammoth task because the Schools Act places the responsibility to appoint a principal squarely in the hands of the School Governing Body. There should be an agreement reached with the SGB for such a placement to happen. A lateral placement was found for the Applicant in school development and support wherein his condition of employment and salary was not affected.
23. Post dispensations for school-based positions is not the same with the office-based posts. The Applicant was presented with an offer of transfer, which he accepted. The Applicant had no option to amend the terms of an offer. On declining the offer, the Applicant would have outlined the reasons he was not accepting the officer. Eliers’ case is not similar to that of the Applicant in that she (Eliers) lodged an unfair labour practice relating to promotion dispute with the Council, challenging her non-appointment into a position. Eliers was appointed into a promotion position subsequent to an outcome of an arbitration proceedings. Hence her dispute was a promotion and the Applicant’s dispute relates to a transfer.
24. The other employee, Morris, is a former employee whose transfer was unrelated to a disgruntlement at a school. Morris was transferred as a Principal to the District office in line with the administration applicable at the time. PAM was gazette in 2016 which became a preclusion for the Applicant to be transferred to a higher graded position. Transferring the Applicant into a DCS posts amount to a promotion as per legislation. There were dates set for consultation with the Applicant and the HOD. The Applicant was transferred to the Provincial office. The description and roles are not the same between school level and Provincial level. At school level one deals with implementation, whilst at Provincial level – he deals with policy development. The Applicant is elevated in terms of structure because he attends to different schools. He speaks to Principals and provides directions to them.
25. Under cross-examination he argued that the Applicant signed a job description after accepting the offer. The process of placement was concluded after a lengthy engagement with the Applicant. According to the letter on page 102 of the Applicant’s bundle, the Applicant lodged his disgruntlement in December 2020 and signed a letter of acceptance in March 2021. He argued that Eliers was not transferred but promoted. Morris was transferred under PAM which currently restricts for same to happen to the Applicant. When a version was put to him that the Applicant was demoted because he was transferred into post level 3 other than a 4 his response was that in the process of finding a suitable placement for an employee, the Applicant’s salary and condition of service were not affected.
26. If the Applicant was placed on a DCS post, his level could have been higher and PAM prescribes that if so placed, he should receive six notches in remuneration. The Applicant has been transferred to a specialist post level 3 which is not a demotion in terms of the office-based salary scale. PAM indicates that for a promotion, there must be a competitive process for appointment at a higher level. The Applicant’s current role is not comparable to that of a Deputy Principal. The job description of a Deputy Principal is linked only to a particular school whilst a senior education Specialist focuses on the number of schools within provincial office. A specialist is responsible for policy direction and formulation at Provincial level.
27. The Applicant issues instructions to the schools and to Principals at level 4. When PAM was amended, it made a distinction between school level and Provincial level positions. For the Applicant, one needed to facilitate a lateral transfer and at Provincial office, there is no level 4. One had to check the salary range and the Applicant was placed within the position of an Education Specialist. The Applicant is senior to all Principals at school level. The level has no context without a responsibility. A post level is not isolated from the nature of work which one performs. When the Applicant was transferred to the Provincial office, there was no need to advantage or disadvantage him.
28. The policy document does not only relate to a numerical context. He disputed the version that the Applicant was demoted due to level differentials. He stated that he was not part of the consultation process when he was told that the Applicant was not consulted on a post of Senior Education Specialist but consulted for a Labour Relations position. He argued that the Applicant should indicate that he was not consulted on the final placement. There were various meetings held to engage the Applicant pertaining to the transfer. When consulting an employee prior to placement, the Respondent assesses the Applicant’s profile, qualifications, relevant experience. A list is compiled on relevant areas of specialization.
ANALYSIS OF EVIDENCE AND ARGUMENT
29. Section 186 (2) of the Labour Relations Act stipulates that “Unfair labour practice” means an unfair act or omission that arises between an employer and an employee involving _
a) Unfair conduct by an employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
30. The onus to prove the unfair labour practice rests with the Applicant. It is common cause that the Applicant was employed as a principal, post level 4 at the school. He was transferred to the provincial office as a Senior Education Specialist, post level 3. The Applicant testified that he is demoted because his level is lower at the provincial office. He argued that his responsibilities have been affected because as a principal he was accountable for the school, learners and educators. He held engagements with the community, manages discipline and budget at the school.
31. As a result, his scope of functions has been narrowed because his primary focus is on private schools and home education. He engages schools for monitoring and writes a report thereafter. His visit to the schools happens once a year. He conceded that his span of control extends to the whole province. The Respondent’s witness testified that post dispensation of schools is distinct to office-based posts. The description and roles are not the same between school based and office-based posts. At school level, one deals with implementation whilst at Provincial level he deals with policy development. Accordingly, the highest post at schools is that of a principal at post level 4. There is no post level 4 at the provincial office. Office-based posts starts from level 3, with no level 4. Thereafter a post level 5 which is tantamount to promotion which necessitates a six-notch increment.
32. The Respondent argued that the Applicant’s salary and terms of service remained the same regardless of his placement at post level 3. He further argued that the Applicant is elevated in terms of structure because he attends to different schools. He provides direction to Principals at the schools. It is common cause that the Head of Department may transfer an educator after due consultation. It is evident from parties’ submissions that the Applicant’s position of Senior Education Specialist’s core responsibility is that of the provision of guidance and support to Principals throughout the Province for independent schools and /or home-based education. When the two roles are compared, it became apparent that the Applicant had a far greater responsibility and control as a principal as compared to the post he currently occupies. This is also emphasised by the level differentiation (level 4 – level 3) between the two roles. Therefore, I find that there is a diminution of status and power which constitutes a demotion.
33. It is common cause that the Applicant’s salary and terms of service was not affected by the demotion. Instead, the discrepancy only extends to the Applicant being placed on a level lower than the principal post and the job description related thereto. It is further common cause that implementation of the transfer into the current position was as a result of the Applicant’s acceptance of an offer into the new position. Although the Applicant argued to have accepted this offer with reservations, I am alive to the fact that he had an option to accept or decline the offer to allow for the Respondent to explore other alternatives.
34. It is trite law that acceptance of an offer on a lower level does not translates to fair labour practice in demotion. However, his acceptance of the offer mitigates the prejudice suffered as a result thereof. The Applicant accepted the position well knowing that the level was lower. By his own admission, he testified that he accepted the offer because he was placed at home for a long time and did not want to get frustrated staying at home. This, the Applicant did with the view to challenge the placement later. I accepted the justification from the Respondent that the Applicant could not be placed on level 5 because the intention of the transfer is not to advantage or disadvantage the Applicant. More so, the prescription of PAM precludes for such placement.
35. I agree with the Respondent’s assertion that the best placement for the Applicant could have been in a position of a principal. It is understood that this placement became a mammoth task hence the delay in finalising the placement. I am of the view that this is not impossible and can be explored. In the alternative, the Respondent can place the Applicant on a position equivalent to a level of a principal. The Applicant sought compensation as a relief. Having considered the fact that the Applicant accepted the offer regardless of it being on a lower level, and that throughout the demotion, he received the same remuneration for post level 4, I find it just and equitable not to award any compensation. Therefore, I order as follows:
AWARD
36. The Respondent, Department of Education (Northern Cape), is ordered to find an alternative placement for the Applicant, Legoshe George, which is equivalent to level 4 by no later than 01 September 2022.
Thus done and signed in Johannesburg on 30 June 2022
ELRC Panellist
Evah T. Ngobeni