ELRC947-21/22KZN
Text
ELRC947-21/22KZN
Award Date:
11 July 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD VIRTUALLY ON 28 JUNE 2022
Case Number: ELRC947-21/22KZN
Arbitrator: Moraka Abel Makgaa
Date:11 July 2022
In the matter between: -
National Teachers Union obo Ntanzi Dumisani Cyril Applicant
And
Education Department of KwaZulu-Natal Respondent
ARBITRATION AWARD
DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The employee was present and represented by Dr TJ Xulu from National Teachers Union (“NATU”) whereas the respondent was represented by Mr Mzamo Ndlovu, Deputy Director:HRM.
2 The applicant submitted two bundles of documents marked as Bundle A, pages 1-25, and Bundle B made up of pages 26 to 48. The applicant did not submit any documents.
3 The proceedings were digitally recorded. The parties were given the opportunity to submit written closing arguments. The only written submissions which were received are those submitted obo the respondent, and they have been taken into consideration in arriving at the conclusions herein.
ISSUES TO BE DECIDED
4 I was called upon to determine whether the declaration of the applicant as being additional to the establishment was done in accordance with the provisions of the ELRC Resolution 4 of 1996 read with the provisions of the relevant and the Departmental HRM Circulars. If it is found that the respondent has flouted the Collective Agreement or its own procedure manual, an appropriate remedy will be granted.
INTRODUCTION AND BACKGROUND
5 The history and development of this dispute is captured in the pre-arbitration minutes compiled and signed by the parties with the assistance of myself. We reverted to the pre-arbitration meeting with consent of the parties. The common cause issues can be summarizedas follows:
5.1 The applicant is a permanently appointed CS1 educator based at Vezinhlahla Primary School (“Vezinhlahla”) under the jurisdiction of the respondent. He has occupied this position since 12/05/2002.The respondent issued HRMR Circular No.61 of 2020 concerning implementation of PPN in school over a three year cycle commencing in 2021.
5.2 The school conducted the matching and absorption process on 03/12/2020, and the applicant was one of the educators declared in excess of the establishment on account of curriculum needs of the school. The applicant was teaching Social Sciences in Grades 8 and 9. He was also teaching Creative Arts in Grades 7 and 8, and Life Orientation in Grades 7 and 8. Grades 8 and 9 were phased out at the school effective from 2021. According to the procedure manual, duty load of subjects taught in the previous year is a determining factor, and this done as per the phases in Primary Schools.
5.3 Aggrieved by the outcome of the matching and absorption process, the applicant lodged a grievance on 18/02/2021.The applicant alleged that paragraphs 4.1.1 and 4.4.6 of the procedure manual were contravened. A grievance hearing meeting was held on 11/03/2021 where the applicant’s grievance was dismissed. The outcome of the grievance meeting was communicated to the applicant and his union representative in a letter dated 25/03/2021, which was sent through an email.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
6 Ntanzi Pholi Dumisani Cyril (the applicant) was the only witness who testified in his own case. His testimony can be summarized as follows. His relationship with the principal was sour, and the principal has because of this used the process of matching and placement as a punitive measure against him. The process which was conducted on 03 December 2020 was unfair towards him because of the following reasons. There were no pre-meetings of the School Management Team (“SMT”), other members of the SMT were either not present or did not participate during the staff meeting of 03 December 2020, eg Mr Tshabalala was not invited to the meeting, the principal did not ask as to whether there were those amongst the staff who may have volunteered to be declared in excess, Las-In-First Out (“LIFO”) principle was not used, and this resulted in the newly appointed teachers being placed ahead of him even though he had more years of actual teaching experience.
7 He went to Maduladula Primary School ("Maduladula”) on 17 January 2022. He only held a meeting with the principal, and they were not joined by any member of the School Governing Body (“SGB”).
8 Under cross examination, he testified that his absence from school due to personal circumstances such a bereavement of one of his relatives contributed to him being declared in excess. He received a placement letter from the school principal on 14 May 2022, and as such went to Maduladula Primary School. His placement at Maduladula was not preceded by a staff meeting similar to the meeting of 03 December 2020. His placement was done in terms of HRM Circular No 61 of 2020. He conceded that the correct Circular is HRM Circular No 50 of 2020
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
9 Ernest Cyril Sibusiso Malevu was the only witness called to testimony. He testified under oath, and his evidence can be summarized as follows. He has been appointed as the principal of Vezinhlahla since 2011. After receipt of the 2021 PPN certificate he arranged a staff meeting on 03 December 2020. All educators were invited to the meeting, including SADTU and NATU. It was only one teacher who tendered an apology that arrived late. He informed those present about the purpose of the meeting, and thereafter explained everything to the staff about the procedure to be followed during the process of matching and placement.
10 Teachers were given copies of their 2020 duty loads showing the number of subjects and period they were teaching during the 2020 academic year. During the first phase of the process curriculum needs are used for identifying educators who will be placed and those who will be declared in excess. LIFO was only used in the case of a tie. The applicant and the other two educators, viz Mr Gumbi and Ms Nala, were declared in excess.
11 Even at Primary School there are subjects which are regarded as scarce skill subjects, eg Maths, Natural Sciences and English. The phasing out of Grades 8 and 9 in 2021 affected the applicant the most because he was teaching Social Sciences in Grades 8 and 9, Life Orientation in Grades 7 and 8 and Creative Arts in Grades 7 to 9. Ms Dlamini was teaching Natural Science in Grade 7 and English in Grades 8 and 9, Mr Gumbi was teaching Life Orientation in Grade 9. They had 8 hours per week. These hours could easily be taken by the educators who were placed. LIFO was only applied in respect of Ms Nala. According to paragraph 4.4.4 of HRM Circular 50 of 2020, LIFO is only applied when there is a tie.
12 According to the 2022 PPN certificate, the number of posts allocated to the school were the same as those allocated in terms of the 2021 PPN. It was therefore not necessary for him to call a meeting similar to the meeting of 03 December 2020. After receipt of the 2022 PPN certificate he called the three educators who had been declared in excess and gave them a preference list of the schools from which they were expected to make a choice of where they wish to be transferred. The applicant chose Hahise Secondary School and Bashban Primary School.
13 Under cross examination, he testified that the procedure manual prescribes that the duty load must be relied on and not qualifications of educators. The applicant went to Maduladula on 17 January 2022, but he came back after being rejected by that school. He advised the applicant to refer his issue to the Circuit Task Team as it is them that wasis responsible for placement of educators. The applicant refused to give him anything in writing concerning the issue of Maduladula. The applicant instead decided to jump him and write a letter directly to the Circuit Manager.
ANALYSIS OF EVIDENCE AND ARGUMENTS
14 I am mindful of the fact that both parties have pursued their cases within the ambit of what I understand to be policy directives issued by the respondent in connection with implementation the provisions of the ELRC Collective Agreement No. 4 of 2016 (“ the Collective Agreement”) dealing with the transfer of serving educators in terms of operational requirements. It is therefore advisable for one to first identify the specific provisions which are alleged to have been contravened by the respondent in the instant case.
15 The long and short of the applicant’s case is to the effect that the respondent erred by failing to place more weight on the principle of “last in, first out” (LIFO) when dealing with the process of rationalization and redeployment at Vezinhlahla Primary School. Simply put, it is argued that LIFO ought to have taken precedence over other factors which must be considered in the process of matching and absorption, or in the identification of educators who must be declared in excess or additional to the establishment.
16 The applicant and his representative may have tried to accuse the principal of having had a vendetta against the applicant, whose ultimate goal was, in the words of Dr Xulu, to make sure that the applicant was constructively removed from the school, but they could not point out a specific provision or provisions of the Collective Agreement and/or HRM Circular No. 61 of 2020 (‘the procedure manual, 2020”) which were flouted by the principal during the meeting of 03 December 2020. It has, however, become clear that the principal was accused of the criteria used in the identification of the applicant as being additional to the establishment. It is therefore not necessary for me to traverse the Collective Agreement and/or the procedure manual in its entirety.
17 Annexure A to the Collective Agreement provides for a criteria which must be used when dealing with the process of matching and absorption, or when identifying educators who must be declared as being additional to the establishment, which include the following:
“ B.6.4.2.2 The needs of the institution, more particularly in relation to its specific curriculum obligations, the number of classes, the time table and the allocation of learners to the class.
B.4.2.4 If a decision has to be taken regarding two or more educators competing for the same post, the principle of “ last in, first out” (LIFO) shall be applied”.
18 The procedure manual, 2020, in the relevant parts, provides as follows:
“ B.4.4.3 Considering the approved curricular needs of the school for the previous year, the principal allocates the permanent qualified educators in substantive posts, in terms of their main subject or subjects/ group of teaching subjects in the previous year into the relevant subjects or phases.
B.4.4.4 Should two or more compete for the same post after taking into account the curricular needs, the principle of LIFO must be applied”
19 I agree with the principal’s understanding that, according to the procedure manual, 2020, the duty load ( which is made up of the number of subjects, the number of classes, the number of periods and that of learners) the primary criteria in the process of actual matching and absorption or identification of those to be held additional. The principal’s evidence that the applicant remained with 8 hours as a result of the phasing out of Grades 8 and 9 in primary schools has not been disputed or contradicted by the applicant. This version is therefore accepted as the true state of affairs during the process of implementation of what was referred to as the PPN for the 2021 academic year. The applicant and those who were affected by the phasing out of Grades 8 and 9 were, on the basis of objective facts, at a great disadvantage. It is therefore understandable as to why the applicant could not have been able to proceed to the LIFO stage, where he would have been much stronger with actual teaching experience of 20 years.
20 It is concluded that the responded in identifying the applicant as being in excess of the establishment during the meeting of 03 December 2020 had not acted in contravention of the both the Collective Agreement and the procedure manual, 2020. The applicant is therefore not entitled to any relief.
AWARD
21 The dispute of the applicant is dismissed.
MORAKA ABEL MAKGAA
Case Number: ELRC947-21/22KZN
Arbitrator: Moraka Abel Makgaa
Date:11 July 2022
In the matter between: -
National Teachers Union obo Ntanzi Dumisani Cyril Applicant
And
Education Department of KwaZulu-Natal Respondent
ARBITRATION AWARD
DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The employee was present and represented by Dr TJ Xulu from National Teachers Union (“NATU”) whereas the respondent was represented by Mr Mzamo Ndlovu, Deputy Director:HRM.
2 The applicant submitted two bundles of documents marked as Bundle A, pages 1-25, and Bundle B made up of pages 26 to 48. The applicant did not submit any documents.
3 The proceedings were digitally recorded. The parties were given the opportunity to submit written closing arguments. The only written submissions which were received are those submitted obo the respondent, and they have been taken into consideration in arriving at the conclusions herein.
ISSUES TO BE DECIDED
4 I was called upon to determine whether the declaration of the applicant as being additional to the establishment was done in accordance with the provisions of the ELRC Resolution 4 of 1996 read with the provisions of the relevant and the Departmental HRM Circulars. If it is found that the respondent has flouted the Collective Agreement or its own procedure manual, an appropriate remedy will be granted.
INTRODUCTION AND BACKGROUND
5 The history and development of this dispute is captured in the pre-arbitration minutes compiled and signed by the parties with the assistance of myself. We reverted to the pre-arbitration meeting with consent of the parties. The common cause issues can be summarizedas follows:
5.1 The applicant is a permanently appointed CS1 educator based at Vezinhlahla Primary School (“Vezinhlahla”) under the jurisdiction of the respondent. He has occupied this position since 12/05/2002.The respondent issued HRMR Circular No.61 of 2020 concerning implementation of PPN in school over a three year cycle commencing in 2021.
5.2 The school conducted the matching and absorption process on 03/12/2020, and the applicant was one of the educators declared in excess of the establishment on account of curriculum needs of the school. The applicant was teaching Social Sciences in Grades 8 and 9. He was also teaching Creative Arts in Grades 7 and 8, and Life Orientation in Grades 7 and 8. Grades 8 and 9 were phased out at the school effective from 2021. According to the procedure manual, duty load of subjects taught in the previous year is a determining factor, and this done as per the phases in Primary Schools.
5.3 Aggrieved by the outcome of the matching and absorption process, the applicant lodged a grievance on 18/02/2021.The applicant alleged that paragraphs 4.1.1 and 4.4.6 of the procedure manual were contravened. A grievance hearing meeting was held on 11/03/2021 where the applicant’s grievance was dismissed. The outcome of the grievance meeting was communicated to the applicant and his union representative in a letter dated 25/03/2021, which was sent through an email.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
6 Ntanzi Pholi Dumisani Cyril (the applicant) was the only witness who testified in his own case. His testimony can be summarized as follows. His relationship with the principal was sour, and the principal has because of this used the process of matching and placement as a punitive measure against him. The process which was conducted on 03 December 2020 was unfair towards him because of the following reasons. There were no pre-meetings of the School Management Team (“SMT”), other members of the SMT were either not present or did not participate during the staff meeting of 03 December 2020, eg Mr Tshabalala was not invited to the meeting, the principal did not ask as to whether there were those amongst the staff who may have volunteered to be declared in excess, Las-In-First Out (“LIFO”) principle was not used, and this resulted in the newly appointed teachers being placed ahead of him even though he had more years of actual teaching experience.
7 He went to Maduladula Primary School ("Maduladula”) on 17 January 2022. He only held a meeting with the principal, and they were not joined by any member of the School Governing Body (“SGB”).
8 Under cross examination, he testified that his absence from school due to personal circumstances such a bereavement of one of his relatives contributed to him being declared in excess. He received a placement letter from the school principal on 14 May 2022, and as such went to Maduladula Primary School. His placement at Maduladula was not preceded by a staff meeting similar to the meeting of 03 December 2020. His placement was done in terms of HRM Circular No 61 of 2020. He conceded that the correct Circular is HRM Circular No 50 of 2020
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
9 Ernest Cyril Sibusiso Malevu was the only witness called to testimony. He testified under oath, and his evidence can be summarized as follows. He has been appointed as the principal of Vezinhlahla since 2011. After receipt of the 2021 PPN certificate he arranged a staff meeting on 03 December 2020. All educators were invited to the meeting, including SADTU and NATU. It was only one teacher who tendered an apology that arrived late. He informed those present about the purpose of the meeting, and thereafter explained everything to the staff about the procedure to be followed during the process of matching and placement.
10 Teachers were given copies of their 2020 duty loads showing the number of subjects and period they were teaching during the 2020 academic year. During the first phase of the process curriculum needs are used for identifying educators who will be placed and those who will be declared in excess. LIFO was only used in the case of a tie. The applicant and the other two educators, viz Mr Gumbi and Ms Nala, were declared in excess.
11 Even at Primary School there are subjects which are regarded as scarce skill subjects, eg Maths, Natural Sciences and English. The phasing out of Grades 8 and 9 in 2021 affected the applicant the most because he was teaching Social Sciences in Grades 8 and 9, Life Orientation in Grades 7 and 8 and Creative Arts in Grades 7 to 9. Ms Dlamini was teaching Natural Science in Grade 7 and English in Grades 8 and 9, Mr Gumbi was teaching Life Orientation in Grade 9. They had 8 hours per week. These hours could easily be taken by the educators who were placed. LIFO was only applied in respect of Ms Nala. According to paragraph 4.4.4 of HRM Circular 50 of 2020, LIFO is only applied when there is a tie.
12 According to the 2022 PPN certificate, the number of posts allocated to the school were the same as those allocated in terms of the 2021 PPN. It was therefore not necessary for him to call a meeting similar to the meeting of 03 December 2020. After receipt of the 2022 PPN certificate he called the three educators who had been declared in excess and gave them a preference list of the schools from which they were expected to make a choice of where they wish to be transferred. The applicant chose Hahise Secondary School and Bashban Primary School.
13 Under cross examination, he testified that the procedure manual prescribes that the duty load must be relied on and not qualifications of educators. The applicant went to Maduladula on 17 January 2022, but he came back after being rejected by that school. He advised the applicant to refer his issue to the Circuit Task Team as it is them that wasis responsible for placement of educators. The applicant refused to give him anything in writing concerning the issue of Maduladula. The applicant instead decided to jump him and write a letter directly to the Circuit Manager.
ANALYSIS OF EVIDENCE AND ARGUMENTS
14 I am mindful of the fact that both parties have pursued their cases within the ambit of what I understand to be policy directives issued by the respondent in connection with implementation the provisions of the ELRC Collective Agreement No. 4 of 2016 (“ the Collective Agreement”) dealing with the transfer of serving educators in terms of operational requirements. It is therefore advisable for one to first identify the specific provisions which are alleged to have been contravened by the respondent in the instant case.
15 The long and short of the applicant’s case is to the effect that the respondent erred by failing to place more weight on the principle of “last in, first out” (LIFO) when dealing with the process of rationalization and redeployment at Vezinhlahla Primary School. Simply put, it is argued that LIFO ought to have taken precedence over other factors which must be considered in the process of matching and absorption, or in the identification of educators who must be declared in excess or additional to the establishment.
16 The applicant and his representative may have tried to accuse the principal of having had a vendetta against the applicant, whose ultimate goal was, in the words of Dr Xulu, to make sure that the applicant was constructively removed from the school, but they could not point out a specific provision or provisions of the Collective Agreement and/or HRM Circular No. 61 of 2020 (‘the procedure manual, 2020”) which were flouted by the principal during the meeting of 03 December 2020. It has, however, become clear that the principal was accused of the criteria used in the identification of the applicant as being additional to the establishment. It is therefore not necessary for me to traverse the Collective Agreement and/or the procedure manual in its entirety.
17 Annexure A to the Collective Agreement provides for a criteria which must be used when dealing with the process of matching and absorption, or when identifying educators who must be declared as being additional to the establishment, which include the following:
“ B.6.4.2.2 The needs of the institution, more particularly in relation to its specific curriculum obligations, the number of classes, the time table and the allocation of learners to the class.
B.4.2.4 If a decision has to be taken regarding two or more educators competing for the same post, the principle of “ last in, first out” (LIFO) shall be applied”.
18 The procedure manual, 2020, in the relevant parts, provides as follows:
“ B.4.4.3 Considering the approved curricular needs of the school for the previous year, the principal allocates the permanent qualified educators in substantive posts, in terms of their main subject or subjects/ group of teaching subjects in the previous year into the relevant subjects or phases.
B.4.4.4 Should two or more compete for the same post after taking into account the curricular needs, the principle of LIFO must be applied”
19 I agree with the principal’s understanding that, according to the procedure manual, 2020, the duty load ( which is made up of the number of subjects, the number of classes, the number of periods and that of learners) the primary criteria in the process of actual matching and absorption or identification of those to be held additional. The principal’s evidence that the applicant remained with 8 hours as a result of the phasing out of Grades 8 and 9 in primary schools has not been disputed or contradicted by the applicant. This version is therefore accepted as the true state of affairs during the process of implementation of what was referred to as the PPN for the 2021 academic year. The applicant and those who were affected by the phasing out of Grades 8 and 9 were, on the basis of objective facts, at a great disadvantage. It is therefore understandable as to why the applicant could not have been able to proceed to the LIFO stage, where he would have been much stronger with actual teaching experience of 20 years.
20 It is concluded that the responded in identifying the applicant as being in excess of the establishment during the meeting of 03 December 2020 had not acted in contravention of the both the Collective Agreement and the procedure manual, 2020. The applicant is therefore not entitled to any relief.
AWARD
21 The dispute of the applicant is dismissed.
MORAKA ABEL MAKGAA