ELRC1006-21/22FS
Text
ELRC1006-21/22FS
Award Date:
11 August 2022
Panellist: Khuduga Tlale
Case Reference No.: ELRC1006-21/22FS
Date of ruling: 11 August 2022
In the matter between:
NAPTOSA obo Daniel MacPherson Applicant
And
Department of Education – Free State Respondent
ARBITRATION AWARD
Details of the hearing and representation
1. The arbitration hearing between NAPTOSA obo Daniel MacPherson (“Applicant”) and Department of Education – Free State (“Respondent”) was held on 04 August 2022 via Zoom. The Applicant appeared in person and Mr. Anton Adams, union official, represented him and, Mr. Solomon Moloi, Labour Relations Officer, represented the Respondent.
2. This proceeding was digitally recorded. The parties agreed to submit written heads of argument on Monday, 08 August 2022 and they submitted.
Issue to be decided
3. The issue to be decided is whether the Respondent committed an unfair labour practice within the context of section 186(2)(a) of the Labour Relations Act, as amended (“the Act”).
Background to the dispute
4. This is a dispute brought in terms of section 186(2)(a) of the Act relating to the provision of transfer, referred by the Applicant to the Education Labour Relations Council (“the Council”) for arbitration. It is common cause that the Applicant was employed by the Respondent as a school principal at Dr. Blok Secondary School (“the school”) in Bloemfontein. The Applicant received a transfer letter dated 29 November 2021 on 02 March 2022. The Applicant reported at Motheo District Office (“the district office”) with effect from 03 March 2022.
5. The Applicant case was that his transfer constituted an unfair labour practice in terms of section 186(2)(a) of the Act. Therefore, the Applicant sought his transfer to be uplifted.
6. The parties submitted bundle of documents that were marked bundle “A” and ‘’R’.
Survey of evidence
Applicant
First witness: Mr. Daniel MacPherson
7. The witness testified under oath that he was the Applicant in this matter. The Respondent did not consult him prior to his transfer. He was not even invited during the investigation to put his side of the story. He was employed in terms of the Employment of Educators Act, 76 of 1998 (“Educators Act”) but he was transferred in terms of section 58B(b) of the South African Schools Act (“SASA”). There were twenty-one (21) schools declared dysfunctional at their district but the principals of those schools were not transferred.
8. Under cross-examination he stated that the school was visited by the Respondent officials to support and assist them to improve their result in the year 2021. He had no knowledge about the complaint sent to the Respondent against him. He confirmed that the school was declared dysfunctional and, he had no knowledge about the division within the school.
9. Under re-examination he stated that the Respondent takes no steps to assist the school and he was not even sent to the incapacity training. The Respondent did not appoint the mentor to assist the school to improve its result. He was not given an opportunity to respond to the alleged complaint lodged by the educators against him.
Respondent
First witness: Mr. Michael Tshabalala
10. The witness testified under oath that the Respondent employed him as the Deputy-Director: Human Resources at district office. He stated that the Respondent received series of complaints against the Applicant as per “R7-R17”. The complaints might not been sent to the Applicant but they were the ones that made the District Director to visit the school in October 2021. The school was supported and assisted by the circuit managers.
11. The situation at the school was not normal and it was declared dysfunctional. There were no good working relationship at that school between the staff and school governing body. All the forces were against the Applicant. There were educators who supported and not supporting the Applicant. The decision of the Respondent to transfer the Applicant emanates from those complaints. The situation at that school needed an urgent attention because teaching and learning were deteriorating. Section 58B(b) of SASA allowed the Respondent to come in and safe the school. The Applicant was not transferred to any educators’ post. It was a temporary transfer to safe the school.
12. Under cross-examination he confirmed that the Applicant was not transferred to the district office in terms of section 8.1 of the Educators Act. He was transfer in terms of section 58B(b) of SASA. The school situation was not normal and it had to be dealt with, the same way. The Respondent currently in a fact finding exercise at the school in the absence of the Applicant. He confirmed that the Applicant was not employed in terms of SASA but his transfer was supported by section 58B(b) of SASA.
Survey of arguments
Applicant
13. The Applicant representative stated that the issue to be decided was whether the transfer of the Applicant constituted an unfair labour practice for the purposes of section 186(2)(b) of the Act and, whether that placement constituted a demotion. The Applicant was of the view that the transfer constitutes an unfair labour practise as he is not employed in terms of the SASA, but in terms of the Educators Act. Any temporary transfer to any post in the provincial education department should be made in terms of section 8(1)(c) of the Educators Act.
14. The Applicant viewed his temporary transfer as a demotion as most of the time he was not given any task, shares a small office and he was provided with a school desk. Nowhere in the SASA does it give powers to the Respondent to transfer an educator to any post in the department. The Respondent did not comply with the provisions of the Educators Act that sets out his conditions of service. He therefore prays that the temporary transfer be set aside on procedural, substantive, and constitutional grounds.
Respondent
15. The Respondent representative stated that there were no other options but to take the decisive measures to ensure that the situation at the school was restored back to normal. It was the Respondent prerogative to ensure that there was efficient and effective teaching and learning at the school. The Applicant was not transferred in terms of SASA but, in terms of the Educators Act.
Analysis of evidence and arguments
16. Section 186(2)(a) of the Act, states that an unfair labour practice is any unfair act or omission that arises between an employer and an employee involving-
• unfair conduct by the 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 benefits to an employee.
17. The onus to establish that the conduct complained of constitutes an unfair labour practice within the meaning of Section 186(2) of the Act rests on the Applicant. The Applicant must therefore be able to lay the evidentiary foundation for his claim of an unfair labour practice. In discharging the onus, the Applicant testified.
18. It is common cause that the dispute relates to the Respondent transferring the Applicant from the school to the district office. The Applicant sought the transfer to be uplifted. The question that need to be ask is whether transfer constituted an unfair labour practice in terms of section 186(2) of the Act? There is a widespread misconception that everything ‘unfair’ an employer does will constitute an unfair labour practice and that an employee will have a remedy. There is a considerable difference between the unfair labour practice contained in section 186(2) of the Act and the fundamental right in respect of fair labour practices contained in section 23(1) of the Constitution of the Republic of South Africa.
19. There is a closed list of an unfair labour practices in the Act. That means that only employer actions that fall within the scope of the four (4) categories expressly listed in section 186(2)(a-d) could be an unfair labour practice. If a certain action does not fall within the scope of the definition, it will not be an unfair labour practice in terms of the Act. The Council can only arbitrate a dispute if that dispute falls within the scope of the unfair labour practice definition.
20. The Applicant dispute is in relation to the transfer, therefore, that conduct does not constitute an unfair labour practice.
21. Even if it constituted an unfair labour practice, there was no evidence led during the proceeding to prove that the Applicant was transferred to any post and there reduction or diminution of dignity, importance, responsibility, power and status. The issue of a demotion only came out during the heads of arguments. It was the Respondent undisputed evidence that the Applicant was not transferred to any post in the department in terms of section 8(1)(c) of the Educators Act.
Conclusion
22. In these circumstances, I find the Applicant has failed to prove that the act complained of is one that falls within the unfair labour practice definition.
Award
23. The Applicant, Mr. Daniel MacPherson, failed to prove that transfer constituted an unfair labour practice in terms of section 186(2)(a) of the Act.
24. The application is dismissed.
Signature:
Commissioner: Khuduga Tlale
Sector: Education
Case Reference No.: ELRC1006-21/22FS
Date of ruling: 11 August 2022
In the matter between:
NAPTOSA obo Daniel MacPherson Applicant
And
Department of Education – Free State Respondent
ARBITRATION AWARD
Details of the hearing and representation
1. The arbitration hearing between NAPTOSA obo Daniel MacPherson (“Applicant”) and Department of Education – Free State (“Respondent”) was held on 04 August 2022 via Zoom. The Applicant appeared in person and Mr. Anton Adams, union official, represented him and, Mr. Solomon Moloi, Labour Relations Officer, represented the Respondent.
2. This proceeding was digitally recorded. The parties agreed to submit written heads of argument on Monday, 08 August 2022 and they submitted.
Issue to be decided
3. The issue to be decided is whether the Respondent committed an unfair labour practice within the context of section 186(2)(a) of the Labour Relations Act, as amended (“the Act”).
Background to the dispute
4. This is a dispute brought in terms of section 186(2)(a) of the Act relating to the provision of transfer, referred by the Applicant to the Education Labour Relations Council (“the Council”) for arbitration. It is common cause that the Applicant was employed by the Respondent as a school principal at Dr. Blok Secondary School (“the school”) in Bloemfontein. The Applicant received a transfer letter dated 29 November 2021 on 02 March 2022. The Applicant reported at Motheo District Office (“the district office”) with effect from 03 March 2022.
5. The Applicant case was that his transfer constituted an unfair labour practice in terms of section 186(2)(a) of the Act. Therefore, the Applicant sought his transfer to be uplifted.
6. The parties submitted bundle of documents that were marked bundle “A” and ‘’R’.
Survey of evidence
Applicant
First witness: Mr. Daniel MacPherson
7. The witness testified under oath that he was the Applicant in this matter. The Respondent did not consult him prior to his transfer. He was not even invited during the investigation to put his side of the story. He was employed in terms of the Employment of Educators Act, 76 of 1998 (“Educators Act”) but he was transferred in terms of section 58B(b) of the South African Schools Act (“SASA”). There were twenty-one (21) schools declared dysfunctional at their district but the principals of those schools were not transferred.
8. Under cross-examination he stated that the school was visited by the Respondent officials to support and assist them to improve their result in the year 2021. He had no knowledge about the complaint sent to the Respondent against him. He confirmed that the school was declared dysfunctional and, he had no knowledge about the division within the school.
9. Under re-examination he stated that the Respondent takes no steps to assist the school and he was not even sent to the incapacity training. The Respondent did not appoint the mentor to assist the school to improve its result. He was not given an opportunity to respond to the alleged complaint lodged by the educators against him.
Respondent
First witness: Mr. Michael Tshabalala
10. The witness testified under oath that the Respondent employed him as the Deputy-Director: Human Resources at district office. He stated that the Respondent received series of complaints against the Applicant as per “R7-R17”. The complaints might not been sent to the Applicant but they were the ones that made the District Director to visit the school in October 2021. The school was supported and assisted by the circuit managers.
11. The situation at the school was not normal and it was declared dysfunctional. There were no good working relationship at that school between the staff and school governing body. All the forces were against the Applicant. There were educators who supported and not supporting the Applicant. The decision of the Respondent to transfer the Applicant emanates from those complaints. The situation at that school needed an urgent attention because teaching and learning were deteriorating. Section 58B(b) of SASA allowed the Respondent to come in and safe the school. The Applicant was not transferred to any educators’ post. It was a temporary transfer to safe the school.
12. Under cross-examination he confirmed that the Applicant was not transferred to the district office in terms of section 8.1 of the Educators Act. He was transfer in terms of section 58B(b) of SASA. The school situation was not normal and it had to be dealt with, the same way. The Respondent currently in a fact finding exercise at the school in the absence of the Applicant. He confirmed that the Applicant was not employed in terms of SASA but his transfer was supported by section 58B(b) of SASA.
Survey of arguments
Applicant
13. The Applicant representative stated that the issue to be decided was whether the transfer of the Applicant constituted an unfair labour practice for the purposes of section 186(2)(b) of the Act and, whether that placement constituted a demotion. The Applicant was of the view that the transfer constitutes an unfair labour practise as he is not employed in terms of the SASA, but in terms of the Educators Act. Any temporary transfer to any post in the provincial education department should be made in terms of section 8(1)(c) of the Educators Act.
14. The Applicant viewed his temporary transfer as a demotion as most of the time he was not given any task, shares a small office and he was provided with a school desk. Nowhere in the SASA does it give powers to the Respondent to transfer an educator to any post in the department. The Respondent did not comply with the provisions of the Educators Act that sets out his conditions of service. He therefore prays that the temporary transfer be set aside on procedural, substantive, and constitutional grounds.
Respondent
15. The Respondent representative stated that there were no other options but to take the decisive measures to ensure that the situation at the school was restored back to normal. It was the Respondent prerogative to ensure that there was efficient and effective teaching and learning at the school. The Applicant was not transferred in terms of SASA but, in terms of the Educators Act.
Analysis of evidence and arguments
16. Section 186(2)(a) of the Act, states that an unfair labour practice is any unfair act or omission that arises between an employer and an employee involving-
• unfair conduct by the 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 benefits to an employee.
17. The onus to establish that the conduct complained of constitutes an unfair labour practice within the meaning of Section 186(2) of the Act rests on the Applicant. The Applicant must therefore be able to lay the evidentiary foundation for his claim of an unfair labour practice. In discharging the onus, the Applicant testified.
18. It is common cause that the dispute relates to the Respondent transferring the Applicant from the school to the district office. The Applicant sought the transfer to be uplifted. The question that need to be ask is whether transfer constituted an unfair labour practice in terms of section 186(2) of the Act? There is a widespread misconception that everything ‘unfair’ an employer does will constitute an unfair labour practice and that an employee will have a remedy. There is a considerable difference between the unfair labour practice contained in section 186(2) of the Act and the fundamental right in respect of fair labour practices contained in section 23(1) of the Constitution of the Republic of South Africa.
19. There is a closed list of an unfair labour practices in the Act. That means that only employer actions that fall within the scope of the four (4) categories expressly listed in section 186(2)(a-d) could be an unfair labour practice. If a certain action does not fall within the scope of the definition, it will not be an unfair labour practice in terms of the Act. The Council can only arbitrate a dispute if that dispute falls within the scope of the unfair labour practice definition.
20. The Applicant dispute is in relation to the transfer, therefore, that conduct does not constitute an unfair labour practice.
21. Even if it constituted an unfair labour practice, there was no evidence led during the proceeding to prove that the Applicant was transferred to any post and there reduction or diminution of dignity, importance, responsibility, power and status. The issue of a demotion only came out during the heads of arguments. It was the Respondent undisputed evidence that the Applicant was not transferred to any post in the department in terms of section 8(1)(c) of the Educators Act.
Conclusion
22. In these circumstances, I find the Applicant has failed to prove that the act complained of is one that falls within the unfair labour practice definition.
Award
23. The Applicant, Mr. Daniel MacPherson, failed to prove that transfer constituted an unfair labour practice in terms of section 186(2)(a) of the Act.
24. The application is dismissed.
Signature:
Commissioner: Khuduga Tlale
Sector: Education