ELRC111-21/22 KZN

Arbitrator: J.D. Vedan
Case Reference No.: ELRC111-21/22 KZN
Date of hearing: 31 October 2022

In the arbitration between:

P.S.A. o.b.o. Navarajan Moodley Applicant/Employee party

and

Department of Education – KwaZulu-Natal Respondent/Employer party

Applicant’s representative: Mr I. Mooloo
Tel: 087 234 7566
E-mail: isharat.mooloo@psa.co.za

Respondent’s representative: Mr M. Bejanath
Tel:
E-mail: Manjith.Bejanath@kzndoe.gov.za

DETAILS OF HEARING AND REPRESENTATION:

1. This arbitration was held at the Durban Teachers Centre, College Road, Durban on 9 March 2022, 25 April 2022, 26 April 2022 and concluded on 31 October 2022.

2. The Applicant, Navarajan Moodley, was represented by Mr I. Mooloo, a Union Official.

3. The Respondent, Department of Education – KwaZulu-Natal, was represented by Mr M. Bejanath, its representative.

BACKGROUND TO THE DISPUTE:

4. The Applicant was a Level 1 Educator employed at Savannah Park School. He was employed as a Mathematics and Maths Literacy Educator, and it is common cause that Maths Literacy is only taught at secondary school.

5. It would appear that the incidents giving rise to this dispute took place as a result of the Corona Virus pandemic. It is common cause that the Head of Department issued a directive in KZN Circular No. 48 of 2020 directing all schools that learners and Educators should attend school on a rotational basis. It would then seem that the school began to rearrange the teaching loads that the Educators had to undertake. This began in November 2022 to accommodate the 2021 academic year.


6. The Applicant was allocated grades 6 and 7 learners to teach, and this fell within the primary school segment of Savannah Park School. It is common cause that Savannah Park School is known as a combined school, and accommodates learners from grade R to grade 12, in other words there is a secondary phase to the school as well as a primary phase. Previous to this allocation, the Applicant had taught grades 8 and 9 Mathematics. It must be borne in mind that when the Applicant was allocated to teach grades 6 and 7, and the only subject he was called upon to teach was Mathematics.

7. What transpired thereafter was that the Applicant did not comply with the instruction given to him by the Principal, Mr Asogan Soobramoney Naicker, and in terms of the teaching load allocated to him, but instead was present on the school premises, or seated in his car, and by implication refused to teach the grades 6 and 7 Mathematics. As a result of this, the employer decided to invoke the no work, no pay principle, and the Applicant’s salary was not paid for the two months he refused to teach.

8. The Applicant on the other hand stated that he is a qualified secondary school Educator, and the fact that he was told to teach primary school Mathematics is a demotion, and among other defences he alleged that the school had undertaken a Post Provisioning Norm exercise, and that he was declared excess, and therefore the Principal transferred him to the primary school. He insisted that the Principal had no authority to do so.

9. The Respondent on the other hand stated that there was no Post Provisioning Norm exercise undertaken by the school, as the school was in fact short of Educators due to death and retirement.

10. The outcome the Applicant is seeking is that he wants to be reimbursed the monies deducted from him, and also be reinstated as a secondary school Educator in Mathematics, in other words the position he previously occupied.


ISSUE TO BE DECIDED:

11. Whether the Respondent committed an unfair labour practice against the Applicant in terms of Section 186(2)(a) and the LRA with regards to demotion?

APPLICANT’S EVIDENCE:

12. The Applicant testified that he transferred to Savannah Park Secondary School in 2017 to teach Mathematics and Maths Literacy. He was previously teaching at Merebank Secondary School. He also stated that he is a Technology Teacher. He taught grade 8 to 12 from 2018 to 2022. In 2020 he taught grades 8 and 9 Mathematics.

13. He stated that in 2020 the Principal had conducted a Retention and Redeployment exercise, and as a result he was declared an excess Educator, and transferred to the primary school by the Principal. He claimed that the Principal stated that because of his poor work performance he was transferred. He further claimed that he had a full teaching load in the secondary school in 2020, and he should have been allowed to continue with that. He contended that the Retention and Redeployment exercise was not done properly.

14. During Covid-19, and as a result of having time on his hands, he assisted by teaching grades 6 and 7 Mathematics just to help the school out. As soon as the grades 8 and 9 returned to school everything reverted to normal.

15. He confirmed that when he was instructed to teach grades 6 and 7 he refused to do so, as he was employed in the secondary school by the Department of Education.

16. He was given a letter by the Circuit Manager, Mr B.T.C. Ndlovu, which was addressed to him at Savannah Park Secondary School, and told him to report to duty immediately. He claimed that he did report to school, although he did not teach the classes he was allocated to teach.

17. Thereafter charges were laid against him by the Principal for refusing to obey a lawful instruction, and the second charge was for withholding his services or dereliction of duty in terms of the Educators Employment Act 76 of 1998. I do not propose to deal with these charges, as they do not fall part of the present case. In the present case the Applicant is claiming that he was demoted and his salary wrongfully deducted.


18. The Applicant stated that he replaced a certain teacher by the name of Mrs Dube, and the grade 12 learners were behind and therefore he was going through the syllabus, and the learners complained he was going too fast. This complaint was unwarranted. He also stated that a certain Mrs Y. Naidoo was transferred from another school, and was given a work load in the secondary school, and as a result he was displaced.


19. He reported to Savannah Park Secondary School every day, and did not apply for a transfer. With his qualifications he should teach secondary school. If he was identified as surplus, then this would have resulted in him applying for posts in various schools.


20. He claimed that he was appointed to Savannah Park Secondary School, and that his appointment letter was tampered with in that the “Secondary” is missing therein. However there is a stamp on the letter dated 28 July 2016, and received by the Principal on 3 August 2016. That stamp states Savannah Park Secondary School.


21. The Applicant stated that he has not taught in a primary school before.


22. He lodged a grievance, however his representative was not present at the hearing due to illness, and the matter proceeded despite this, and he was told he can lodge a dispute with the ELRC.



RESPONDENT’S EVIDENCE:

23. The Respondent called Mr Indran Pillay, the Deputy Director of Human Resources Management in the Umlazi District to give evidence.


24. He testified that he received a complaint from the Circuit Manager and the Principal of the school about the Applicant sitting in his car for over a month, since school had opened, and had not reported to teach. Apparently the Applicant refused to speak to anyone in authority about his situation. The Trade Unions, SADTU and NAPTOSA, were approached as they did not know which Union he belonged to.


25. The Applicant apparently signed the register, and an instruction was given to delete his name on the days he did not attend to teach.


26. Mr Pillay then issued a letter informing the Applicant to return to school immediately. The letter together with the timetable for the classes that he was to go to had to be handed to him. The Applicant did receive the letter, however he did not return to duty.


27. Thereafter the Leave Section was instructed to recall the Applicant’s salary, and thereafter the Department received the grievance on 17 March 2021, together with a demand to pay his salary.


28. The grievance hearing was held, however one can only grieve about his placement and not the process that led to the placement. The Applicant was never in surplus at the school.


29. He stated that it is the Principal’s prerogative to allocate the Educators to classrooms to teach subjects. It depended on the need at the school, and obviously the competency of Teachers to teach the subject. However the Principal had to make the best of what they had in terms of personnel. According to the Personnel Administrative Measures the Principal allocated the duty load.

30. Mr Pillay conceded that he put Savannah Park Secondary School on his letter dated 3 March 2021, and that may have been an oversight on his part. However he said that the Applicant would have been aware of what he was referring to.


31. At the grievance hearing the Applicant refused to speak. All he indicated was the unavailability of his Union representative. The Applicant did not even bring a letter from the representative to confirm his unavailability. There was no reason to postpone, and the Applicant was told he can go to arbitration on the matter. This was not a fatal flaw on the part of the Department. The Applicant could take the matter to the next level.


32. He stated that the Principal is entitled to give a lawful instruction to an Educator to go to a classroom. In terms of the Educators Employment Act, the Principal may have to consult with the Educator. However consult is different from instruct.


33. The second witness was Mrs Geetha Sing, who is employed as one of the Department Heads in charge of Mathematics. She testified that she did not have a Mathematics Teacher for grades 6 and 7.


34. Although the Applicant was allocated to teach grades 6 and 7, and she had informed the Principal that she will hold a meeting with the intermediate Educators after the general meeting in 2021, the Applicant did not remain behind. She went to look for the Applicant however she saw that he was already driving off in his car. She was unable to give him his timetable and allocation. However the Applicant was aware of his allocation, as he was present at the general meeting where the Principal made the announcement.


35. It was only in April 2021 that the Applicant started teaching grades 6 and 7, and that is when she gave him his allocation, timetable, and text books. Prior to that she had to get Education Assistants to teach the learners, although this was not an ideal arrangement as they were only supposed to assist the Educators. When the Applicant was supposed to be teaching he was sitting in his car.
36. Mathematics is a very difficult subject, and as children find the subject difficult an Educator needs to put in a concerted effort in teaching Mathematics. The Principal instructed her to give the Applicant higher grades and only Mathematics.


37. She stated that the Applicant would add quality to the learners as he is a Specialist Mathematics Educator. Having taught grades 8 and 9 Mathematics, he would be familiar with the grades 6 and 7 syllabus. She did not consider it a demotion.


38. The third witness was Mrs Lindiwe Madlala, the Deputy Principal of the school. She stated that there was no difference between the primary and secondary schools. The entire school is combined under one Principal, as it is a combined school.


39. She confirmed the previous evidence given about how Educators and learners had to rotate due to the Covid-19 pandemic. She also confirmed that there was no surplus Educator, and thus there was no need for the Post Provisioning Norm exercise to be applied. She further confirmed that the Applicant did not adhere to the teaching load given to him for grades 6 and 7.


40. She stated that she gave the letter to the Applicant to return to class, and she had gone with Mr Madlala, the Departmental Head. The Applicant refused to take the letter, and stated that it was “nonsense”.


41. Mrs Madlala stated that she teaches isiZulu in the secondary school and the primary school because it is a combined school. Further she stated that she is the Deputy Principal for both the primary sector and the secondary sector, as one sector cannot be dealt with in isolation.


42. The fourth witness was the Principal of the school, Mr Asogan Soobramoney Naicker. He testified that the Applicant was called to his office in November 2020, and was told that his work load for the 2021 academic year would be to teach grades 6 and 7 Mathematics. Prior to this, when the Applicant was told about his work load, he said he needed time to think about this.
43. On 24 November 2020 the Applicant said that he was seeking a transfer to other schools, and was in consultation with other Principals, but did not want to divulge which schools.


44. The Circuit Manager had given the instruction that the Applicant’s name be deleted from the register as he was not teaching. He was basically withholding his services.


45. He also confirmed the letter sent by Mr Pillay.


46. He stated that even if he was seeking transfer that did not mean he can withdraw his labour. Transfer was a long drawn out process, and in the interim he must do his work.


47. The Principal confirmed that no Post Provisioning Norm process was done for the 2021 academic year. There was no surplus at the school. In fact there was a need for more Educators.


48. Mr Naicker stated that his school was unique because it was a combined school, and it was quite a challenging atmosphere. There are five Departmental Heads allocated to the school, and this is inadequate. However the teaching loads allocated to the Educators were in his view fair and equitable. During Covid-19 classes were alternated for the different grades.


49. The Applicant had claimed that the Circuit Manager was assisting him with his transfer, but the Circuit Manager denied this. The Applicant even went for a meeting for surplus Educators, but was asked to leave the meeting, as he was not regarded as a surplus Educator.


50. Mr Naicker stated that he attempted on numerous occasions to engage with the Applicant. However the Applicant informed him that he needed to think about it. There were occasions in his resistance when he even left the school without the Principal’s authority.


51. He did not have much of a problem with language at the school, and discipline was a problem as in every other school. However the school maintained a system whereby strict discipline was enforced. Previously Mrs Dube had taught Mathematics and excelled. However she had immigrated to Dubai, and that was when they had obtained the services of the Applicant with the hope of keeping the trend going.


52. Mr Naicker testified that an Engineering Graphics and Design Educator was required, and the Applicant, although he claimed to have had experience, did not want to teach the subject, and therefore the EGD Educator had to be given a work load, and this was combined with grade 8 and 9 Mathematics, and this is why the Applicant was displaced.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

53. The Applicant has stated that he was demoted. However one must bear in mind that the Applicant is a Level 1 Educator, and he has remained a Level 1 Educator. There was no difference in his salary, nor in any of his benefits, when he was told to teach grades 6 and 7 Mathematics.

54. Demotion means a lower status. It means being moved from a higher position to a lower position. The Courts have also held that demotion can also mean being allocated a position where there could be a lowering of authority.

55. The Principal in terms of the Educators Employment Act 76 of 1998, and in terms of the protocols attached to the position, is the decision maker in the school. In this matter, the Principal, no doubt seeking consensus from the school management and even consulting with the Educators, sought to allocate teaching loads to the Educators at his disposal.

56. At this juncture one has to analyze the school itself. Savannah Park School is one of those rare schools where both the primary phase and the secondary phase are combined. The school even has grade R. The evidence and facts show that the school is regarded as one entity, and not two separate entities under two separate managements.


57. Even Mrs Lindiwe Madlala’s evidence shows that she taught isiZulu in the primary phase as well as the secondary phase.


58. The Applicant seems to have been disgruntled with the Principal and/or the management of the school in that he did not want to accept teaching grades 6 and 7. The probability is that he could have been peeved at being removed from teaching grade 12 Mathematics due to complaints, and also grades 8 and 9 Mathematics.


59. The Principal gave an explanation as to why the Applicant had to be displaced from secondary phase and placed in the primary phase. There was nothing sinister about this.


60. The Educator, Mrs Y. Naidoo, that had been alluded to by the Applicant had nothing to do with his teaching load in the secondary phase, as she was an Educator of Life Sciences, and she did not teach Mathematics.


61. As far as the Post Provisioning Norm exercise is concerned, the Principal and the school had to supply documents every three years, and they did complete those documents, even if there was no surplus Educator at the school. The Applicant definitely was not surplus to the requirements of the school.


62. Every employer is entitled to have the labour of its employee at its disposal in return for the payment of remuneration and other benefits. What the Applicant was undertaking by refusing to work was a protest, and although strikes involve more than one person, however what the Applicant was doing was tantamount to a one man strike.


63. If he was dissatisfied with the school, he should have applied and gone through the transfer process. However while the process was taking place he has to obey instructions given to him. Above all he was asked to teach Mathematics, which was his forte, and also the Principal gave him an exclusive Mathematics work load.


64. The Respondent’s witnesses gave their evidence in a credible and forth right manner, and the witnesses corroborated each other in almost every material respect.


65. The Applicant on the other hand seems to have formed his own views on the rectitude of his position, and his own interpretation of the processes and practices, such as the Post Provisioning Norm and the Retention and Redeployment policies, which is incorrect.


66. The Principal, as the head of the combined school, was merely giving fair and lawful instructions with regards to the work load, which the Applicant should have obeyed.


67. It has to be noted that the Applicant is at present attending to teach grades 6 and 7 at the Savannah Park School.


68. Section 186 (2)(a) states that employees who complain of unfair demotion must prove that they were demoted. A demotion does not occur merely because an employee is placed in a position doing slightly different work, especially when such work falls within the scope of the employee’s duties.


69. In the unique circumstances of the school, the Applicant retained his position as a Level 1 Educator, and it is only his work load that had been redirected to grades 6 and 7. There was no transfer involved, as he was in the same school as an entity.


FINDINGS:
70. Taking all the above into consideration, and using the balance of probabilities, I find that there was no unfair labour practice committed by the Respondent herein.



AWARD:

71. The Respondent has not committed an unfair labour practice against the Applicant.


72. The application is dismissed.


73. There is no order as to costs.


J.D. VEDAN
ELRC Panellist