ELRC524-21/22MP

CASE NUMBER: ELRC524-21/22MP

DATE: 19 January 2023

In the matter between

NATU obo ZIHLAMELA PATRICIA MASINA AND APPLICANT
1 OTHER

AND


DEPARTMENT OF EDUCATION RESPONDENT
MPUMALANGA

DETAILS OF PARTIES AND REPRESENTATION

[1] This is the award in the arbitration between, Zihlamela Patricia Masina & 1 Other (“the applicants”) and Department of Education, Mpumalanga, (“the respondent”).

[2] The arbitration was held under the auspices of the Education Labour Relations Council in terms of section 191(5)(a) of the LRA and the award is issued in terms of section 138 (7) of the LRA.

[3] The arbitration hearing took place on 21 September 2022 & 21 October 2022 via online virtual platform (zoom).

[4] The applicants were in attendance and were represented by Mr. Njabulo Mtolo, a union official from National Teachers Union (NATU). The respondent was represented by Mr. Sifiso Khoza, its industrial relations practitioner.

[5] The applicants submitted a bundle of documents which was marked as bundle “A”, while the respondent’s bundle of documents was marked as bundle “B” in the proceedings. The proceedings were digitally recorded and handwritten notes were also taken. Interpretation services were not required.

BACKGROUND TO THE DISPUTE

[6] The parties are Zihlamela Patricia Masina (“Ms Masina”) and Ntshangase Tidimalo Brenda (“Ms Ntshangase"), the applicants and the Department of Education, Mpumalanga, the respondent.

[7] The applicants are both employed by the respondent as PL1 Educators at F H Mkhabela Secondary School in Witbank, Mpumalanga. They are both grade 7 educators. Ms Masina started on 01 May 2016 and Ms Ntshangase in April 2012. Ms Masina is earning a salary of R23 000 per month and Ms Ntshangase earns R27 000 per month.

[8] The applicants had referred an alleged unfair labour practice dispute relating to benefits. They contended that the respondent had perpetrated an unfair labour practice against them when their salaries were unlawfully deducted.

[9] In opening, the applicants submitted that in 2020 the Country was on COVID -19 lock-down level 1 from 01 March – 30 May 2020. Schools closed early. An amended time table for the schools was issued in terms of the Government Gazette. In terms of the amended time table grade 7 teachers were to return to school on 11 August 2020. However, school principal and the school management team (SMT) could be requested to return to school earlier to assist to get the school ready to comply with COVID-19 regulations.

[10] The applicants did not receive communication to return to school early. They returned to school as per dates on the Government Gazette. The principal penalized them by treating their absence as leave without pay. As a result, their salaries were deducted.

[11] Ms Masina was allegedly absent from work for four (4) days, during the period 04 August 2020 – 07 August 2020, while Ms Ntshangase was absent for five (5) days for the period 03 August 2020 – 07 August 2020.

[12] On the other hand, in opening the respondent submitted that they will be relying on the Government Gazette to demonstrate that grade 7 educators had to return to school early to assist with getting the school ready to comply with COVID-19 regulations.

[13] In terms of the Government Gazette, the principal had a discretion to appoint any educator to come to school early to assist. The applicants were appointed by the principal and the SMT to come and assist, and the message was relayed to them through WhatsApp. The applicants received the message. Ms Masina reported to school on 03 August 2020 as per the message, and again on 11 August 2020. Ntshangase failed to report to school, as per the message and only reported on 11 August 2020.


[14] The applicants sought relief of payment of deducted monies as a result of their absence from school, which was treated as unpaid leave. Ms Masina to be paid an amount of R3 068.90 and Ms Ntshangase R5 860.80.

PRELIMINARY ISSUES


[15] On 21 October 2022 at the beginning of the proceedings, the respondent’s representative made an application for postponement. The reasons for the application were the following: there was no electricity at Emalahleni, Witbank where his witness Mr Mangwato Simon Nkwana (Mr Nkwana) and the applicants were located. Mr Nkwana could not connect to online media (zoom), due to unavailability of the network. The respondent had only one question for the witness before finalizing examination in chief and wanted to finalise the matter.

[16] The applicant’s representative, submitted that it was true that there was no electricity at Emalahleni since Monday, where the school is located. However, the respondent had enough opportunity to make alternative arrangements since Monday. The respondent could have applied for postponement timeously or could have arranged with the witness to go to an area where he could connect. During the last sitting the applicants travelled to another area to be able to connect via online media (zoom).

[17] The matter started in January this year and has been postponed twice already. The applicants are entitled to a speedy resolution of their dispute. The applicants are requesting a relief of less than R10 000. It will cost the Council more money to postpone the matter. As such, postponement should be denied.

[18] The respondent’s representative in reply submitted that he was at Nelspruit and only heard about the electricity challenges on the day of the arbitration hearing in the morning. He immediately contacted the Council to notify them about the challenges. The principal is a school manager and could not arrange someone to act on his behalf in such a short notice.

ANALYSIS


[19] On 21 September 2022 the matter could not be finalised due the applicant’s representative failing to connect back to the online media, zoom. The witness, Mr Nkwana was present when an agreement was reached to postpone the matter to 21 October 2022.

[20] There was no electricity at Emalahleni since Monday, specifically at the school. Mr Nkwana had foreseen that there is a possibility that on the day of the arbitration hearing, the electricity would not be back. He could have alerted his representative timeously or made arrangement to sit elsewhere in the area where he could find connection. The applicants, requested permission from him to go out of the school and sit in an area where they could find connection. Mr Nkwana granted them permission. The applicants were present at the arbitration hearing. The proceedings were adjourned for an hour to assist the respondent to get Mr Nkwana to find a place to connect to zoom, in spite of the opportunity Mr Nkwana still failed to connect. I find that Mr Nkwana could have also made efforts to be present at the arbitration hearing.

[21] In Mokheseng v Karee Mine (J 1713/04) [2006] ZALC 40; (2006) 27 ILJ 1511 (LC) (handed down on 24 February 2006) it was stated that the application for postponement must always be bona fide and not used as a tactical maneuver for the purpose of obtaining an advantage over the other party. The consideration of prejudice will ordinarily constitute the dominant component in exercising a discretion to grant or not to grant postponement.

[22] In Northern Province Development Corporation v CCMA and others (JR 217/01) [2002] ZALC 84; (2001) ss ILJ 2697 (LC)(handed down on 12 October 2002) the Court held that the LRA requires disputes to be resolved expeditiously and thus Arbitrators have a wide discretion in granting or refusing to grant a postponement.

[23] I find the excuse of the respondent, on the application for postponement unreasonable. Mr Nkwana failed to make efforts to avail himself at the arbitration hearing. Granting postponement in the present matter would be contrary to speedily resolution of the dispute and not in the interest of justice.

Ruling


[24] Postponement was refused.

ISSUE/S TO BE DECIDED


[25] The issue to be decided is whether or not the respondent committed an unfair labour practice in terms of section 186 (2) (a) of the LRA against the applicants, by treating the absence of the applicants from work as unpaid leave, which resulted in the deduction of their salaries.


SURVEY OF PARTIES’ EVIDENCE AND ARGUMENTS

The Applicants Case

Ms Masina and Ntshangase’s evidence under oath:

[26] Ms Masina testified that on 31 July 2020 she received a message from the principal that she should come to school on Monday, 03 August 2020. The message further said that the national audit committee was coming to school to audit the teachers attendance register (“Z8”) and that all who were in isolation must come and update their Z8. The message is on page A2 and A3.

[27] She went to school on 03 August 2020 to update her Z8, thereafter she went home. The principal was not at school, but his deputy was there. She complied with the message sent by the principal. She returned to school on the week of the 11-14 August 2020 as per the Government Gazette and the arrangement in relations to school closure for grade 7 educator, a copy of such is on A13.

[28] She never received any message from the school to return to school on 03 August 2020 to assist with preparations for compliance with COVID- 19 regulations so as to get the school ready for the return of the learners.

[29] She was not unlawfully absent from school from 04 August 2020 – 07 August 2020. The respondent was unfair to treat the period as leave without pay and further deducted her salary. She is requesting repayment of her unlawfully deducted salary of R3 068.90.

[30] In cross examination, Ms Masina maintained that she never received any message from the principal instructing her to return to school on 03 August 2020 to assist with preparations to assist the school to comply with COVID -19 regulations. The message she received was to complete the Z8. She received the message from the principal and not from the school WhatsApp group. When she was at school on 03 August she did not see other teacher assisting the grade 12.

[31] Ms Ntshangase testified that in 2020 she was teaching grade 7, but now she is teaching the grade 8 learners. During COVID-19 lock-down schools were closed from 20 March 2020. In August 2020 the principal forwarded all the teachers a document on a WhatsApp message indicating that schools will be open as on 03 August 2020. The document indicated that first the grade 12 educators and leaners will open on week 1; grade 7 leaners and educators will open on week 2 ; and on week 3, on 17 August 2020 all educators were expected to be at school.

[32] She never received any message from the principal instructing teachers to return to school from 03 August 2020 to assist the school to comply with COVID -19 health and safety regulations. The principal sent a message to those who were in isolation. The message was never sent to her. She returned to school on 11 August 2020 as per the Government Gazette and arrangement in relations to school closure for grade 7 educator, a copy of such is on A13. She was not unlawfully absent from school from 03 August 2020 – 07 August 2020. The respondent was unfair to treat the period as leave without pay and further deducted her salary. She is requesting repayment of her unlawfully deducted salary of R5 860.80.

[33] In cross examination, Ms Ntshangase testified that the Government Gazette that she received stated that an educator can come to school on 03 August 2020 only if she/he is requested by the principal and SMT to assist the school with health and safety measures. She never received such message from the school or the SMT.

The Respondents Case

Mangwato Simon Nkwana (Mr Nkwana)’e evidence under oath:

[34] He testified that R15 is a policy regulating COVID-19 disaster management. The policy indicates that on week 1, the principal and SMT should come to school to prepare for leaners coming to school on week 2. The policy on R16, indicates that officials as identified by the principal and SMT will come to school to assist with health and safety measures for leaners.

[35] He decided to call all the teachers to come to school after considering that some teachers were in isolation and others are suffering from comorbidities as a result, there could be a shortage of teachers. On 31 July 2020 he decided to send all his colleagues a WhatsApp message and had send some teachers individual messages reminding them to report for duty on 03 August 2020. R28 is the WhatsApp message that he sent to the teachers it read “All staff members are reminded to report to work on Monday….”

[36] Ms Ntshangase did not report to school on 03 August. Ms Masina report to school only on 03 August ,but was absent for the whole week. He approached Ms Masina at the staff room asking her why was she not assisting other teachers. Ms Masina’s response was one that could not be given by a professional.

Closing arguments


[37] During the COVID-19 hard lock-down the schools were closed from 20 March 2020. The Department of Education issued out a circular which provided staggered program for the return to school of learners and educators. The applicants returned to school as per the circular/ Government Gazette. Ms Masina went to school on 03 August 2020 only to complete the Z8, as per the message she received from the principal. The applicants never received any message from the principal or the SMT to report to school on 03 August 2020 to assist the school with health and safety measures. If such a message was sent to them it would have been presented by the respondent.

ANALYSIS OF PARTIES EVIDENCE AND ARGUMENTS


[38] The issue I am to decide is whether the respondent had perpetrated an unfair labour practice relating to benefits, as contemplated in section 186 (a) in the LRA against the applicants. The LRA is silent on the incidence of onus to prove an unfair labour practice, however, it is generally accepted that he or she who alleges an unfair labour practice (that is the employees) must prove the allegation.

[39] Section 186 (2) of the Labour Relations Act 66 of 1995 (as amended) (the LRA) provides that unfair labour practice means any unfair act or omission that arises between an employer and an employee involving an 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 the provision of benefits to an employee.

[40] I do not intend to repeat verbatim the evidence of the parties. I chose to deal with the salient facts of this matter. I considered the evidence of the parties and the closing arguments of the respondent. The respondent’s witness was not subjected to cross examination, due to the fact that he was not present at the last arbitration hearing meeting. The respondent also failed to submit the closing arguments. The crux of the dispute is that the respondent deducted the salaries of the applicants after their absence from school was treated as leave without payment.

[41] The applicants contended that the respondent was unfair in treating their absence from work for the period 3 & 4 – 7 August 2022 as leave without pay. They alleged that for that period they were not absent from work. They did not receive any message from the principal or SMT requesting them to be at school to assist the school with health and safety measures. They reported to school as per the dates on the Government Gazette.

[42] The respondent’s witness, Mr Nkwana testified that he sent all teachers a WhatsApp message and sent other teachers individual messages to report to school on 03 August 2020. Ms Masina reported on 03 August 2020, and thereafter, failed to report for the whole week and Ms Ntshangase failed to report to work as instructed on 03 August and for the rest of the week.

[43] Both the applicants disputed to have received the message allegedly sent by the principal. Though, Nkwana presented the message he allegedly sent to all the teachers, there was no proof presented that the message was sent to all the teachers or to the school WhatsApp group or at least to Ms Masina and Ms Ntshangase.

[44] I therefore, find it probable that the respondent did not send Ms Masina and Ms Ntshangase a message to report to school on 03 August 2020 – 07 August 2020 to assist the school with safety and health measures to comply with COVID-19 regulations. As such the deductions made by the respondent on the applicants salaries, as a result of leave without pay was unfair.

[45] The applicants have proven that the respondent perpetrated unfair labour practice in terms of section 186 (2)(a) relating to benefits against them.

[46] The respondent is directed to pay the applicants, Ms Masina and Ms Ntshangase money that was deducted from their salaries as a result of unpaid leave.





AWARD


[47] The respondent, The Department of Education: Mpumalanga is directed to pay the applicants, Hlamela Patricia Masina an amount of R 3 086.90 and Tidimalo Brenda Ntshangase an amount of R5 860.80 into the applicants bank details, where their salaries are paid not later than 28 February 2023.

[48] There is no order as to costs.

Adv Mathabo Makwela
ELRC Panel