ELRC821-21/22EC

Case Number: ELRC821-21/22EC
Commissioner: Henk Jacobs
Date of Ruling: 17 March 2023

In the matter between

SADTU obo N Mavis Mlanga
(Applicant)

And

1st Department of Education – Eastern Cape, 2nd Mr Dayimani
(Respondent)

Union/Applicant’s representative:

Ms C Royi

Telephone: 063 385 8970
Telefax:
E-mail: royicordelia@gmail.com

Respondent’s representative:
Respondent’s address: Mr T Tsheko

Telephone: 082 461 8250
Telefax:
E-mail: Toto.Tsheko@ecdoe.gov.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held at the offices of the Respondent, King Williams Town, on 31 August 2022, 24, and 25 October 2022, 22 and 23 February 2023.

2 The applicant, Ms Mlanga, was represented by Ms C. Royi, an official from the South African Democratic Teachers Union (SADTU), the 1st respondent, the Education Department - Eastern Cape, was represented by Mr T. Tsheko, a Senior Employment Relations Officer employed by the Respondent and the second Respondent, Mr Dayimani, was represented initially by Ms Zono, an official from SADTU, later during the proceedings the second Respondent represented himself.

3 The hearing was held in English, IsiXhosa and was digitally recorded.

4 Parties further agree to file heads of argument by no later than 06 March 2023, the Applicant filed on the 6th of March 2023 and the Respondent on 08 March 2023. Arguments are not material to the dispute, but merely persuasive in nature. The Applicant would not be prejudiced should I accept the Respondents heads of argument two days out of time. On that basis, I condone the late filing of the Respondents heads of argument and will consider same to finalise this award.

Issue to be decided

6. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, when they removed the Applicant as principal from her school and placed her at a different school.

Background to the matter

7. The Applicant referred an alleged unfair labour practice dispute pertaining to a suspension to the Education Labour Relations Council after she was removed from her school and placed at another school due to the process of rationalisation.

8. The Applicant sought to be placed as principal at the school she was removed from.


Survey of submissions

9. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.

Applicant’s evidence

10. The Applicant testified that she was employed as the principal of Nomfuneko Junior Primary School (herein after referred to as Nomfuneko) on 01 December 2014. During 2014 a meeting was held with School Governing Bodies (SGB) and principals to discuss rationalisation and mergers. If a school has 135 or less learners, the school must apply for re-alignment, and it was decided by the SGB of Nomfuneko that the school should upgrade.

11. An application was made to re-align and each year the school grew in numbers and grades, the school was supplied with money and stationery for all the grades which meant the application was approved. During 2019, the school qualified to be a fully fledged Primary School as it had 441 pupils. The school and the parents had a good relationship up until 2020 when she was not the only principal at the school.

12. They were then informed that they must merge with the neighbouring school, Nomfuneka was the histing school and Ilitha Senior Primary School will be closed as was gazetted in the Government Gazette. There was no advertisement in the newspaper to merge the two schools and there were informal meetings with both schools and parents. The steps in terms of mergers on page 3 of bundle C was not followed.

13. During 2019, she attended a meeting with the EDO who said that Mr Makapela asked to be the principal during the merger as he was going to leave the Departments soon thereafter, she would then take over. The Applicant testified that she agreed to that. They could not get along; she wrote a letter to the Department complaining.

14. The Department then decided to remove both principals from the school and place them at other schools. The Applicant testified she was placed in East London to assist as a level 1 teacher, she declined and reported to the District Office until such time she was placed at a school as a principal where she is employed still to date. She felt that she was victimised and treated unfairly, she was never charged with misconduct, nor were there any allegations against her and she was displaced because she could not get along with another principal.

15. Under cross-examination the Applicant confirmed that she was not suspended and never received any document stating that she was suspended. There were three Primary Schools in the area, and they were told at a meeting that these three schools should merge.

16. The Applicant further confirmed that she never received an approval letter that the school may be re-aligned or upgraded, but that the school was provided with all the books and stationery for the respective grades which indicates that it must have been approved.

17. Ms Tonisi testified that she was a parent and part of the SGB at Nomfuneko, she attended a meeting where rationalisation was discussed, at the school together with the SGB and parents, a decision was taken that Nomfuneko should be re-aligned and upgraded.

18. The Applicant was removed from the school due to a disagreement between the Applicant and the Principal whereafter they were removed from the school by the Department and replaced by a new principal.

19. She was part of the interim SGB of the two schools during 2020 when they merged, and the merger made sense to her.

20. Mr Skweyiya testified that he was the chairperson of the SGB since 2015 and when a school merged, it would be two unviable schools and once they are merged, the post of principal gets advertised and both may apply.

21. When a school is closed, the receiving school’s principal will remain the principal and when schools re-align, schools must host from grade R to grade 7 as a primary school. There were two principals at one school due to the Department forcefully merging the two schools and there was no need to merge, they should close Ilitha and absorb the learners at Nomfuneka. The new school then had the same Emis number as what Nomfuneka had.

22. The two principals were removed from the school because they could not see eye to eye, the SGB was fighting, the teachers were fighting when meetings was called, and the District Director indicated that the only way to solve this was to remove both principals.

Respondent’s evidence

23. Mr Bonginkosi testified that he is the chairperson of the SGB and was an SGB member of the previous school. The new school has the same Emis number as Nomfuneko as there was a proposal that the same number be used based on the fact that they might loose the existing funds of Nomfuneko should a new number be created. The merger of the two schools was decided by the parents and the principals of the two schools.

24. The two principals were removed because they cold not get along and even teachers were separated, the post for a principal was advertised, the Applicant applied, and the second Respondent was appointed.

25. Under cross examination Mr Bonginkosi confirmed that he was co-opted as an SGB member prior to the merger by members who wanted him to vote against the merger which include the Applicant, he then decided to do what was right.

26. The Department came to remove the two principals because of the bad relationship between them and he attended the meeting where it was discussed. There was no hearing, the principals were removed and told that they could re-apply for the post.

27. Ms Kese testified that the Department removed both principals and told them that they will be placed at other schools. They supported the decision to remove them as they could not work together. There was an attempt by the Department to take the Applicant back and the parents declined.

28. Under cross examination, Ms Kese confirmed that the principals could not work together and was removed but was not disciplined, they were placed at other schools.

29. Ms Ngece testified that SADTU was representing the Applicant and wanted the Applicant to return to the school, there was a parent meeting, and it was decided that the Applicant was not welcome back at the school.

30. Under cross-examination Ms Ngece confirmed that the post of principal became vacant as there was a new school, the Applicant applied but was not successful.

Analysis

31. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.

32. The definition of unfair labour in terms of section 186 (2) (b) of the LRA states and unfair labour practice means any unfair act or omission that arise between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.

33. What the Applicant is challenging is that her removal by the Department from the school was unfair and constitute a suspension. The Applicant conceded under cross examination that she was never suspended in the conventional manner and that she was a displaced principal.

34. The dispute before me pertains to an alleged unfair suspension dispute, I am required to determine whether the Applicants removal from the school constitutes a suspension as envisaged in section 186 (2) (b) of the LRA.

35. It was also established during the arbitration that the Applicant was never charged with allegations of misconduct nor was she disciplined, she was removed and placed at another school.

36. It is trite that the list in terms of section 186 (2) of the LRA is a closed list, meaning that no other forms of alleged unfair labour practices may be added to the list. There are only two forms of suspension available to employers, suspension pending disciplinary action, and suspension as sanction, a form of discipline short of dismissal.

37. The Applicant in argument agrees with the two forms of suspension and argued that a suspension is unfair if an employee was never given an opportunity to be heard at a disciplinary hearing. It was established that they Applicant was never subjected to discipline, nor was she suspended for reasons as set out below.

38. A suspension at its core means a temporary suspension of the contract of employment, albeit with pay, unless one refers to suspension as a form of discipline. In this instance, the Applicants contract was never suspended, the Applicant was asked to report to a different school, albeit as a level 1 educator which may constitute a demotion, however, that is not the Applicants claim, the Applicant claim she was unfairly suspended and wish to be returned to the school she was transferred from.

39. The learned author, John Grogan in Employment Rights, 2010 at pages 131-134 states that section 186 (2) (b) links unfair suspension directly to disciplinary action short to dismissal, meaning that any form of suspension must be directly linked to some form of discipline. It is trite that the Applicants removal/transfer was not linked to discipline.

40. One can argue that the Applicants transfer to another school was based on sound operational requirements based on the ineffectiveness of management in the school because of two principals that simply could not work together, and in the interest of the child and education, a decision was made to transfer both principals.

41. Grogan in Employment rights, 2010, page 161 states that transfers are not included in the statutory definition of an unfair labour practice dispute. The Personnel Administrative Measures (PAM) that applies to educators and principals in chapter B, sets out the criteria for the transfer of an educator in terms of (ELRC Collective Agreement 2 of 2003) which includes mergers and transfers and set out the requirements and procedures.

42. In this instance it might be so that the Respondent did not comply with the requirements of a transfer, however, this does not fall within the ambit of an unfair labour practice dispute related to a suspension.

43. It was further argued that the Applicant was a displaced educator and if so, there are regulations managing the process of displacement and that in this instance, these processes were not followed and was thus unfair.

44. That might be so, however, that argument supports the fact that the Applicant was never suspended, and displacement would fall outside the scope of an unfair labour practice dispute related to suspension. As already mentioned, the list in section 186 (2) of the LRA is a closed list, one cannot add other forms of alleged unfair labour practices to the list. An act or omission by the employer must fall within the ambit of section 186 (2) to constitute an unfair labour practice.

45. In light of the above, I find it appropriate to make the following award.


Award

46. The Applicant, Ms Nontembeko Mavis Mlanga, failed to establish that the Respondent, the Education Department -Eastern Cape committed an unfair labour practice in terms of section 186)2) of the LRA.

47. The Applicant is not entitled to any relief.

Signature:

Commissioner: Henk Jacobs