ELRC818-22/23FS

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA VERTUAL VIDEO CONFERENCE

Case No: ELRC818-22/23FS

In the matter between

Montseng L Manoto Applicant

And

Education Department of the Free State Respondent

PANELLIST: Dr. GC. Van Der Berg
Award Date: 05 April 2023

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing was held on 30 March 2023 at 09:00 via digital zoom conference from Cape Town, under the auspices of the Education Labour Relations Council (“ELRC”). The proceedings were both digitally and manually recorded. The applicant was represented byThabo Raphado the legal adviser at AW Theron and Swanepoel Attorneys. The respondent, Education Department of the Free State, was not present and the representative, Mr Tsunke, never joined the link that was provided for the zoom conference. I enquired from the ELRC (twice) and from the representative as well via email and at 10:05, I decided to continue with the arbitration in default of the respondent.

2. According to section 138(b)(i) of the Labour Relations Act, if the party who had not referred the dispute to the Commission or Council, the Commissioner may continue with the arbitration proceedings in the absence of the party. The respondent was properly notified of this arbitration via email and the only response received from the representative of the Department of Education at 10:26 was that he was not able to connect due to the respondent’s internet that is down and has been down for a while.

Issue to be decided.

3. The issue to be decided is whether the respondent complied with the Collective Agreement Act no 4 of 2016, as amended in permanently transferring the applicant to another school if not a primary school in terms of its letter dated 23 January 2023.

Background to the dispute

4. This is a dispute brought in terms of the Collective Agreement no 4 of 2016 as amended regarding the transfer of serving educators in terms of the operational requirements as well as section 24(1) of the Labour Relations Act as amended. It is common cause that the applicant was an educator employed by the respondent at Katleho-Mpumelelo Secondary School from inception in 2016 in Sasolburg. The applicant was teaching Grade 12 Math’s Literacy and Grade 8 and 9 Technology. She received a permanent transfer letter dated 23 January 2023 stating that she is transferred to Isaac Mhlambi Primary School as from 01 February 2023, because of operational requirements. She received a second letter on 10 February 2023 to remind her to report to Isaac Mhlambi Primary School which she did.

5. The applicant’s case was that the respondent unlawfully/illegally transferred her to a new school without complying with the Collective Agreement act 4 of 2016 as amended. The respondent failed to intervene in the grievances that she had lodged against the principal. The applicant sought the transfer to uplifted or alternatively to be halt pending the finalization of the matter. She referred the dispute to the Council on 27 January 2023.

6. The parties agreed on a consolidated bundle of documents to be presented at the arbitration. It was received by all parties and sent to the ELRC, and the Panelist and it was marked as “A”.

Survey of evidence

The applicant, ML Manoto, Educator PL1, testified as follow after been sworn in:

7. In the absence of the respondent the applicant testified that she received a permanent transfer letter on 23 January 2023 to Isaac Mhlambi Primary School as from 01 February 2023 due to operational requirements. She rejected the letter as it was not done according to the Collective Agreement Act 4 of 2016 as amended for the transfer of serving educators. She was one of two identified to be in access and on 24 January 2023 she went back to her work and at this stage the Department had not yet responded to her grievances. She lodged a grievance and on 09 November 2022 it was acknowledged but no response was received. She lodged other grievances on 01 September 2022. The grievances letters were read, and it appears on page 14 and16 of the bundle. She also sent her grievances to SAGE and complaint that nothing was done about her grievances. They responded that in due course they will send an investigator.

8. One of the grievances was against the principal of the Katleho-Mpumelelo Secondary School, and she made sure that the applicant must be one of the identified educators that are in access, and she was so informed by the principal. The permanent transfer letter was read as it appears on page 8 and it states that she must report on 01 February 2023 at the primary school and teach Mathematics for Grade 7. She only reported on 13 February 2023 after she received the second letter as it appears on page 21 of the bundle. In this letter she was reminded to report before or on 13 February 2023 and the Department said that they will invoke the provisions of Section 14(1) (a) of Employment of Educators Act, 78 of 1998 which refers to abscondment from duty due to unauthorized absence.

9. When she reported on 24 January 2023 at her work, she saw that it was written next to her name that was scratched that she was transferred to another school although her transfer letter only indicated from 01 February 2023. This was done by the principal of the school. On 10 February 2023 she was still reporting at her school where she was working. On 12 February 2023 the principal told her that the Director wants to see her in the district office. She drove there and he wanted to understand why she was still at the Secondary School. She then received the letter telling her to report to the Primary School by 13 February 2023.

10. She was not given any opportunity to make any representations before 23 January 2023. She was not given enough time according to the provisions of the Collective Agreement Act 4 of 2016. She was also not given enough time to report to the new school. The representative of the applicant sent a letter to the Free State Department of Education on 27 January 2023 regarding the permanent transfer letter of the applicant. it states in (e) as follows: “Kindly be advised that your offices failed to comply with the Collective Agreement Act no 4 of 2016 in transferring out client, in particular the following clauses/sections B.6.1.1, B.6.4.1,B.6.2.4, B.6.5.2, B.6.5.7, B.6.5.9, B.6.6, and B.6.9.1.3.2 amongst other clauses; and (f) We therefore request that your offices withdraw your letter to our client dated 23/01/2023”.

11. The applicant gave and explained all her qualifications as appears in the bundle of documentation. She explained that she is an educator since 1992 and was always teaching in High Schools. She was teaching at different schools Math’s Literacy for different grades for 10 years. The High School where she was an educator since 2016 was where she also teach Math’s Literacy up to Grade 12. She also explained her results as can be seen in the documentation. By these explanations she confirmed that she is an excellent teacher and received recognition for it. She also stated that she also received an achievement certificate.

12. She stated that it was bad to sent her to a Primary School after being an educator in High Schools since 1992 up to 2023. In 2023 the learners have increased, and she could not have been the educator to be identified as access according to LIFO (Last in First out). She sought to be taken back to Katleho Mpumelelo Secondary School to teach Math’s Literacy for grades 10 to 12 or grade 8 and 9 from the reopening of schools on 12 April 2023. She has no grudges against the principal and can work closely with her. She further expected the respondent to intervene in her grievances within 14 days.

Submissions on behalf of the respondent

(1) The respondent was not present, and no submissions were made.

Analysis of evidence and argument

13. The representative of the applicant submitted that the respondent illegally transferred the applicant to a new school (Isaac Mhlambi Primary School) without complying with the Collective Agreement Act 4 of 2016, as amended. Furthermore the representative said that the respondent failed to intervene in the grievance that she lodged against the Principal of Katleho Mpumelelo Secondary School. The applicant was moved to another Primary School based on operational requirements on 01 February 2023 meaning within two working days instead of 30 days. There was no reasonable notice from 23 January 2023 to 31 January 2023 and she never had an opportunity to make representation before she received the letter of permanent transfer.

14. It is his further submission that the respondent did not follow the prescribed procedure and the applicant was always teaching at a Secondary School from 1992 up to 2023. On 24 January 2023, the applicant reported on duty at Katleho Mpumelelo Secondary School and was flabbergasted to notice that the School Principal wrote the words” transferred to another school”, on the register book, thereby preventing the applicant to sign in.

15. Due to the absence of the representative of the respondent I am not aware exactly what procedure they followed in transferring the applicant on 23 January 2023 to another school due to operational requirements. According to annexure A of the Collective Agreement Act no 4 of 2016 the following was not properly followed by the respondent: (1) The Principal, after consultation with the educator staff of the institution at a formal staff meeting, may recommend that educators who may be declared in addition, be absorbed in vacancies that exist or will exist in the near future; (2) If a decision has to be taken regarding two or more educators competing for the same post, the principle of LIFO (last in first out) shall be applied; (3) In terms of section 6 and/or section 8 of the Employment of Educators Act, (1998) the employer may transfer an educator who is in addition to another post in the department that matches her skill and experience; (4) The employer must first give the educator an opportunity to make written representations e.g. personal circumstances about the intended transfer to that specific school within 5 working days before a final decision is made; (5) Having made the final decision to transfer the educator to a specific school, the employer must give the educator reasonable notice of the date on which she must report for duty at the new place of work. Thirty (30) school days will be considered reasonable notice for purposes of this clause; (6) Notwithstanding the provisions contained above in sub-sections B.6.1 to B.6.4 and subject to the post provisions model, educators declared additional to the staff establishment may be retained in their original schools; (7) The best interests of learners in the province.

16. In analysing the aforementioned it is clear that the applicant has not been given an opportunity to make representations about the specific school to which the respondent intends to transfer the educator and the applicant has not been given reasonable notice of 30 school days on which the applicant must report for duty. As arbitrator I have not any jurisdiction to determine where the applicant shall be transferred to as this fall within the prerogative of the respondent. However, the correct procedure was not followed in identifying and transferring the applicant to the Primary School

17. I however decide that the permanent transfer to Isaac Mhlambi Primary School from 01 February 2023 must be set aside from 12 April 2023 and a fresh decision to be taken is referred back to the Free State Department of Education to determine where the applicant must be transferred to according to her skills, qualification and experience.

Award

18. The applicant, MS Manoto, has proved that the permanent transfer was not according to procedures prescribed in annexure A of the Collective Agreement Act no 4 of 2016, and it must be set aside from 12 April 2023 and referred back to the Free State Department of Education for a fresh decision where the applicant must be transferred to.

Signature:

Panelist: Gert van der Berg
Sector: Department of Education-Free State