ELRC432-22/23LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT BURGERSFORT

Case No. ELRC432-22/23LP
Date: 15 August 2023

In the matter between

PHOKU SOLLY Applicant

And

LIMPOPO DEPARTMENT OF EDUCATION Respondent

ARBITRATION AWARD

Details of hearing and representation

1. This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearings took place at the Department of Education offices, Voorwats Buildings, Polokwane, and Department of Education, Sekhukhune East District offices, Burgersfort, Limpopo Province on 09 March 2023 at 9:00AM and 01 August 2023 at 10:00AM respectively. The Applicant, Phoku Solly represented himself, while the Respondent, Limpopo Department of Education was represented by Matlou M.M, its official. The proceedings were digitally voice recorded and conducted in English. The parties handed in bundles of documents which I marked as follows; the Applicant’s bundled were marked as BUNDLES A, D, E, and F. The Respondent’s bundles were marked BUNDLES B and Document C.


Nature of the dispute
2. The dispute was about an alleged non-payment of the Applicant’s salary by the Respondent. The Applicant is alleging that the Respondent failed to pay him salaries for the period 01 June to 30 October 2022.

Issues to be decided.

3. I must decide whether the Applicant was entitled to the salaries for the period 01 June to 30 October 2022. I must also determine an appropriate relief if it is found that the Applicant was entitled to the salaries.

Background to the dispute and common cause issues

4. The Applicant is employed by the Respondent as an Educator since 16 February 2004. He was transferred from Kgatlanong Secondary School in Ngwaase Circuit to Marole Secondary School in Leolo Circuit on 12 April 2010. He was temporarily transferred to Maandagshoek Science Laboratory on 05 March 2018. On 21 April 2022 the Applicant was instructed to go and report at Marole Secondary School. On 31 May 2022 he was reminded to go and report at Marole Secondary School. The Applicant was instructed to report at Marole Secondary School on 05 August 2015 and informed that failure thereof his salary will be frozen. On 27 May 2022 he was also reminded to report at Marole Secondary School and informed that failure to report at Marole Secondary School his salary will be frozen.

Survey of the Applicant’s evidence and argument
The Applicant testified for himself. Solly Matlapeng Phoku testified under oath and in English that;
5. He was placed at Maandagshoek Science Laboratory by the District Director, Mr. Nkadimeng T.G on 05 March 2018. He was working at Maandagshoek Science Laboratory from 05 March 2018 until 21 April 2022 when the District Director, Mr. Makola wrote him a letter instructing him to go and report at Marole Secondary School in terms of settlement agreement of 18 August 2011. According to him the instruction was in terms of Labour Law procedurally flawed. He expected the Respondent to absorbed him at Maandagshoek Science Laboratory since he had four (4) to five (5) years working there.
6. In September 2021 the District Director of Sekhukhune South, Mr. Makola confiscated the attendance register from Maandagshoek Science Laboratory, to check if indeed he was reporting for duty there. He approached the office of the District Director several times looking for the attendance register, and he was told that the Provincial Human Resources Division was keeping it. He then started to report in his memo book. The Applicant read his Bundle D, pages 1 to 10 and testified that these pages give the background of his dispute. He further read pages 11 to 14 of the same Bundle D, which he testified that they give the legal basis of the dispute.
7. During cross examination, Solly Phoku testified that he did not know the reason for the Respondent to freeze his salary in June 2022. Page 40 of Bundle D was a letter which he received on 25 April 2022 transferring him to Marole Secondary School. He did not report to Marole Secondary School after receiving the letter, because the temporary transfer to Maandagshoek Science Laboratory did not have time frame. He did not report to Makola Secondary School as instructed by a letter on page 21 of Bundle B, because the instruction was unlawful. He conceded that he was temporarily placed at Maandagshoek Science Laboratory.

Survey of the Respondent’s evidence and argument

One witness testified for the Respondent. Grace Kgaowelo Mashabela testified under oath and in English that;
8. She is working at Sekhukhune East District as a Senior Personnel Practitioner. Her roles are amongst other appointments and issuing out applications for transfer to the District Director for signature. The Applicant was not paid his salaries for the period 01 June to 30 October 2022 because he did not avail himself to the station he was told to go and work. The Applicant carried out the instruction to be temporarily transferred to Maandagshoek Science Laboratory and he should again carry out the instruction to be transferred to Makola Secondary School. The Applicant was supposed to report for duty at Makola Secondary School during the period 01 June to 30 October 2022. The Applicant assumed duty at Makola Secondary School on 31 October 2022.
9. During cross examination, Grace Mashabela testified that the temporary transfer of the Applicant to Maandagshoek Science Laboratory did not have a time frame. The Respondent wanted to sort out something she did not know when temporarily transferring the Applicant to Maandagshoek Science Laboratory. The correct place where the Applicant should have been reporting for duty during the period 01 June to 30 October 2022 was Marole Secondary School.

Analysis of the evidence and arguments
10. Section 8 (1) (c) of the Employment of Educators Act, 76 of 1998 as amended states that “Subject to the provisions of this Chapter-
(c) the Head of Department may transfer any Educator in the service of a provincial department of education to any other post in that department”.
Subsection 2 provide that there should be recommendations from the Governing Body (SGB). The Applicant was being transferred from Maandagshoek Science Laboratory to Makola Secondary School. Maandagshoek Science Laboratory was not a public school, but a laboratory. Therefore, there was no need for the SGB’s recommendation, since there was no SGB at the laboratory.
11. It is common cause that the Applicant was temporarily transferred to Maandagshoek Science Laboratory. It is also common cause that the Applicant was instructed to report back to Makola Secondary School and failing which his salary would be frozen. The Applicant was again reminded on several occasions to report at Makola Secondary School. The Applicant testified that the instruction to transfer him to Makola Secondary School was in terms of the Labour Law unlawful. However, there is no testimony from the Applicant in terms of a specific labour law which stipulates that. The Respondent testified that the District Director has the authority over all the educators and other employees in the district. This evidence was not challenged by the Applicant. The Applicant testified that he was reporting for duty at Maandagshoek Science Laboratory during the period in question, but he was signing in his pocketbook. The Applicant’s pocketbook is not an authorized document of the Respondent and the Applicant could not use it as authentic attendance register. The Respondent disputed this and testified that the Applicant was already given an instruction to report at Makola Secondary School. There was no need for him to continue reporting at Maandagshoek Science Laboratory, hence the freezing of the salary.
12 In view of the above I find that the Applicant has on the balance of probabilities failed to prove that he is entitled to the salaries for the period 01 June to 30 October 2022. The Applicant did not report for duty where he was instructed to go and report, that is Makola Secondary School. He refused to carry out a lawful instruction from the District Director.

Award
13. I find that the Applicant, Solly Phoku was not entitled to the salaries for the period 01 June to 30 October 2022.
14. The Respondent, Limpopo Department of Education was correct not to pay the Applicant salaries for the period 01 June to 30 October 2022.
15. The Applicant’s dispute is dismissed.

VICTOR MADULA
ELRC PANELIST