ELRC126-23/24FS

ARBITRATION AWARD

Panellist: Asnath Sedibane
Case No: ELRC126-23/24FS
Date of Award: 28 August 2023


In the ARBITRATION between:

SADTU obo SAOLI, TEBOGO
(Union / Applicant)
and

EDUCATION DEPARTMENT OF FREE STATE
(Respondent)

Union/Applicant’s representative: Mr Desmond Serape (SADTU Official)
Union/Applicant’s address:
Respondent’s representative: Mr Thulo Tsunke (Respondent’s Official)
Respondent’s address:

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing between SADTU obo Saoli, Tebogo and the Education Department of Free State was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings on 10/08/2023. The matter was set down for arbitration in terms of section 186(2) of the Labour Relations Act 66 of 1996 (“LRA’’).

2. The proceedings were conducted in English and were both manually and digitally recorded. The applicant testified as the only witness in her case. The respondent called one witness, Mr Frans Mokati, Circuit Manager.

3. The applicant was present and was represented by Mr Desmond Serape, an official of SADTU. The respondent was represented by Mr Thulo Tsunke, an official of the Education Department (Free State).

4. The parties submitted bundles of documents. The applicant’s bundle was marked as bundle “A” and the respondent’s bundle was marked as bundle “R”.

5. At the end of the leading of evidence, the parties agreed to submit written closing arguments by no later than 17 August 2023. I have received the closing arguments which I have taken into consideration when making this award.

 PRELIMINARY ISSUES
6. No preliminary issues were raised by the parties.
ISSUES TO BE DECIDED
7. The dispute was referred to the ELRC by the applicant as an Unfair Labour Practice in terms of section 186(2) (a) of the LRA.

8. I am required to determine whether the respondent, by not affording the applicant an equal opportunity to act in the post of Principal at HTS Louis Botha Technical High School has committed an unfair labour practice against the applicant. If I find in favour of the applicant, I must determine the appropriate relief.

9. The relief that the applicant seeks is compensation.

10. After the narrowing of issues, the parties agreed that the following issues were common cause between them:

 10.1 The applicant is a Deputy Principal at HTS Louis Botha Technical High School. She has been in this position since 01 January 2018. She was appointed as a teacher on 01 JUly 2007.

 10.2 She earns a gross monthly salary of R 35 700-00.
10.3 The post of Principal at HTS Louis Botha Technical High School, at salary level 12, is currently vacant. The post was advertised in June 2023. It has been vacant since August 2021.
10.4 The applicant was appointed to act in the vacant post from January until June 2022. The other Deputy Principal, Mr Willie Van Tonder, was appointed to act in the position from August until December 2021 and again from July 2022 to date.
10.5 The acting allowance for this post is paid at salary level 12.
11. The parties agreed that the following facts were issues in dispute:
11.1 Whether the respondent committed an unfair labour practice against the applicant by not affording her an equal opportunity to act in the position of Principal at HTS Louis Botha Technical High School.
11.2 Whether the respondent is inconsistent in making acting appointments.
11.3 Whether the respondent is not transparent when making acting appointments.

 BACKGROUND TO THE DISPUTE
12. The applicant, Ms Tebogo Thulo is one of two Deputy Principals at HTS Louis Botha Technical High School. She was appointed as Deputy Principal on 01January 2018. The previous Principal of the school vacated the post in July 2021. The applicant acted in the position from January until June 2022 whereas her colleague, Mr Van Tonder acted from August to December 2021 and again from July 2022 and he is currently still the acting Principal.

13. The applicant has declared a dispute for unfair labour practice against the respondent relating to the acting appointment in the position of Principal at HTS Louis Botha Technical High School. The applicant seeks compensation in the event that the respondent is found to have committed unfair labour practice against her.


SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Ms Tebogo Saoli, testified under oath as follows:
14. She is a Deputy Principal at THS Botha Technical High School. The previous Principal left the school in August 2021. There was an agreement that the two Deputy Principals will act and rotate for six months in the Principal’s post until the post is filled.

15. Mr Van Tonder acted from August until December 2021. She (the applicant) acted from January to June 2022. Mr Van Tonder started acting again in July 2022 and is to date still acting.

16. She feels that she has been unfairly treated because there was an expectation that was created that there will be rotation. The system failed her and there was no communication to her with regards to the acting.

17. Mr Van Tonder was given more opportunities. He will stand a better chance to be appointed in the position due to the more experience he is getting. The fact that he is a white male in an ex-model C School has created the impression that he is better than her.

18. She lodged a grievance after she had expected to act again from January 2023. The SGB told her that Mr Van Tonder will act until March 2023 and she was referred to the respondent with regards to her grievance. The issue was not addressed by the respondent.

19. In terms of the advertisement of the post, preference would be given to a black female. The respondent has however ignored affirmative action.

20. Under cross-examination, Ms Saoli testified that the expectation to her was created verbally. They had been told by the then SGB Chairperson, Mr Mojaneng that there would be rotational acting between her and Mr Van Tonder.

21. She did not dispute that it was the prerogative of the SGB to make recommendations to the District Director regarding acting. She however contended that the District Director makes the acting appointment and that the District Director must oversee the fairness of the process.

22. She had approached the SGB and the current Chairperson, Ms Monnanyana had told her to speak to the respondent. She did not dispute that the SGB acted within their powers in terms of the South African Schools Act. She contended that the SGB went against their resolution.

 THE RESPONDENT`S CASE:
The respondent’s witness, Mr Frans Mokati, Circuit Manager, testified under oath as follows:
23. HTS Louise Botha Technical High School falls within his responsibilities.

24. In terms of the letter on page 2 of bundle “R” the SGB recommended Mr Van Tonder to act as Principal
from January 2023. For the SGB to make recommendations, they must meet and make the
recommendations in a properly constituted meeting.

25. Under cross-examination, Mr Mokati testified that he did not have a document in front of him to confirm
that Mr Van Tonder was recommended to act from August to December 2021. He confirmed that the
nomination to act on page 8 of bundle “R” was not signed by the Circuit Manager and the District
Director. He did not know why there were no signatures on the document.

26. He does not have any powers in the appointment to act. The SGB recommends. The question about the
Human Resources powers or their involvement in the process must be directed to HR.

27. The process of appointing the acting Principal at the school was fair and reasonable. He did not have
records of how long the applicant acted and how long Mr Van Tonder acted.

ANALYSIS OF EVIDENCE AND ARGUMENT

28. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only
referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of
the dispute.

29. The applicant has declared a dispute relating to benefits, in terms of section 186(2) (a) of the Labour
Relations Act 66 of 1995, which provides as follows:

186 Meaning of dismissal and unfair labour practice

(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an
employee involving-
(a) 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;

30. The applicant has led evidence and made submissions that the respondent has committed an unfair labour practice against her in not affording her the same opportunity as the other Deputy principal to act in the vacant Principal’s post at HTS Louis Botha High. According to the applicant she only acted for six months whereas her colleague acted for eighteen months.

 31. It is common cause that the applicant is a Deputy Principal at the school and that the Principal’s post became vacant in August 2021. It is also not in dispute that Mr Van Tonder, the other Deputy Principal at the school is currently acting in the Principal’s post and that he was recommended by the School Governing Body to act until the post is filled.

 32. The applicant has testified that the SGB had taken a decision in 2021 that the two Deputy principals would act in the position of Principal for six months at a time each, rotating amongst themselves until the post is filled. It is common cause that the first one to act was Mr Van Tonder who acted from August until December 2021. The applicant acted from January until June 2022. Mr Van Tonder acted again from July 2022 and is currently still acting.

 33. According to the applicant she had expected to act from January 2023 but on inquiring, she was advised by the SGB that they had resolved that Mr Van Tonder would continue to act until March 2023. Another resolution was taken thereafter that Mr Van Tonder would continue to act until the position is filled.

 34. The applicant contends that the SGB had created an expectation to her that there would be rotation in the acting and that she would be afforded an equal opportunity as her colleague, Mr Van Tonder. She avers that, in amending the resolution regarding the rotational acting, she has been prejudiced in that Mr Van Tonder would gain more experience and therefore stand a better chance of permanent appointment in the position.

 35. Mr Mokati testified that the acting appointment of Mr Van Tonder was made at the recommendation of the SGB and that the process was fair. He did not dispute that the appointment document that was part of the bundle of documents was not signed by the Circuit Manager and the District Director but according to him the appointment was above board.

36. The question that needs to be answered is if the respondent, by not appointing the applicant to act for the same period as the Mr Van Tonder has committed an unfair labour practice against the applicant. In order to determine this, I must consider what unfair labour practice relating to benefits entails.'

 37. The Labour Appeal Court in Apollo Tyres (Pty) Ltd v CCMA and others (DA/11) [2013] ZALAC 3 confirmed that in an unfair labour practice dispute relating to benefits, the onus is on an employee to prove that he/she has a right or entitlement ex contractu or ex lege or an advantage or privilege which has been offered or granted to an employee in terms of a Policy or practice subject to the employer’s discretion and that the employer exercised the discretion unfairly.

 38. It is clear from the evidence led in this case that the benefit that the applicant claims is not a benefit derived from a contract or from the law but one that could be derived from a Policy or practice. The applicant avers that the SGB in 2021 took a resolution that the two Deputy Principals would rotate in the position of Principal, for six months at a time. She has confirmed that this resolution was communicated to them verbally by the then Chairperson of the SGB, Mr Mojaneng who has since vacated the position of SGB Chairperson.

 39. It has not been disputed that the SGB, under the Chairpersonship of Ms Monnanyana, took another resolution in 2023 to appoint Mr Van Tonder to act in the position of Principal until the position has been filled.
40. The Labour Court in Aucamp v SARS(JS884/2011) [2013] ZALAZJHB 266; [2014] BLLR 152 (LC) in considering unfair labour practice related to benefits held that if the benefit is not a guaranteed contractual right per se, the employee could still claim same on the basis of an unfair labour practice if the employee can show that he/she was unfairly deprived of the same.
41. The applicant has not led any evidence that she was entitled, in terms of any Policy or practice of the Department to act in the position of Principal from January 2023. By the applicant’s own admission, the SGB had the prerogative to make recommendations to the District Director regarding the acting appointment. The SGB in this case did recommend that Mr Van Tonder continue to act in the position until it is filled. Even though no documentary evidence of the District Director making the appointment for the period was led, there was no dispute that the District Director did make the appointment and that he was entitled to do so.

42. Without a clear right to the benefit claimed, the applicant cannot succeed with her action. From the evidence of the applicant, it is apparent that she alleges discrimination. Discrimination does not find application under section 186 (2)(a) of the LRA. The applicant may however pursue an action for discrimination under the BCEA and in a different forum as the ELRC lacks the jurisdiction to deal with discrimination matters.

 43. The Labour Court held in SAPS v Sotheni and others (JR2236/16) [2020] ZALCJHB57 that, in dealing with alleged unfair labour practice pertaining to benefits the notion of unfairness cannot serve to create a right. The applicant must prove the existence of a right, even if it is subject to an employer’s discretion. If there is no right, there is no claim.

 44. Neither of the parties led evidence on the provision of any Acting Policy or practice of the respondent. I doubt that there can ever be any right to act in terms of the applicable Policy or practice. It is common cause that the SGB makes recommendations to the District Director on acting appointments and that Mr Van Tonder was the recommended candidate to act from January 2023. The applicant does not have any right to act in the position and is therefore not entitled to any relief.

 45. Based on the foregoing, I find that the applicant has not discharged the onus required to prove the unfair labour practice by the respondent relating to the provision of a benefit in this matter.

Award
1. The applicant has failed to prove on a balance of probabilities that the respondent has committed an unfair labour practice by not appointing her to act in the position of Principal from January 2023.
2. As a result of the aforesaid, the applicant’s application is dismissed.

Asnath Sedibane
ELRC Dispute Resolution Panellist