ELRC133-23/24 EC

Case Number: ELRC133-23/24 EC
Panelists: Malusi Mbuli
Date of Award: 21-10-2023

In the ARBITRATION between

PENELOPE LINDA SIWA
(Applicant)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 24 (5) of the Labour Relations Act No 66 of 1995 (“the Act”) as an Interpretation and Application of a Collective Agreement. It was set down for an arbitration hearing physically and was finalized on the 28th of September 2023.

2. The applicant, Mrs. Penelope Linda Siwa attended the hearing and was represented by Adv. Rwentela a legal representative appointed by the applicant. The respondent, Department of Education – Eastern Cape, also attended the hearing and was represented by Mrs. Annalie Slabbert an official of the respondent.

3. The matter proceeded on a number of days and was finalized on the 28th of September 2023 but the parties requested to file and filed their closing arguments not later than the 11th of October 2023 and both parties filed their arguments.

ISSUE TO BE DECIDED

4. I am required to determine whether the respondent had when Interpreting and Applying the ELRC Collective Agreement 4 of 2016 for Transfer of Serving Educators in Terms of Operational Requirements complied with the necessary prescripts of the Resolution, and if so the appropriate relief.

SURVEY OF EVIDENCE

5. Common cause facts:

- The parties are signatories to an ELRC Collective Agreement 4 of 2016 for Transfer of Serving Educators in Terms of Operational Requirements in place.

- The dispute between the parties is not about transfer or redeployment of a serving educator – the applicant to a post in another school.

- The applicant dispute the procedural and substantive issues related to her transfer or redeployment to the receiving school.

Issue in dispute:

- Whether the procedure and or criteria used in transferring and placing the applicant was followed or not.

- Whether the respondent has correctly interpreted and applied the ELRC Collective Agreement 4 of 2016 for Transfer of Serving Educators in Terms of Operational Requirements.

SURVEY OF EVIDENCE
6. Please note that this is just the summary of the evidence that was led at the hearing and does not represent the verbatim testimony of the witnesses who testified.
Applicants submissions
7. The 1st witness was applicant who testified that she started her teaching career working for the respondent in 2007 at Vulumzi High School. At the beginning of February 2013 whilst working in that school she was redeployed to Fumisukoma Primary School, the school that she was redeployed from in February 2023 and contesting redeployment from.
8. She stated that she has been at Fumisukoma Primary School for a period of about 10 years and has had a continuous service there until she was notified of her redeployment to Sophakama High School in February 2023.
9. At Fumisukoma Primary School where she is redeployed from throughout her teaching career there she has been teaching Isixhosa, English, Social Sciences, creative arts and life skills at a primary school level even though she has a high school teaching qualification.

10. She averred that she has been trained by Department on the teaching methods at Primary level and has attended workshops and CAPS curriculum training for primary school teaching. She stated that of all these subjects, she has taught English continuously the last ten years without interruption.

11. She testified that the staff members of Fumisukoma received staff development training on labour relations from Mr. Zingithwa, Mr. Hlekani and Dr. Pathar, however the issue of raising complaints and grievances was never brought up in these staff development trainings. She stated that she was not clued up with the process of filing complaints and grievances.

12. She confirmed that she served in a union leadership structure position but she never received any training on reporting structures and procedures as her service to the union was short lived and did not last for a long time.

13. She testified that she joined the Fumisukoma primary school through redeployment from a high school Vulumzi High School and did not have any issues with her redeployment then as everything was done according to book. She was given the notice that she will be redeployed to Fumisukoma well in advance with the process of identification and selection of who should be redeployed done in an fair, inclusive and transparent way.

14. She stated that as a result of that fair and lawful process, she accepted the redeployment without any dissatisfaction and settled at a primary school Fumisukoma High School and was received and accepted by the principal that chose her for his school.

15. The applicant testified that she had 57 periods in the year 2021 and her periods were reduced to 42 for the year 2022 without any explanation from the principal and that her classes were reduced from six to five classes without any explanation.

16. She feels that it is these preplanned reductions that rendered her the target for redeployment as this reduction left her with a weaker load than the other teacher, she was compared to teaching the targeted English language. She further stated that the school needs and criteria were not discussed by the stuff in their meetings.

17. She averred that that her redeployment to Sophakama High School does not serve the school needs of Sophakama High School and its leaners and that even those from Fumisukoma Primary will be prejudiced by the intended redeployment.

18. She testified that Ms. Kapela had told her that she will teach Economics at Sophakama High School, a subject she has not taught in her teaching career and to make to make matters worse she was not even given an opportunity to prepare for this move as she was given the letter that she is being redeployed to Sophakama on the 20th of February 2023 and expected to report at Sophakama on the same day the 20th of February 2023.

19. She stated that that in all the three meetings that were held in their school there was no discussion or contribution from the staff that was entertained in connection with the proposed dredeployment and that it was the principal who did the talking and left no room for input.

20. The 2nd witness of the applicant was Manjezi who testified that he was a Staff Secretary and his role was to take minutes in their staff meetings and he confirmed the minutes that were produced and stated that they are a true reflection of what transpired in those meetings.

21. He corroborated the applicant’s evidence that stated that the school needs, criteria were not discussed by the stuff in their meetings and the interests of the learners, would have been proposed but were not taken into account.

22. He confirmed that the transfer of the applicant for the subjects she is best trained for was unfair and the consideration of the subjects reflected on her certificate and ignoring all the experience she has in training of and teaching other subjects was unfair.

23. The 3rd and last witness of the applicant was Joyce Nomveliso Gquba – Marhenene who testified that she was also a teacher at Fumisukoma Primary School.

24. She also corroborated the applicant’s evidence and that of Mr. Manjezi that the school needs, criteria were not discussed by the stuff in their meetings and the interests of the learners were not taken into account.

25. He confirmed that she was present when the applicant was issued with the redeployment letter and that the applicant received her redeployment letter on Friday the 20th of February 2023 and the letter was directing her to report at Sophakama High School on the same day the 20th of February 2023.

26. She further stated that the applicant was not told about the dispute resolution mechanism or where to go in the event that she is unhappy with the redeployment. She further stated that the idea that the applicant was not coping with the subject she was teaching is unproved and only coming up in the proceedings

27. She said she believed that the principal acted unfairly and the process was not undertaken in good faith.

Submissions by the respondent.

28. The respondent’s representative called their witness, Mr. Ntsikelelo Vena who testified that he works for the respondent as a Principal at Fumisukoma Primary School and has been working as such since 2012. He averred that his school was previously affected by redeployment some time ago and this happened again in 2023 and the school had to lose one teacher through redeployment.

29. He stated that in the first redeployment the D.D.T. adjudicated the matter positively and they didn’t lose any educator but this time in 2023 the redeployment of an educator was inevitable. He stated that initially they were going to lose a number of educators but that number was reduced to 1 as a result of a number of factors after making representations to Mrs. Kapela at the department.

30. He stated that in terms of Chapter A of the Personnel Administrative measures the aim and core duties of the principal are inter alia are the following:

- “To ensure that the school is managed satisfactorily and in compliance with applicable legislation, regulations and personnel administration measures as prescribed;

- To ensure that the education of the learners is promoted in a proper manner and in accordance with approved polices;

31. He stated that the duties and responsibilities of the job specified varies to the needs of the school” and the Principal may recommend who should be redeployed because he knows his / her school establishment.

32. He submitted that he held a number of meetings at school where he consulted with the staff members and he produced minutes of such meeting and those meetings indicated that the educators were informed of the intended redeployment but there were no representations made or requested from the educators. He averred that the staff meeting cannot identify the individual educator to be redeployed.

33. He confirmed that the periods of Mrs. Siwa were lessened but that he could not have known about the PPN for the school when he lessened the teaching periods for Mrs. Siwa at the beginning 2022 as the PPN’s for schools are received at the end of the year i.e. the end of 2022. He further stated that the school has never lost posts before due to the constant high student enrolment.

34. He testified that when Mrs. Siwa was redeployed to his school he did not have any problems with her and he accepted her into Fumisikuma Primary School when she was redeployed from Vulumzi Senior Secondary School. He stated that he does not have any problems with Mrs. Siwa and he appreciated the fact that she raised concerns and gave her opinion during meetings as he wants educators to participate during school meetings;

35. He however stated that they had some issues related to her questioning him in the matters related to financial statements but he explained that and also called her into his office in the presence of Mrs. George and Mr. Hoboshe to speak to her about her attitude but he never threatened her in any way and didn’t target her as a subject of redeployment.

36. He averred that the CES - Employee Relations - Mr. Hlekani came to the school twice for staff development and amongst things that were dealt with was the explanation of the grievance procedures to the educators. He stated that he previously served on the District Task Team (DTT) as a union representative for SADTU for several years and he know the process that must be followed regarding redeployment of educators.

37. He reiterated that he held meetings with the Senior Management Team (HOD’s and Deputy Principals) of the school and they decided to take the needs of the school into account when deciding on the educators to be declared in excess. He stated that he also had a meeting with EDO of the school, Mrs. Kapela, in the presence of union representatives from SADTU and NAPTOSA and made a presentation in respect of redeployment as per the minutes dated 23 January 2023.

38. He stated that when they looked at the qualifications of the educators they discovered that the other educators had Primary School qualifications and the applicant had had qualifications at a Senior phase and that Mrs. Siwa struggled in teaching creative arts. He stated that when they reduced the number to 2 they were left with Mrs. Siwa and Mrs. Gqiba to consider and Mrs. Gqiba had an urge over the applicant because she can also be utilized anywhere.as she was also teaching Life Orientation and EMS and had Primary School qualifications

39. He averred that allocation of classes is a prerogative of the Principal and he also explained the time tables of the educators and stated that she had a good working relationship with his educators and has been accommodative of Mrs. Siwa and other educators too even though Mrs. Siwa was sometimes disrespectfull. He stated that he did not want to loose any educator even Mrs. Siwa.

40. He testified that Mrs. Siwa did receive the letter dated 30 January 2023 (Declaration as additional to the 2023 post establishment of Fumisukoma Primary School) and the list of schools where she could be accommodated, according to her profile, was attached to the said letter. He averred that the applicant refused to sign for this letter.

41. He stated that Sophakama High School does not offer Economics which Mrs. Siwa claimed to be forced to teach but this statement was not supported by any document or any form of direct evidence. She stated that the school offers EMS for which the applicant has been trained. He stated that he called the applicant to his office on 17th February 2023 to serve her with the placement letter of Sophakama High School but she refused to take the letter, thus the date of 17 February 2023 and signature of the principal on said letter.

42. He stated that the applicant eventually took the placement letter on 20th of February 2023 and he did tell her that she can make presentations to the District Task Team if she had concerns about her placement but Mrs. Siwa did not address her concerns in respect of her placement at Sophakama High School. He stated that instead the applicant chose to make serious accusations against him. He stated that the applicant was supposed to make presentations about her concerns in terms of the placement and if that had happened she would have been assisted by the District Task Team because several redeployed educators were assisted by the District Task Team upon presenting their concerns with placements.

ANALYSIS OF EVIDENCE AND ARGUMENT

43. A dispute over the interpretation of a collective agreement exists when the parties disagree over the meaning of a particular provision and a dispute over the application of a collective agreement arises when the parties disagree over whether the agreement applies to a particular set of facts or circumstances. Or that the agreement has not been applied correctly to a particular set of facts.

44. Section 23 of the LRA provides that the collective agreement is binding on the parties to it and also takes precedent over the provisions of the Act for whole period of that collective agreement. In this dispute the transfer at issue is regulated by the provisions of Collective Agreement No. 4 of 2016 On Transfer of Serving Educators in terms of Operational Requirements (hereinafter referred to as "the agreement").

45. The agreement outlines the processes to be followed and is explicit on the obligations and rights of parties involved and applicant disputes the interpretation and application of the said agreement as it relates to her transfer.

46. When interpreting collective agreements arbitrators should follow the judgment of the LAC in North East Cape Forests v SAAPAWU & others (2) 1997 (18) ILJ 971 (LAC) “which states that:

- A collective agreement in terms of the Act is not an ordinary contract and the context within which a collective agreement operates under the Act is vastly different from a commercial contract. Froneman DJP has indicated that the primary objects of the Act were better served by a “practical approach to the interpretation and application of collective agreements rather than by reference to purely contractual principles.” This is not to say however that the ordinary principles of interpretation of contract are never appropriate when interpreting and applying collective agreements. In Northern Cape Forests the Court merely stressed that the interpreter should ask the further question whether an interpretation yielded by these principles accords with the objectives of the LRA. The fact is that a collective agreement is a written memorandum which is meant to reflect the terms and conditions to which partiers have agreed at the time that they concluded the agreement. The courts and arbitrators must therefore strive to give effect to that intention. Thus the Courts frequently apply the ‘parole evidence’ rule – that is that evidence outside the written agreement itself is not generally permissible when the words of the memorandum are clear - when interpreting collective agreements.”

47. As far as I could establish there is no dispute over or about the meaning of any provision in the clause but the parties are in dispute on the application of the agreement. I must say at this stage that the respondent did not call a number of relevant witnesses to explain the process, corroborate the evidence of the main witness they called. This led to a number of issues and evidence not corroborated on materiel aspect.

48. Corroboration in the presentation of a case and leading of evidence is very important and the cautionary rules of evidence teaches us that the evidence of a single witness must be approached with caution. I shall therefore deal with and evaluate the evidence led at the hearing in consideration of this background because also in Tshishonga v/s Ministry of Justice and Constitutional Development & other (2007) 28 ILJ 195 (LC) the court said that an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavorable to him or even damage his case.

49. In Small v Smith 1954 (3) SA 434 (SWA) at 438 Claassen J said: "It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness and if need be to inform him if he has not been notified thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction in defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved. Once a witnesses' evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume, in the absence of a notice to the contrary, that the witness's testimony is accepted as correct.

50. The applicant’s representative led clear, coherent and corroborated evidence of 3 witnesses which evidence is obviously disputed by the single witness of the employer the Principal. This evidence point to the fact that the issue of redeployment was not discussed with staff members at the school in question.

51. That the applicant was not given an opportunity to make representations before she was redeployed and in this regard it must be noted that hearing the other side of the story is an established principle of our law called the audi alterum partem rule.

52. The respondent insisted that the letter of redeployment was given to the applicant on Friday, the 17th of February 2023 for the applicant to report to Sophakama the school she was redeployed to on Monday the 20th of February 2023.

53. The applicant and her witness Joyce Nomveliso Gquba – Marhenene who was there when the letter was issued say it was issued on the 20th of February 2023 the same day the applicant was supposed to report for duty at the new school. I have no option but to accept the applicant’s version and if this happened like this it was unprocedural.

54. I agree with the applicant’s representative that even if the letter was served on the 17th February 2023 it will only be one working day earlier or no working day for that matter and that still falls short by far of the reasonable period as stipulated per B.6.5.9 Agreement.

55. The transfer as governed by the agreement has various phases of engagement between employer and employees, ranging from the principal having to inform the staff of the changes in their institutions post establishment, as per B.6.3 of the agreement
- "Each principal must inform his/her staff of the institution's new educator post establishment and of the procedure, as set out in the next paragraph, that will be followed in identifying educators who cannot be accommodated on the new establishment. This information must be accessible to all members of staff".

56. To communicating the decision to transfer the educator to a specific school, as per B.6.5.9 of the agreement
- "Having made the final decision to transfer an educator to a specific school, the employer must give the educator reasonable notice of the date on which he or she must report for duty at the new place of work. Thirty school days will be considered reasonable notice for purposes of this clause".

57. Clause B.6.4.1 of the agreement provides:
- "the principal, after consulting with the educator staff of the institution at a formal staff meeting, may recommend that educators who may be declared in addition...." 8.6.4.2 "after considering 8.6.4.1 above the Circuit/District manager together with the principal shall identify the educators in addition, taking into account the following: 8.6.4.2.1.

58. In Simelela & Others v Members of the Executive Council for Education, Province of the Eastern Cape & Another (2001) 22ILJ 1688 (LC): the court said that Public Sector employers must adhere to applicable legislation and the requirements of fair administrative action before transferring employees. Employees are entitled to a hearing before a decision is taken.

59. Similarly, In Member of the Executive Council, Department of Roads and Transport , Easter Cape v Giyose, the court went further and held that the common law contract of employment must be developed under the constitution to recognize not only the right to a pre-transfer hearing but also the right to challenge the reasons for the transfer.

60. In Nxele v Chief Deputy Commissioner, Corporate Services department of Correctional Services & Others (2008) 29 ILJ 2708 (LAC) the court held: a public servant must be informed that her transfer is being considered and she must be given reasons for the proposed transfer and an opportunity to make representations before a final decision is made.

61. It is not easy to deal with the substantive issues in this matter as there were no representations made by the applicant and that I cannot make a finding on this issue. The applicant fortunately has prayed that the matter set aside and restarted.

62. This in the circumstances is not an unreasonable prayer to make as those who have authority to execute the collective agreement have to do their job fair and in compliance with the collective agreement.

63. In the circumstances I make the following award.

AWARD

64. The respondent has not complied with the relevant provisions of the ELRC Collective Agreement 4 of 2016 for Transfer of Serving Educators in Terms of Operational Requirements when transferring the applicant in that she was not given an opportunity to make representations before she was redeployed .

65. The transfer or redeployment of the applicant to her original school Fimisukoma Primary School to the receiving school Sophakama Senior Secondary is hereby set aside with effect from the 01st of November 2023.

66. The respondent, is ordered to restart the transfer or redeployment process of this post not later than the 28th of February 2024.

67. As a consequence of this award the applicant will report for duty at the Fumisukoma Primary School with effect from the 01st of November 2023.


Signature:

Commissioner: Malusi Mbuli