ELRC552-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:

NAPTOSA obo BR Makhanya “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”

AWARD

Case Number: ELRC 552-22/23 KZN

Date of Award: 7 December 2023

NONHLANHLA DUBAZANE
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
DETAILS OF HEARING AND REPRESENTATION

1. The matter was heard on 3 & 29 May 2023, 13 June 2023, 17 & 18 August 2023, 7 & 8 November 2023 respectively under the auspices of the Education labour Relations Council. Proceedings were conducted on zoom
2. The Applicant, BR Makhanya was present and represented by Mr R Jugath, a NAPTOSA official. The Respondent is KwaZulu Natal Department of Education (the Department) and was represented by Mr Mr M Bejanath.

ISSUE TO BE DECIDED

3. I have to determine whether the Department failed to interpret and apply the Council Collective Agreements.

BACKGROUND TO THE ISSUE

4. The Applicant referred a dispute relating to interpretation and application of the Council Collective Agreements to the bargaining council on the 3rd September 2020.

5. The matter was conciliated and remained unresolved. A certificate of non – resolution was issued.

6. Arbitration proceedings took place on the dates aforementioned.

7. The Applicant averred that the Respondent failed to interpret and apply two Collective Agreements, namely, HRM Circular 61 of 2020, HRM 4 of 2016 and Collective Agreement 01 of 2017 when it declared him a surplus educator to the establishment, namely, Rossburgh High School.

8. The Respondent stated that it applied the Collective Agreement correctly in the Applicant’s case.

9. Parties handed in bundles of documents marked Annexures A - E.

SURVEY OF EVIDENCE AND ARGUMENT

Common cause facts

10. The Applicant was permanently placed as a Maths educator at Rossburgh High School.

11. The Applicant was suspended from duty on 18 October 2012. He was charged based on allegations of having committed a misconduct. He was later dismissed on 12 December 2012.

12. He appealed against the dismissal in which case he remained on precautionary suspension pending the outcome of the appeal.

13. On 12 April 2019 the Applicant was released from Rossburgh Secondary School (Rossburgh) and placed on temporary transfer at Apollo Secondary School (Apollo) in the Umkhumbane Circuit for 12 months. On 15 April 2019 he refused to sign the copy of the letter notifying him about that placement.

14. It is stated in the Applicant’s letter of temporary transfer to Apollo Secondary Schoo (Apollo) that his learning area is Maths, he was teaching grades 8-12, and also he was to occupy the vacant post that was declared at Apollo on a temporary basis.

15. On 15 July 2019 the Applicant was placed on temporary transfer at Phambili High School in the Kwakhangela Circuit. The Principal of Rossburgh was notified about the said transfer. The letter which was sent to the Principal appearing on page 17 of Annexure B reads as follows:

‘’TRANSFER OF A SURPLUS EDUCATOR (RELEASING SCHOOL)
2.1 …. As you are aware that Mr/ Mrs/ Miss Makhanya BR (63736926) was declared surplus at your school on the basis of HRM Circular No.51 of 2016, he or she has been placed at PHAMBILI HIGH SCHOOL.
2.1 Rank of Educator : PLI
2.2 Learning Area/s : SP/FET
2.3 Grades : 10 to 12…


16. According to the contents of the letter dated 31 July 2019 which appears on page 18 of Annexure B, his suspension was uplifted.

The letter reads
‘’1. You were placed on suspension as a precautionary measure pending investigations into allegations levelled against yourself.
2. These investigations have been concluded and the disciplinary hearing against yourself has been finalised.
3. You are consequently requested to report to your supervisor on receipt of this letter, in order to facilitate your return to the work station. He received the same on 19 August 2019.

17. On 13 February 2020 the Department wrote a letter to the Principal of Rossburgh High School informing him that Mr Makhanya had been placed at Wingen Heights Secondary School in Burlington circuit and his learning area was Accounting, Business Studies and Natural Science for grades 8 – 12. On the same day the Department sent a letter to the Applicant and the Principal of Wingen Heights Secondary School informing him about the Applicant’s placement at the school.

18. The Department sent a letter dated 11 February 2021 to the Principal of Rossburg Secondary School, Mr Khan. The letter reads:

‘’TRANSFER OF A SURPLUS EDUCATOR (RELEASING SCHOOL)
2.1 …. As you are aware that Mr/ Mrs/ Miss Makhanya BR (63736926) was declared surplus at your school on the basis of HRM Circular No.61 of 2020, he or she has been placed at CHESTERVILLE SECONDARY SCHOOL.
2.1 Rank of Educator : PLI
2.2 Learning Area/s : ACC / BUS STUDIES / ECONOMICS
2.3 Grades : 10 to 12…

On the same day the Department sent letters to Mr Makhanya and the Principal of Chesterville Secondary School informing them about the Applicant’s placement at the school.

19. Subsequent thereto the Applicant referred a dispute relating to Interpretation or application of Council Collective Agreement 4 of 2016, and also the Council Collective Agreement 1 of 2017.

20. Clause 4 of HRM Circular No. 61 0f 2020 provides for the procedure for the identification of educators additional to the educator post establishment.

21. Clause 4.1.1 provides ‘’The process of declaration of vacancies and educators additional to the educator post establishment must be consulted upon by principals with educator staff of the institution as outlined in the circular. The declaration of educators must be undertaken in a fair, transparent and objective manner and should not be used as a punitive measure against educators.

22. Clause 4.2.1 provides ‘’Where schools have experienced a decrease in post allocation or a change in curriculum needs that results in educators being identified as additional to the educator post establishment, principals are required to declare these educators additional to the educator post establishment in consultation with the educator staff of the institution at a formal staff meeting utilising Annexure A.

23. Clause 4.2.2 provides ‘’Educators declared additional to the establishment MUST complete a profile form, namely, Annexure C. All educators that are declared additional to the establishment will be matched and placed at the level of the Circuit Management Task Team (CMTT), District task Team (DTT) or Provincial Task Team (PTT) as the case may be. Those that have not been placed at the level of the CMTT, DTT or PTT must be allocated a teaching workload at their original school until a placement is confirmed.

24. Clause 4. 4 provides ‘’Identification of Level 1 Educators Additional to the Establishment.

4.4.1 permanent educators must be classified according to the main subject or subjects / group of subjects (Secondary school) or phase (Primary school) taught in the previous year….
4.4.3 Considering the approved curricular needs of the school for the previous year, the principal allocates the permanent qualified educators in substantive posts, in terms of their main subject or subjects / group of teaching subjects in the previous year into the relevant subject /s or phases.
4.4.4 Should two or more educators compete for the same post after taking into account the curricular needs, the principle of LIFO* must be applied.’’
*LIFO refers to an educator’s current years of continuous service as an educator in the department and not the number of years that an educator serves at a particular school.
4.4.6 Clause 4.4.12 provides ‘’All educators that have been identified as additional to the establishment, will be matched and placed into vacant substantive posts in terms of their preference by the CMTT within the CMC as a first step and then at the level of the DTT and finally at the level of the PTT based on their preferences contained in form PF1. Every effort must be made to place such educators within the Circuit.
4.4.7 Clause 5.6.5 provides ‘’All attempts will be made to place educators as close as possible to their original schools.
4.4.8 Clause 5.6.7 provides ‘’Educators must complete a form marked Annexure D and indicate their order of preference. This must be submitted to the relevant District Office by the School Principal.’’

25. All educators that have been identified as additional to the establishment in excess of two, will be matched and placed into vacant substantive posts in terms of their preference by the CMTT within the circuit as a first step and then at the level of the DTT and finally at the level of the PTT based on their preferences contained in form PFI. Every effort must be made to place such educators within the Circuit.

26. Clause 7 provides ‘’Aggrieved educators must follow normal grievance procedures. In this regard, educators must use the attached form Annexure E. In the event an educator declared additional lodges a grievance, the said educator must remain at her / his current school until the grievance is finalised.’’

27. It reflects on the document titled ‘’Updated Final Educator Post Establishment 2021, appearing on page 64 of Annexure that, as at 4 November 2020 Rossburgh High School was entitled to 33 posts and 26 were allocated for level 1 educators. The document on page 65 of the same bundle reflects the number of educators at Rossburgh High School at the time.

28. The Applicant was at Rossburgh High School until 31 December 2019.

29. The Applicant was transferred to Chesterville Secondary School in December 2022 and he remained in the same school until September 2022.

30. The Applicant is currently placed at Merebank Secondary School.

Applicant’s case

31. The Applicant took an oath and gave the following evidence. In summary and of importance in this case, he said that: The letter on page 1 of bundle D reflects the name of Mr Khumalo who is a professional teacher who was his replacement at Rossburgh high School in the Mathematics post whilst he was at home waiting for the outcome of the appeal. The letter is dated 22 September 2022.

32. On 22 April 2019 he received the outcome of appeal dated 1 July 2013. No one had contacted him prior thereto until he called the Department’s Pietermaritzburg office to make enquiries about the outcome. Thereafter the Principal called him and gave him the transfer letter to assume duties at Apollo Secondary School.

33. He (Mr Makhanya) took the letter of transfer to Apollo High School and Apollo Principal said that he was shocked because no one gave him (Apollo Principal) his (Mr Makhanya’s) letter of transfer. He (Mr Makhanya) was on Rossburgh pay roll whilst he was waiting for the outcome of his appeal. He returned to Rossburgh High school upon receiving the outcome of appeal but the school did not give him a teaching load again.

34. Rossburgh could not have replaced him with another educator if he was still on its staff establishment in 2019 and 2020. He was still occupying a post at Rossburgh High School then.

35. The documents on pages 6, 7, & 8 of Annexure B show his temporary transfers to other schools. He was transferred to so many different schools but he did not know the reasons behind the said transfers. Also there were no fair and transparent procedures that were followed for moving an educator who is a surplus educator to other schools.

36. From 2019 he was moved to 8 different schools and he spent only one day at Bonella High School. He spent the longest period in Chesterville High School which was more than 18 months’ duration. He resides in Chesterville.

37. The movements have affected him as the educator as he was so disoriented. It seemed as if the Department was trying to push him out of Rossburgh and it felt as a punitive measure against him. His work as the educator has been affected. The movements caused him and his family a lot of stress, he is even affected mentally. He is currently at Merebank Secondary School which is a temporal placement, the duration which is 12 months. He does not meet Merebank’s curriculum needs.

38. Under cross examination when he was asked if, on his return to Rossburgh, he expected the school to readjust the curriculum in order to accommodate him whilst it was functioning, his response was that he is an employee and it is up to the school to give him anything to do in respect of which he will comply. He cannot do anything if they do not give him work.

39. He conceded that the payroll sheet on page 66 of Annexure B confirms that he was still on the establishment of Rossburgh High School and his salary advice was sent to the same school.

40. When it was put to him that Rossburgh could not accommodate him in its curriculum, his response was that he had no knowledge about that, and also he is still part of Rossburgh according to the contents of the letter on page 18 of Annexure B which informed him about the upliftment of his suspension. It is indicated in the letter that his work station is Rossburgh and the Department knows that he is supposed to be at Rossburgh.

41. The document on page 1 of bundle D dated 31 July 2019 also shows that he is the Maths educator at Rossburgh.

42. When it was put to him that, at the time the letter notifying him of the upliftment of his precautionary suspension was sent to him, Rossburgh High School could not accommodate him and the HOD was trying to accommodate him in schools where he could gainfully be employed, his response was that he was gainfully employed at Rossburgh, and also due notification about such circumstances should have been issued to him. He also said that he was a Maths teacher, Rossburgh High school tried to get a teacher to teach Maths in his absence, and therefore it constitutes punitive measures if Rossburgh could not accommodate him.

43. When it was put to him that he was suspended approximately 7 years ago, he disputed such and said that, according to the contents of the letter on page 5 of Annexure D dated 31 July 2019, he was consequently dismissed, then he lodged the appeal, and the Department was in possession of the outcome of the appeal on 1 July 2013, which means that the matter was resolved within 6 months after the appeal.

44. He conceded that Rossburgh could not wait for him hence Mr Khumalo’s appointment.

45. He also said that: he had no knowledge that Rossburgh High School curriculum needs changed in the 7 years of his absence from the school.

46. Rossburgh High School did not apply clause 4.1 of HRM Circular 61 of 2020 appearing on page 50 of Annexure A in that: Firstly, the school declared him as surplus educator whilst he was at home and before the upliftment of his suspension. He was expecting the upliftment of suspension letter but received the letter of transfer to Apollo dated 16 April 2019, indicating he had been declared surplus educator. He could not work temporarily at Apollo whilst he was still in suspension.

47. He had not received documents indicating that Rossburgh High School had declared him a surplus educator in his absence, but he was only given a letter of temporary placement at Apollo by Rossburgh Principal. It is stated in the letter on page 103 of Annexure B, under paragraph 6.2, that he was a surplus educator in the Commerce Department which is incorrect information because he was not employed at Rossburgh High School as a Commerce educator but he could assist in the Commerce Department to ensure there were no issues of non-compliance as he is also a Commerce educator. At one stage he assisted by teaching Maths and a load in Accounting when one educator by the name of Mrs Ramlukam went on maternity leave.

48. During the meeting to declare him a surplus educator to the establishment, he raised the issue that Rossburgh High School hired a Maths educator whilst he was on suspension but no one was interested to listen. He lodged a grievance and submitted that the process was not transparent, however, he complied when he was given a letter transferring him to Chesterville High School. He believes in ‘comply and complain later’ principle.

49. When it was put to him that, in the educator profile form, he completed ‘Maths, Business Management and Accounting as his areas of specialisation, and therefore he is more of Commerce educator, his response was that he did not say that he was not a Commerce educator, but he teaches both Maths and Accounting, and also considering that he was specifically employed at Rossburgh to teach Maths. He further said that it is indicated in his Assumption of Duty form that he was placed there to teach Maths, and that is the reason the school specifically needed someone to teach Maths in his absence. The conduct of declaring him a surplus was a punitive way of removing him from school.

50. When it was put to him that, once he was suspended the curriculum needs of the school could have changed, his response was that he was teaching Maths and the school hired someone to teach Maths, thus there was no curriculum change at that stage. He went on and said that the Department did not follow the right process in his case as many Maths teachers joined the school after him but the Department decided to remove him from the school. He knew about this information because the HOD, namely, Mrs Dube called him to attend Science Departmental meeting and she introduced her to other educators who teach Maths.

51. He also said that someone wrote his CV appearing on page 119 of bundle B and it is the incorrect CV. He disputed that the employment history suggests that he was ‘’very much Commerce educator’’.

52. He believes that, whilst an employee is still on suspension, he or she cannot perform duties or sign any documents until the suspension is uplifted, which was not the case with him as the Principal called him to come and sign transfer letter during his suspension. That was another punitive measure that was taken as an attempt to remove him from Rossburgh High school. Reference is made to paragraph 4.3 of the letter appearing on page 1 of Annexure B which reads:

‘’During your suspension, you are not permitted to access any government building which falls under the control of the Department or to utilize any resource of this Department unless you are instructed to do so by an authorized Department official or given prior approval to do so.’’

53. The LIFO principle was not followed in his case and no one paid attention to his grievance. The procedure was not fair. There was no transparency. He was just forced to move out of Rossburgh.

54. Also the Principal of Rossburgh High School, namely, Mr Khan called him to the meeting with the SGB whereat, the SGB chairperson said they were told by the Principal to inform him that they did not want him in the school.

55. Also according to the 2020 PPN there were vacancies at Rossburgh High School and therefore there was no need for the school to declare any educator as surplus but the school tried to declare him as a surplus educator. Firstly, Mr Khan called him to a meeting and said that he must voluntarily declare himself as a surplus educator so that he (Mr Khan) would move him (Mr Makhanya) out Rossburgh High Shool. Mr Khan said that he did not want him (Mr Makhanya) at Rossburgh. He refused to ‘voluntarily declare himself excess’ to which Mr Khan said that he was going ‘to make a way out for him (Mr Makhanya) from Rossburgh’ if he did not do as he was told. There was no need for Mr Khan to declare anyone surplus to the establishment. He (Mr Makhanya) was not happy that Mr Khan asked him to voluntarily declare himself a surplus educator and the question that should be asked is: ‘’Of all the educators in Rossburgh High School, what was the reason Mr Khan wanted him to declare himself a surplus educator?’’

56. Mr Khan placed him in another department so that it would be easy to push him out of the school because there are more educators teaching Commerce in the Rossburgh High School. The Head of Commerce Department, Mrs Thompson once had a meeting with him and all Commerce educators whereat she declared that he did not belong in Commerce but Maths Department. She also said that she was instructed by Mr Khan to apply the LIFO principle in Commerce Department however she did not know what process she had to follow.


57. He (Mr Makhanya) complied with an instruction to take a transfer and he was asked to sign a form appearing on page 108 of Annexure B. He chose Mayville Secondary School, but the Department did not transfer him to Mayville but to Chesterville High School. It was said at Chesterville High School that he did not meet the school curriculum. He had chosen the school where he was qualified to teach at. He was forced to sign the same document when the Principal declared him surplus educator.

58. He conceded that he attended the staff meeting which was held on 2, 3, 4 December 2020 and the minutes of the meeting appear on page 82 of Annexure B. He also said that he had a right to be given clarity in the meeting.

59. When it was put to him that it is recorded in the minutes on page 90 of the same bundle ‘’COMMERCE – there are no vacancies’’, his response was that Maths and Life Science fall under Science Department. He also stated that he raised objections in the meeting and said that he is a Maths and not a Commerce educator.

60. When it was put to him that his objection does not reflect in the minutes, his response was that he had no knowledge who wrote the minutes, but it seems the minutes were recorded in a way to favour someone.

61. In the meeting which was held on 4 December 2022 Mr Khan introduced to him Mr Gabela as the chairperson of the meeting yet Gabela said nothing during the meeting. He (Mr Makhanya) even asked Gabela to explain the process of declaring an educator a surplus educator. It is recorded in the minutes appearing on page 98 of Annexure B that he (Mr Makhanya) said the following in the meeting:

‘’he (Makhanya) was asked to voluntary declare himself a surplus in the school, without any process; he was not denying that he is a Commerce teacher as well as a Maths teacher; he was not happy with the process and claimed the Principal wanted him out.’’

62. He (Mr Makhanya) shared in the meeting that he was not happy with the entire process, and as a result, he wrote a grievance because no one was listening to him.

63. When it was put to him that: he was invited to the meeting; he attended the meeting and therefore the process was handled fairly, he listened to the discussions, he said that he was not happy with the process, and also Mr Khan wanted him out of Rossburgh High School; in response he disputed that the process was fair. He said that even Mr Gabela did not explain the process, and also It was his right to be given clarity even if he was present in the meeting.

64. He had submitted his curriculum vitae to Rossburgh, and was thereafter called and appointed as a Maths teacher. He signed the Assumption of Duty form, and was introduced as a Maths teacher to others, but then he was being treated as the Commerce teacher because they wanted to remove him from the school, and that started with the request from Mr Khan that he must declare himself a surplus educator.

65. He was not certain about the contents of his CV appearing on page 121 of Annexure B. The contents of the CV have changed from what he had submitted to the Department.

66. He conceded that the school curriculum changed from 2013.

67. The Applicant argued that the Respondent declared him a surplus educator as a punitive measure to remove him from Rossburgh High School.

The Respondent’s case

68. Mr Muhsadiq Khan testified as the Respondent’s first witness. In summary and of importance in this case, he informed us that he occupies a position of Rossburgh High School Principal.

69. He said that in 2012 he requested the Department to appoint a Senior Maths teacher for Rossburgh High School when the incumbent, Mrs N Sewpersadh applied for a transfer. Arrangements were made for him to meet with Mr Makhanya. They met and Mr Makhanya wanted a transfer from his school. He sent Mr Makhanya’s relevant documents including his CV to the Department and the Department approved both Mr Makhanya’s and Mrs N Sewpersadh’s transfers. They both had to assume duties on 10 April 2012.

70. He (Mr Khan) knows Mr Makhanya as a Senior Maths educator at Rossburgh High. Mr Makhanya taught at the same school for the duration of 7 months starting from when he joined the school until 23 November 2012.

71. Mr Makhanya elected not to speak at his disciplinary enquiry which led to his dismissal.

72. He (Mr Khan) received a letter notifying of upliftment of suspension of Mr Makhanya on 20 August 2019. The letter concluded with well wishes for Mr Makhanya and the Department stating that it was trusting that he would make a positive contribution in educating the learners.

73. After Mr Makhanya’s suspension was lifted, Mr Makhanya did not return to Rossburgh High School. He (Mr Khan) was aware that Mr Makhanya was already in negotiations with the Department’s officials due to the number of transfer letters that were issued to him. Mr Makhanya’s learning areas were specified in some of the letters, and these include Mathematics / Physics / Accounting / Business Studies. He (Khan) was not involved in any of Mr Makhanya’s movements, except for that he received the letters notifying him (Mr Khan) about the said movements. He was unaware of Mr Makhnya’s movements to Bonella, Wingens Heights, Dumisane Makhaye schools.

74. With regards to the allegations that the school did not follow procedures when Mr Makhanya was declared a surplus educator in 2019, firstly, there was no process that was conducted to declare excess educators in Rossburgh school, from the time he (Khan) joined the school in 2011 up until 2019; In 2020 the process of declaration of vacancies and excesses was put in place. The meetings took place on 2, 3 & 4 December 2020.

75. Mr Makhanya moved to various schools, and on his return to Rossburg High School in 2020 he (Khan) did not have a teaching load for him.

76. On Mr Makhanya’s return to Rossburgh in October 2020 and upon verification exercise with the then SCM Superintendent of Education Management by the name of Mr C Timothy, Mr Makhanya could not be accommodated in the Maths Department, which information he (Khan) shared with the Head of Mathematics department, namely, Mrs Dube. They looked at ways in which they could give Mr Makhanya some work in the department and all their posts were full.

77. In terms of the HRM Circular 61 of 2020 which appears on page 34 of bundle B, he was required to conduct a process of declaring surplus educators, which he did. The notices to attend the meeting were issued, the meeting was held with staff over 3 days, attendance registers were signed, and minutes were taken. The circular was given to every person who attended the meeting.

78. His knowledge is that Mr Makhanya is Commerce educator, He established that when Mr Makhanya told him that he wants to teach Accounting and Commerce studies which are the learning areas where he excels. Teaching the same subjects as well as Business Studies was his preference, however that is not possible in the school because there are teachers who have been given their loads via a democratic process in terms of their subject specialization.

79. Mr Makhanya was carrying the load of Mrs Sewpersadh when she left in April 2012. He was teaching Maths to grades 10, 11, 12 students.

80. He and Mr Makhanya had a very good relationship and they discussed other options. Mr Makhanya did not object when he (Khan) confirmed that he is a Commerce teacher. The minutes of the meeting to declare excess educators appear on page 94 of Annexure B. Mr Gabela, SADTU chairperson was invited to the meeting. His role was to give guidance during the process, provide leadership and share experiences he has in the said processes as a union member. and to make certain the process was done in a fair and transparent manner.

81. As it reflects in the minutes on page 97 of Annexure A, Mr Makhanya was not paying attention in the meeting when he (Mr Makhanya) uttered words ‘’point of correction.’’ At the time he (Khan) had spoken about two things, one of which is that that the process needed to be done in terms of normal allocation and the Post Provisioning Norm (PPN) for the establishment.

82. There were no duties that were allocated to Mr Makhanya. After departmental heads had met with their educators and looked at the number of task units they had for the following year, they allocated educator names in terms of subject specialization and qualifications, and therefore the documents that were presented in that meeting by the departmental heads did not have Mr Makhanya’s name.

83. He finally got hold of Mr Makhanya’s qualifications in 2016 and established that his methodology was in Accounting and Business Management. Mr Makhanya had no methology in Maths, which justified Mr Makhanya’s negative attitude towards Maths. Mr Makhanya was not qualified in Mathematics at the second or third level, he had no methodology in Mathematics teaching. At the time he (Khan) was privy to the information, that when Mr Makhanya was sent to teach Mathematics in schools, he was not able to teach Maths, and he (Mr Makhanya) claimed that to HR department. HR was saying he was a Commerce educator.

84. With regards to the contents of the document on page 98 of Annexure B, he did not request but advised Mr Makhanya that the only way that he could be moved from Rossburgh was if he declared himself a surplus educator. That took place, first in August 2020 when Mr Makhanya came to him (Khan) and said that he wanted to be moved to another school, and also in October 2020 when Mr Makhanya came with SADTU delegation to his (Khan’s) office. His words were ‘’he appreciates being placed in another school’’.

85. The only way Mr Makhanya could move as he wanted to move, it had to be by advice, the SCM Sperintendent, Mr Timothy advised him to in turn advise Mr Makhanya.

86. Mr Makhanya’s movements from Maths to Commerce were not initiated by Rossburgh school but by him (Mr Makhanya). He (Khan) has no authority when it comes to educator transfers.

87. He disputed that he wanted Mr Makhanya to move out of the school.

88. He never declared Mr Makhanya a surplus educator. Mr Makhanya remained on Rossburgh school payroll until recently. He (Khan) have never written to the department to stop his salary. All he had done was to request from the department that the school be supplied with a replacement teacher whilst he was at home on suspension. The school needed a teacher in class, and therefore, administratively he (Khan) had to push for a replacement educator. The department was also not prepared to pay for two people in one post. It refused to pay.

89. There was no punishment as such that was meted out to Mr Makhanya but the school took him back and gave him a load in 2020 when the Department requested that he returns to the school. There was no punitive measure taken against him but in 2020 they embarked on a process to declare surplus educators to the establishment. Rossburgh High School had to follow that process. The process was conducted fairly and it gave rise to the declaration of three vacancies, and one educator being declared additional.

90. Due notices were issued to staff in terms of HR 61 of 2020 and the process required that they follow the procedure manual. Mr Makhanya was represented by the chairperson of his union branch. Also present were the shop stewards of NAPTOSA and SADTU. Mr Makhanya played an active role in the meeting. Reference was also made to the Collective Agreement No.1 of 2017. In order to show the level of openness, every level of staff was given the list of educators appearing on page 65 of Annexure B, as well as the payroll sheet reflecting the names of educators that are paid by the Department. Mr Makhanya’s name appears on the list which shows that he was still getting paid although he was not rendering a service to the school.

91. Rossburgh is not a school where its numbers of decrease, but there are extra classes, and in the meeting they openly laid bare the number of learners being taught in every subject. Therefore, all the stakeholders in the meeting would be fully aware of how the allocations would have been done, and every class that needed a teacher would have received a teacher. All permanent educators are given priority in so far as allocations are done. That shows there were no punitive measures taken in this case. Everything was done democratically and in an open and transparent manner.

92. Mr Makhanya did not belong to Commerce but to Maths department when he joined Rossburgh High School. He (Mr Khan) was aware of the meeting which took place between the Head of Commerce Department and Mr Makhanya, and also the minutes of the meeting appearing on page 88 of Annexure B. Mrs Thompson gave him (Khan) the minutes. What is recorded in the letter that Mr Makhanya taught Commerce subjects as a substitute for Mrs Ramlugam, and also that, Mr Makhanya stated that he was employed to teach Maths at Rossburgh High School when he joined the school. Two very important things that reflect in the same is that Mr Makhanya agreed that he was not the member of the Commerce department and there is no load for him in that department, thus he (Khan) agrees with Thompson’s statement that there was no load for Mr Makhanya in Commerce department.

93. When Mr Makhanya came to Rossburgh High School and requested to be moved to Commerce in 2012 his request was acceded to. One cannot move a teacher out of a class because the children may not be happy about the move. They had a problem when the main teacher of Maths expressed his desire to teach Accounting as Mr Makhanya was not a Maths person, basically he wanted to be in Commerce. They gave him Mrs Ramgulam’s timetable for grade 11 & 12 Accounting, Grade 10 Business Studies, grade 8 EMS and two grade 8 Mathematics, and therefore he has moved from Senior Maths to Senior Accounting.

94. HRM Circular No.61 0f 2020 details the procedure to identify excess educators to the establishment and also how to identify vacancies. Clause 4.4.1 page 36 of the same Collective Agreement states that permanent educators must be classified according to the main subject(s) that were taught in the previous year. Educators come with qualifications and verifying information, such as the qualification, degree, specialization subject of the educator becomes the first priority. In terms of this Circular they needed to know people’s qualifications because qualifications become paramount when it comes to declaration of vacancies and surplus educators to the establishment.

95. They requested all teachers to give them their qualifications, specialisations and the subjects they taught in the previous year. Mr Makhanya sent to them the educator profile form indicating that his specialization was Maths, Business Management and Accounting. It is a form that an educator who has been declared a surplus educator to the establishment has to fill in. Without that document, the department cannot continue with the process of matching teachers to vacancies. The school had three vacancies and Mr Makhanya refused to fill the form and sign it. That was crucial information that was needed to identify the subjects of his specialisation. Mr Makhanya did not tell him (Khan) which subjects and grade he taught in the previous year. He (Khan) never asked him to fill the same form previously because Rossburgh High School never embarked on that process before. Mr Makhanya was never a willing participant during the process.

96. Mr Makhanya’s qualifications had always been questionable in so far as his specialisation is concerned. Finally, he submitted the form which was completed and indicating Accounting and Business Studies as the areas of his specialisation, which confirmed to him (Khan) that most certainly he (Mr Makhanya) was not qualified in Mathematics. The form is an official document and Mr Makhanya cannot lie about the subjects.

97. The school could not accommodate Mr Makhanya because there were no vacancies.

98. There are discrepancies in Mr Makhanya’s CV, for example, Mr Makhanya never taught in Primary School yet in his CV it reflects that he taught in Kwesethu Primary School. The CV was submitted by him (Mr Makhanya) to him (Khan) and he in turn submitted it to the Department when Mr Makhanya wanted a transfer to Rossburgh High School in 2012.

99. There was clearly a problem with Mr Makhanya’s CV and he had not produced his qualifications. He said that they were stolen from his car and Rossburgh High School was waiting for his qualifications.

100. He (Khan) did not ask people to write letters and say they wanted Mr Makhanya to leave Rossburgh High School.

101. Mr Makhanya was collecting a salary and yet not teaching students. He was brought to Rossburgh High School in April 2012 where he taught for only 7 or 8 months. He qualified on 14 December 2009.

102. In 2019 when the Deputy Minister of Education came to visit Rossburgh High School to address staff on the issues of concern, one of which was that their Maths results were poor, he (the Deputy Minister) gave a directive to the Director of Education from Umlazi District that Mr Makhanya should be moved from Rossburgh High School because of his dismissal which occurred in 2012, and the school governing body (SGB) was aware that Mr Makhanya was not supposed to be there, and therefore, from the moment Mr Makhanya came to Rossburgh High School in 2020, the SGB wrote letters to the Department enquiring as to why the Department went against the agreement that was made, by bringing him back to the same school. He (Khan) did not ask the SGB to do that. He can get fired if he is instigating something like that.

103. In the meeting, nobody backed Mr Makhanya’s statement that he (Khan) asked numerous people to write letters about him, because he never did.

104. Mr Makhanya chose only one school when he was requested to choose 10 schools in the circuit.

105. With regards to the document on page 50 of Annexure C, the interest was to make certain that the SGB would not pay for a teacher again as it had been paying a replacement teacher for 7 years whilst Mr Makhanya was on suspension. He (Khan) would place Makhanya in any post, teach any subject if that was possible.

106. At the end they had to state that they could not fit Mr Makhanya in any of the three vacancies that were available at the time of the PPN exercise. He could not fit in simply because, when Mr Khumalo replaced him, there was always a problem with Mr Khumalo’s salary and he resigned from the post. That is when they decided ‘’the Senior Maths cannot happen because it is impossible for them to rely on the department to give them Maths teacher.’’

107. In the year 2014 alone, arrangements were made, and Rossburgh High School distributed the Maths class amongst other teachers. In 2016 it was prudent for them to re-engineer the curriculum, and they established that more students took Maths Literacy. It became easier for them then as they were able to get other teachers to teach Maths Literacy. There was no vacancy for Mr Makhanya as Maths educator in 2019 when he came back to the school and the school curriculum had changed then. The teachers were required to attend workshops and there was curriculum implementation, of which Mr Makhanya had never been part of. Maths post disappeared in 2014 because children were choosing Maths literacy. The school always needed educators. It is wrong to say the school declared Mr Makhanya surplus educator.

108. Mr Makhanya’s letters of transfer to various schools were possibly initiated possibly by the Department. There were many reasons for the issue of the said letters.

109. The Department does not change a person’s qualification and experience. He (Khan) wanted to put Mr Makhanya in class hence he was looking at whether he (Mr Makhanya) had life science experience.

110. Under cross examination, when it was put to him that it was a typographical error that it reflects in Mr Makhanya’s CV on page 120 of Annexure B that he has primary school experience instead of secondary school experience and therefore there is no act of dishonesty on his part, his response was that he was looking at the same CV to effect Mr Makhanya’s transfer.

111. Rossburgh High School followed the procedure which is stipulated in HRM 61 of 2020, read together with ELRC Collective Agreement no.1 of 2017 when they identified Mr Makhanya as a surplus educator.

112. He denied when it was put to him that identifying Mr Makhanya as a surplus was punitive measure to remove him from the school.

113. One of his roles as a Principal is definitely to ensure there is equitable distribution of work load amongst the educators.

114. He conceded that, the school is required to undertake the process of declaring surplus educators.

115. He said further that, previously, there was no need for Rossburgh High School to embark on the same process of identifying surplus educators to the establishment because the school is always in need of teachers, and even at the date of the arbitration. The pup today we need teachers.

116. He conceded that, Principals are required to ensure that the educators who have been identified as surplus are fully utilised in terms of clause 4.5 of the Collective Agreement 1 of 2017.

117. The PPN certificate indicates to the school the number of educators that the Department will supply, and also that the Department is prepared to fund them.

118. The PPN certificate appearing on page 64 of bundle B was issued in 2020. The educator list on page 65 shows the number of State paid educators including him (Khan) which is 33. In 2020 the number of State paid educators including him were 31. It is wrong to say that the school was short of 2 educators because 2020 was the year of Covid 19 Pandemic, and one educator passed away which resulted in 3 vacancies being declared. These were identified at FET level grades 11 & 12, being History, Dramatic Arts and Life Science subjects, but they also included Life Science with Natural Science to expand opportunities for teachers to come to the school. In fact, more educators were needed in the establishment.


119. When it was put to him that, despite being entitled to 33 educators in terms of the PPN certificate and having a shortage of 3 educators, he continued to identify Mr Makhanya as a surplus educator, his response was that it is not that simple, they also had to look at the interests of the learners, look at possibilities. He (Khan) did not go and choose a particular person to be declared a surplus educator. They were simply trying to match a person’s profile to the post available.

120. It is his (Khan’s) opinion that the FET and GET bands require subjects’ specialists.

121. He disputed when it was put to him (Khan) that he did not conduct the process correctly as the declaration of surplus educators did not apply to Rossburgh High School in terms of what was presented in the PPN certificate. The Collective Agreement states that the process must be conducted yearly. Schools are dynamic, they change curriculum. They had to get a profile of Mr Makhanya because it was continually changing, to do the matching exercise. It depends on subjects that are required at the school; they also declare in terms of what subjects were taught in the previous year.

122. He (Khan) was not prepared to have any class without a teacher, or a class being taught by a teacher who had no qualification when one with a qualification was available.

123. No school will be happy paying a salary for 7 years to someone who is on suspension.

124. He understands the word ‘entitled’ means one is obliged. He is declaring vacancies to the Department and the Department has the obligation to give them the educators. Not every person is teaching full load. They call the Department and ask for educators. They still prefer, at any given time, permanent educators but that does not stop them from employing SGB paid educators.

125. The school was entitled to 26 post level 1 educators and it needed 26 post level educators.

126. Mr Makhanya belongs to Mathematics and Commerce department. It reflects on the document on page 98 of Annexure B that Mr Makhanya is not denying that he is Maths teacher as well as Commerce teacher, and he (Khan) was in agreement with that. According to his (Khan’s) knowledge, that is the reason why Mr Makhanya could be in two departments, have one leg in one department and the other leg in the other department.

127. He received Mr Makhanya’s grievance on 15 December 2020 and submitted it to the Department.

128. When it was put to him that Mr Makhanya was never given a chance to have his grievance heard, his response was that he could not answer for the Department. He went on to say that he would not know why the Department did not entertain it. It is not stated categorically in the grievance procedure that he (Khan) must entertain the grievance. He wanted it finalized as it did not benefit the school or the children if it was not done.

129. It is stipulated in the HRM Policy 61 of 2020, that educator who has lodged a grievance must remain in his school until the grievance is finalized. He could not tell why that was not followed in Mr Makhanya’s case. It was outside his jurisdiction, once the educator lodges the grievance, he (Khan) presents it to his line manager. SCM with the documents of the process, he follows certain route with the department and wait for the outcome. No one came back to him regarding the outcome of the grievance.

130. When he was asked ‘’why he was prepared to lose Mr Makhanya when there are a shortage of two educators in Rossburgh High School, his response was that it was because Mr Makhanya because did not satisfy curriculum needs which were in four subjects.

131. Mr Mahanya came to replace Mrs Sewpersadh who was senior Maths teacher when he joined the school. Mr Makhanya taught Commerce subjects as a substitute when the Commerce teacher went on maternity leave. Maternity leave lasts for 4 months depending on the circumstances.

132. He disputed that Mr Makhanya would have taught Commerce for 4 months only since the words ‘’substitute’’ reflect in the minutes of the meeting between Mrs Thompson and Mr Makhanya. He went on and said that Mr Makhanya went to Commerce department and taught Commerce because he could not teach Mathematics; the words used do not convey the truth because the word ‘’substitute is defined as a teacher who is sent by the department to replace a teacher who is on leave, and replacement teachers are employed on a temporal basis until the educator comes back. Mr Makhanya was teaching the load because he came to them and said that he could not handle Senior Mathematics, and he is the Commerce teacher. The school always had more Commerce teachers than they needed.

133. Mr Makhanya was a permanent teacher at Rossburgh High School and not a substitute.

134. He totally agrees that Mr Makhanya came to teach in the Maths post, he is the Senior Maths educator, however, Mr Makhanya is the one who claimed he is the Commerce educator.

135. With regards to the application of LIFO principle in terms of clause 4.4.4 of HRM 61 0f 2020, it would have been Mrs D Ramgulam who is a teacher that went on maternity leave, Mrs K Ramburan and Mrs Ndlovu who would compete for a Commerce post.

136. No one was competing in Rossburgh High School for a vacant post in Commerce when the meeting to declare surplus educator was held in December 2020.

137. Had Mr Makhaya submitted a declaration, he would have checked where to fit him because there were vacancies at the school. They were looking for a place to fit him.

138. He disputed when it was put to him (Khan) that Mr Makhanya was never an a surplus educator, but he (Khan) used Commerce department as an excuse to declare him as such at Rossburgh High School. He went on said that, the school cannot function without teachers, and that is why they were doing what they could, embarking on the process to declare surplus educators. The school curriculum had long changed when Mr Makhanya came back to the school after his suspension was lifted.

139. Mr Makhanya had not taught in the previous year i.e. 2019 but they still gave him the right to lay claim to any vacancy at the school. He was teaching Commerce and junior Mathematics in 2019. He mentioned in the meeting that the SGB was then paying someone else to teach Maths. He (Khan) could not tell the reason behind the SGB’s conduct in circumstances where Mr Makhanya was available to teach Maths.

140. When he (Khan) was asked to describe the academic performance of the learners in Rossburgh High School and, also state if there were any detrimental results with Mr Makhanya teaching Maths at the school, his response was that Mr Makhanya did not finish, as he was moved from Senior Maths to replace Commerce teacher who went on leave; he could not state that his results were not good; Mr Makhanya was at the school for 7 months.

141. When he was asked for evidence to show that Mr Makhanya requested to be moved from Maths department, his response was that he could bring Maths HOD to corroborate his version.

142. He (Khan) declared Mr Makhanya a surplus educator in Commerce, of which Commerce was not his learning area, out of their desperation as the SGB was still paying him his salary. He was declared in excess in a subject of his specialization that was given to them.

143. He (Khan) denied when it was put to him that in his position as the Principal of Rossburgh High School, he used processes from Procedure Manual HRM 61 of 2020 to unfairly declare Mr Makhanya as additional to his staff establishment. He said that Mr Makhanya was brought to his school by the Department and must be given gainfully employed.

144. On re-examination, he said that Mr Makhanya was not in Rossburgh High School in 2019. He was last there in 2013. The Department did not invite him to Mr Makhanya’s grievance hearing.

145. There were no classes without teachers at the time when he conducted the PPN exercise. The PPN certificate came from the Department of Education office.

146. Gugulethu Glenrose Hadebe testified as the Respondent’s second witness. She informed us that she occupies a position of Deputy Director: Human Resource Support Services.

147. She said that: the Department issues transfer letters, such as those appearing on pages 10 – 23 of Annexure B, in the event the educator is no longer meeting the operational requirements of the school. These were issued to Mr Makhanya because he was he was rendering duties at Rossburg High School before his suspension, and when his suspension was uplifted, the Department had to place him in another school so that he could render his services as the educator. He was not at Rossburgh High School when his case was still pending.

148. Subsequent to Mr Makhanya’s placement at Apollo school, he informed the Department that the school is not suitable for him, and the Department saw that he would not be gainfully employed, and it made alternative arrangements for him to render services at Phambili school. Phambili school had indicated that they needed an educator.

149. Mr Makhanya stated that there were more challenges at Phambili and the Department placed him at Wingen Heights high school. Nothing materialized at Wingen Heights and they finally placed him at Chesterville Secondary School. At the time of placement at Chesterville, he indicated that he was happy with the placement because he was staying in the area.

150. There was no need to do PPN exercise at the time when the Department was placing Mr Makhanya at various schools. It was the responsibility of HR to place him where he could be gainfully employed. Her recollection is that the Principal of Rossburgh High School had already indicated that he did not need an educator whose learning area is Maths and the school could not accommodate Mr Makhanya.

151. Under cross examination she said that: she does not attend school staff meetings where surplus educators are identified.

152. She had no knowledge why Rossburgh High School identified Mr Makhanya as a surplus educator.

153. She was not aware that Mr Makhanya had lodged a grievance after he was identified as a surplus educator at Rossburgh High School.

154. Mr Makhanya’s grievance would have been submitted to Employee Relations Department and she would not have been part of the grievance hearing.

155. Mr Makhanya was appointed to teach Maths and the Department was advised at some point that he was also teaching Accounting. His learning areas would therefore be Maths and Accounting.

156. She was not aware whether Rossburgh school had correctly conducted the process of declaring surplus educators, as laid out in HRM 61 of 2020.

157. She is familiar with the LIFO principle, and its application. In the process of declaring a surplus educator, it will be applied when there is more than one person competing for the same post, i.e. educators offering same subject in the same phase or grade. The process involves checking who came first and who came last, and one who came last would be the first out.

158. LIFO principle should not be applied where there is no other educator one is competing with.

159. She is not familiar with the document described as the payroll sheet, appearing on pages 66, 67 & 68 of Annexure B.

160. It is generally possible for the school to be identifying surplus educators in the establishment if they have 24 post level 1 educators but required number is 26. This depends on the curriculum needs of the school. She did not know the needs of Rossburgh High School when the process of identifying surplus educators was conducted.

161. Mr Makhanya was Maths and Accounting educator and therefore she did not know if he could be declared surplus at Rossburgh High School at the time when the process of identifying surplus educators was conducted.

162. When questioned by myself, he said that, after Mr Makhanya’s suspension was uplifted, on separate occasions, Mr Khan indicated that the relations were not good between him (Khan) and Mr Makhanya, and also between Mr Makhanya Rossburgh High School, and that is the reason why Mr Makhanya had to be placed in a different environment.

163. In a case of incompatibility, the Department uses the same procedure to declare educators who are deemed to be surplus. It looks for other schools with vacancies that cater for the subjects they are offering, and place them in those vacancies.

164. The Respondent argued that it complied with HRM No.61 of 2020 in declaring the Applicant surplus educator.


ANALYSIS OF THE EVIDENCE AND ARGUMENT


165. I have examined the evidence submitted by both parties and have duly perused submitted Annexures. I am required to determine whether the Respondent correctly interpreted and applied Council Collective Agreement No.4 of 2016, Collective Agreement No.1 of 2017 and Circular No.61 of 2020 when it declared the Applicant a surplus educator to the establishment, namely, Rossburgh High School.

166. The Applicant’s contention is that there was no need to declare him a surplus educator to the establishment since Rossburgh High School 2020 PPN certificate indicates that two teachers were needed at the school at the time when the meeting to declare surplus educators was held, and also he was employed as a Maths teacher in the same school, and was competing with no other educator for the Maths post during the 2020 PPN exercise. The Respondent’s evidence was that in fact there were three vacancies at the time at Rossburgh High School.

167. It was clear from the evidence that the process was embarked upon, to a great extent, to address the Applicant’s suitability to teach at Rossburgh High School on other grounds than to declare surplus educators to the same establishment at the time. This came up strongly during the cross examination of the Respondent’s witness, Mr Khan. It was further supported by the testimony of the Respondent’s second witness, Mrs Hadebe who said that: The Applicant was Maths and Accounting educator, and therefore she did not know if he could be declared a surplus educator at Rossburgh High School; on separate occasions, after the Applicant’s suspension was uplifted, the Principal Mr Khan indicated to the Department that the relations were not good between him and the Applicant, and also between the Applicant and the school. The witness further said such was the reason why the Applicant had to be placed in a different environment. There was no satisfactory evidence presented to show the said bad relations or the extent thereof.

168. As alluded to above, Mr Makhanya was employed as a Maths teacher and he was not competing with any other educator to teach Maths in Rossburgh High School. He was the Maths teacher in terms of the school records. The Respondent’s second witness said further that the Department was advised at some point that Mr Makhanya was also teaching Accounting in the same school, and therefore his learning areas would be Maths and Accounting.

169. There are, therefore, no satisfying reasons which were given at arbitration as to why the Applicant was identified and declared a surplus educator in Rossburgh High School at the time of the PPN exercise.

170. Whilst it is true that the school is required to conduct the PPN exercise in terms of the HRM Policy, the Applicant contended that the exercise was a punitive measure to remove him from Rossburgh High School. In determining whether there is substance in the Applicant’s claim, I have looked, holistically, at the conduct of the Respondent, prior to the conduct of the PPN exercise and the process to declare surplus educators to the establishment in December 2020, also the conduct during the process, as well as after the process.

171. It was the evidence that Rossburgh High School had not conducted the PPN exercise for several years since the Principal, Mr Khan joined the school, and despite him knowing it was a requirement for every school. Mr Khan justified the non-compliance by saying that the school had always needed more educators, their numbers did not dwindle. This piece of the evidence does not hold, given that, even at the time the PPN exercise was conducted, the school was in need of three educators according to documentary evidence produced at arbitration.

172. It was also the evidence that, on two occasions, the Principal Mr Khan told the Applicant to declare himself surplus educator to the establishment, which is not the correct procedure.

173. Mr Khan testified that: in 2019 the Deputy Minister came to Rossburgh High School and directed that the Applicant be moved from the school because of his dismissal; the directive was issued to the Director for Educators: Umlazi district. He also said that, by the time the Applicant came back to the school in 2020, the SGB wrote letters to the Department enquiring why they went against ‘’the agreement’’ by bringing the Applicant back to Rossburgh High School. This piece of the evidence tends to suggest that the letters of transfer that were issued to the Applicant were prompted by SGB letters to the Department in this regard. It also does not make sense that the Department was issuing letters of transfer to someone whose case was not yet finalised and was on suspension. The first letter of transfer was issued on 12 April 2019, the second letter was issued on 15 July 2019, and yet the school was only notified of the upliftment of Mr Makhanya’s suspension on 20 August 2019. The Applicant gave satisfying evidence that he was prevented from coming to any school without authorisation during the time of his suspension but the Department was busy issuing letters of transfer to him.

174. It was the Respondent’s evidence that, in 2016, Mr Khan had finally obtained the Applicant’s qualifications, and he established that his methodology was in Accounting and Business Studies, and he had no methodology in Maths. The Respondent did not produce satisfactory evidence to this effect.

175. The Respondent’s second witness said that the issue of bad relations between the Applicant and the Principal of Rossburgh High School was one of the reasons why Rossburgh High School declared the Applicant a surplus educator to the establishment. The evidence is persuasive that such was the reason behind the process that was undertaken to declare surplus educators to the establishment in December 2020, especially because the evidence was that the Principal of Rossburgh High School embarked on this process when he had less post level 1 educators and the school actually required more level 1 educators. These reasons pertaining to relations between the Applicant and the Principal, and between the Applicant and Rossburgh High School are not stated in the minutes of the meeting where the Applicant was declared a surplus educator, yet it seems this piece of the evidence played a huge role in identifying the Applicant as the surplus educator to the establishment, and the question I ask myself is ‘’Why is it so?’’ Fairness also dictates transparency of the process given the circumstances, and yet such crucial information was not communicated to the Applicant, and more so as the true reason for the process that was conducted.

176. There is no record of the investigation having been conducted to establish the truthfulness of the said allegations of bad relations. There is no evidence of instructions being given to Mr Khan by the Department to conduct the process of declaring the Applicant a surplus educator on the grounds of incompatibility.

177. Also, in circumstances where Mr Khan decided to conduct the process of declaring surplus educators to the establishment, one would have expected him to: inform the chairperson and all the people who attended the meeting about the allegations of bad relations; ensure he (Mr Khan) does not also play a role of a chairperson during the process, which evidence is clear from reading the minutes of the meeting. This is especially so because the allegations of bad relations also involved him (Khan).

178. Practising fairness in this case would mean it being made clear who the decision maker was at the meeting, invite input from the Applicant regarding the said allegations. The evidence points to that such did not take place, but Mr Khan was very active in the meeting, also playing a role of a chairperson in the manner he conducted himself during the process. No mention was made of such allegations in the minutes yet it was important to establish the truthfulness of the said allegations. It would not make sense to first declare an educator a surplus to the establishment, and investigate the truthfulness of the allegations later. Also it is an important legal principle to respect the right of an employee to be heard, and clearly in this case, the Principal concluded about the Applicant’s suitability for Maths post, way back in 2016 when the Applicant was sitting at home and on suspension, according to his (Khan’s) evidence. It does not indicate fairness at all that the Applicant was not informed about such allegations and also not given an opportunity to respond to them.

179. Furthermore, the evidence was led that the Department sent letters to both the Applicant and the schools where he was placed. The letters informed that the Applicant was already declared a surplus educator, and this was before the Principal of Rossburgh High School embarked on the process to declare surplus educators to the establishment. This also does not make sense, and one can conclude, based on the evidence, that it does suggest that a position had already been taken regarding the Applicant remaining the educator at Rossburgh High School. For example, reference is made to the contents of the transfer letter which was sent to the Principal of Rossburgh High School dated 12 April 2019, yet the process to declare surplus educators was only conducted in December 2020. The Principal is being informed in the same letter that the Applicant was declared a surplus educator to his school on the basis of HRM Circular No.51 of 2016, and he had been placed at Apollo Secondary School. I will reiterate that the date of the letter is 12 April 2019.

180. I am not persuaded therefore, based on the evidence, that the process of determining if the Applicant was a surplus educator should have been conducted in the first place in this case. As alluded to above, more post level 1 educators were actually needed at Rossburgh High School, and the Applicant was not competing with any other educator for Maths post. Both parties confirmed that the Applicant was placed permanently as Maths educator at Rossburgh High School. There was no satisfactory evidence to show that Mr Makhanya could not remain and perform duties of a Maths teacher.

181. In his evidence, Mr Khan seemed to cast doubt on the Applicant’s qualification and suitability to teach Maths. The question I ask myself is ‘’whether the issue concerning whether the educator was truthful about his qualifications stated in his CV, is a matter for determination by the Principal and not HR. It does not make sense to me also that the Principal would decide to invoke the procedure to declare an educator surplus to the establishment, in order to deal with that matter (the truthfulness of possessing qualifications or not). At the least one would expect the Principal to allow a process whereby the matter is investigated with the involvement of HR and the outcome issued even prior embarking on the process to declare surplus educators to the establishment.

182. There was no evidence that was presented to support the Respondent’s claim that there were curriculum changes during the period when the Applicant was on suspension, and these necessitated that the process to declare surplus educators to the establishment be conducted. In fact, sufficient evidence was presented that the Rossburgh High School needed more educators and Mr Makhanya was competing with no one in the Maths post. There is therefore no satisfactory evidence to support invoking the procedure

183. Even if it could be found that the true position is that the Applicant was a Commerce teacher, in the absence of satisfactory evidence that the investigation was conducted and he was found to be without Maths qualification and / or could not teach Maths, my view is that nothing stopped Rossburgh High School from transferring the Applicant to Maths Department which is the post he was placed at in the first place when he joined the school. That step would have been taken in line with section 6 and / or 8 of the Employment of Educators Act 1998. Reference is made to clause B.6.5.1 of the Collective Agreement 4 of 2016 in this regard. The clause reads ‘’

‘’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 his / her skills and experience.’’.

As alluded to above, nothing was provided to support the Respondent’s evidence that there were curriculum changes in Maths and Mr Makhanya could not any longer teach Maths subject because of those changes and / or Mr Makhanya could not receive due training to adapt, i.e. upskill / reskill him to meet the demands, be ready perform the function of teaching Maths at acceptable standards and / or that could not be achieved.

184. Clause 4.1.1 of HRM 61 of 2020 provides ‘’The processes of declaration of vacancies and educators additional to the educator post establishment must be undertaken in a fair, transparent and objective manner and should not be used as a punitive measure against educators. Based on the evidence, I am persuaded to conclude that the process was not fair to the Applicant, and neither was it transparent.

185. The evidence is also overwhelming that the process to declare surplus educators to the establishment was prompted by the Applicant having returned to his school (Rossburgh High School) after his dismissal was overturned. The Respondent’s second witness mentioned this as one of the reasons to declare him a surplus educator to the establishment.

186. When the school Principal was asked during cross examination, for the reason he embarked on this process when he had not conducted a similar process in the past years he (Mr Khan) had been in Rossburgh High School, his response was that, he embarked on the process because he is required to conduct the same process every year. I am persuaded to conclude that it does look suspicious and somehow convenient, that a school Principal would not conduct the same process for years, from when Mr Makhanya joined Rossburgh High School in 2012 to December 2020, thus in breach of the same Policy, and only commence to conduct the same, after he had first tried to convince an educator to voluntarily declare himself a surplus educator. It was the evidence that the Principal Mr Khan had asked the Applicant to voluntarily declare himself a surplus educator to the establishment, and that is not according to the laid down procedure.

187. Furthermore, in terms of the same Policy, namely, HRM Circular 61 of 2020, ’in the event an educator declared additional lodges a grievance, the said educator must remain at her or his current school until the grievance is finalised.’’ It was the evidence that the Applicant lodged the grievance, and instead of keeping the Applicant at Rossburgh High School in terms of this Policy, the Department transferred him to Chesterville Secondary School. The question I ask myself, is why the Principal and the Department did not comply with the same Policy in this regard, if indeed the true intention was to abide by the same Policy, which the Principal had not followed in the previous years.

188. The evidence points to that the conduct is exceptional and is intended to be punitive and indicative of extreme way to deal with an educator. Considering all the above as the Applicant had contended.

189. Also, there seems to be a high probability that the fact that the Applicant was on suspension for years, and being paid by Rossburgh High School, triggered Rossburgh High School to conduct the same process. As alluded to above, the Principal Mr Khan even asked the Applicant to voluntarily declare himself a surplus educator to the establishment, which was not procedural. There is no satisfactory evidence that the Department was objective in its actions.

190. Considering all the above, I am led to conclude that the process of declaring the Applicant a surplus educator to the establishment, namely, Rossburgh High School, was used as a punitive measure against him.

191. In the circumstances of this case and on the balance of probabilities I therefore find that the Respondent failed to interpret correctly and apply the Council Collective Agreement 4 of 2016, Collective Agreement 1 of 2017, and HRM 61 of 2020; it acted irrational in its actions.

6. AWARD

192. The Respondent, Department of Education: KZN failed to interpret and apply the Collective Agreement 4 of 2016, the Collective Agreement 1 of 2017 and HRM Circular 61 of 2020 when it declared the Applicant, Mr Makhanya, a surplus educator to the establishment, namely, Rossburgh High School, and also by using the same process as a punitive matter against him;

193. The decision of the Respondent transferring Mr Makhanya from Rossburgh High School to Chesterville Secondary School is set aside.

194. The Respondent is ordered to start afresh the process of declaring surplus educators to the same establishment, Rossburgh High School within 21 days of receiving this award.

NONHLANHLA DUBAZANE
ELRC SENIOR COMMISSIONER