ELRC416-23/24LP

Commissioner: Grace Mafa-Chali
Case No.: ELRC416-23/24LP
Date of Award: 1 April 2024


In the arbitration between:


RACHEL SITHOLE APPLICANT

AND


DEPARTMENT OF EDUCATION- LIMPOPO PROVINCE RESPONDENT


THE DETAILS OF THE HEARING AND REPRESENTATION

1. The arbitration hearings were held on 07 November 2023, 22 January 2024 and finalized on 07 Mach 2024 at the Head Office of the Department of Education, Limpopo Province, Corner Hospital and Hans van Rensberg Streets, Polokwane.
2. The Applicant was in attendance and represented by an attorney, Ms Rita van Staden, of Stemmett and Osman Attorneys. The Respondent was represented by Labour Relations Officer, Ms Portia Modipa.
3. At the conclusion of the last arbitration process, both parties requested to submit written closing arguments and were directed to do so by 14 March 2024. Both parties obliged and I have considered their closing arguments in my findings hereunder.

ISSUES TO BE DECIDED
4. I must decide whether or not the Respondent committed an unfair practice against the Applicant in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995 as amended (LRA) relating to demotion. If so, whether the demotion was fair or not.
5. If so, I must determine the appropriate relief.

BACKGROUND TO THE DISPUTE
6. The Applicant is employed as a Principal and Educator at Mochedi Secondary School since January 2022. She alleged that the Respondent demoted her by moving her to another school, Bosakgo Secondary School and her position and duties were taken by Mr Mogotle,
7. She further alleged that the Respondent did not consult with her before her demotion and therefore committed unfair labour practice.
8. The Respondent denied the Applicant’s submission that she was demoted as she was still the Principal of Mochedi Secondary School to date.
9. Applicant submitted a bundle of documents marked A1 and A2. The Respondent submitted a bundle of documents marked R.

SURVEY OF PARTIES’ EVIDENCE AND ARGUMENTS


Applicant’s Evidence
Rachel Sithole testified under oath as follows:

10. She was employed by the Respondent in 1989 as an Educator and on 10 January 2022 as the Principal at Mochedi Secondary School. On 08 August 2023, the Circuit Manager, Ms Thlako, the District Manager, Mr Mothemane, SADTU Branch Secretary, Mr Mpati and SADTU Branch Chairperson came to her school as it appears on Page 1 of bundle “A2”. She was informed that she must go to work at Bosakgo Secondary School and to be transferred as an Educator and further that the Principal of Kwinana Secondary School, Mr Mogotle would take over her school as the Principal.

11. She was told that the reason for her transfer and demotion was that the performance at the school was not as expected although the results of the school improved since she joined the school. The target of performance set by the Department is 65%. As on Page 83 of Bundle A1, the performance of the school was 52% in 2022, in 2021 it was 38.5% and in 2020 it was 33.3%. The pass rate of the school increased from 33% in 2020 to 52% in 2022. That was an improvement of 14.3% in performance when she was the Principal.

12. She was not subjected to a disciplinary hearing or poor performance hearing. She only received a letter from the Department that the school was under performing in three (3) consecutive years.

13. After she was told to report at Bosakgo Secondary School, the School Management Team (SMT) was called and informed that she was transferred to Bosakgo Secondary School as an Educator and Mr Mogotle, the Principal of Kwinana Secondary School was to take over as the Principal in her position. The Circuit Manager was instructed by the District Manager, Mr Mothemane to call the SGB to inform them of her transfer and also to inform other stakeholders including parents, teachers and learners.

14. Another meeting was held on 10 August 2023 with the Circuit Manager and SGB members. Only two (2) members of the School Governing Body (SGB) came to the meeting. She found some SGB members who told her that there was an SGB meeting and she could join them. She told them that she was not invited. The Circuit Manager said to her as she was told to go to Bosakgo Secondary School but she was still there, she must attend the SGB meeting.

15. She left and when she came back, the SGB meeting was almost over and it was said that it was for the benefit of the learners for her to move to another school. It was concluded that teachers be called to inform them that she was no longer the Principal of the school but was transferred to Bosakgo Secondary School.

16. The teachers were called in and the Circuit Manager announced her transfer to them and that they must not be surprised that she was no longer the Principal of Mochedi Secondary School from 01 August 2023. The Circuit Manager and District Director came with a new Principal, Mr Mogotle from Kwinana Secondary School. The Circuit Manager advised that learners and parents would also be informed about the changes.

17. Mr Mogotle was picked up with a departmental car as he was at stucked with his car at Longsdale Village. When he arrived at the school, the Circuit Manager instructed the Department Head to welcome Mr Mogotle and indicated that he came to teach Grade 12 learners Physical Science. Learners from Makgetha Secondary School had already arrived and Mr Mabitsela prepared a hall where learners would be taught. The secretary of the school took minutes when the new Principal was introduced as on Page 1 of Bundle A2. All the people who attended the meeting signed the attendance register.

18. The new Principal came to the school and took over her functions but on 11 August 2023 she attended a meeting and represented Mochedi as the Principal at Noorderland High School. She did not get a transfer letter. The following week from 14 August 2023 until 18 August 2023, she was on sick leave. She felt sick and humiliated. She was sick. She emailed the medical certificate to both the Circuit Manager and District Director to make them aware of her illness. She came back on 21 August 2023 and attended a meeting at Harry Oppenheimer which was a district training for Principals and they were taught how to run examinations. She attended with the Departmental Head, Mr Mabitsela and also found the new Principal. Mr Mogotle. There were two (2) Principals of Mochedi instead of one (1) Principal.

19. Reference was made to Page 100 of Bundle A1 which is her medical certificate from 14 August to 18 August 2023. On 22 August 2023, when she arrived at school, she got information that it was the day of grant awards and the Departmental Head required her to look for transport for 77 Grade 12 learners to attend the ward ceremony. She arranged the transport and gave her leave form and medical certificate to Mr Radipitsi to give to the Circuit officials. She also attended the awards. Mr Papole took her documents to the Circuit Manager who refused to take them. The Circuit Manager told her that she must fill in the temporary incapacity leave as her normal sick leave days were depleted. The leave forms are on Pages 101 to 109 of Bundle A1.

20. She consulted HR in the district, in the leave section to check whether her sick leave days were depleted and to also get advice on incapacity leave procedure. They gave her the documents on Page 91 and 92 of Bundle A1 and told her that she has 14 sick leave days.

21. Before going to the district office and head office, she went to labour relations unit about her rejected leave forms by the Circuit Maager. She was again on sick leave and she submitted the leave forms to the Circuit Manager but she again refused to take them. Her salary was deducted with R7 000.00 or R8 000.00.

22. Page 2 of A2 is a record/minutes of the meeting that took place at Mochedi Secondary School under Principal Mogotle. He directed the secretary to issue an invite for the meeting with an agenda. It is the functions of the Principal to arrange meetings at the school. Page 5 of Bundle A2 is the SMT meeting called by Principal Mogotle. The minutes on Page 6 of Bundle A2 reflected what was discussed. Learners did not get reports because schedules were not submitted when she was on sick leave. On 17 October 2023, Mr Mogotle chaired the SMT meeting.

23. Page 12 of Bundle A2, showed that the Principal is regarded as a Chief Invigilator of the examinations but the Principal can appoint someone as an invigilator. She did not appoint Mr Mogotle as an invigilator to stand in for her. Page 13 of Bundle A2 was read into record and it said Principal Mogotle opened the meeting and he took over her responsibilities she normally did as the Principal. Mr Mogotle was introduced to staff, teachers, leaners and parents as the Principal by the Circuit Manager and she was pushed out as the Principal. Mr Rangongo was transferred to the Kwinana Secondary School where Mr Mogotle was the Principal, to be a caretaker because the school was merged with another one.

24. She was humiliated and wanted an outcome that will bring back her reputation. The teachers and learners did not take her serious. She was depressed hence she took so many sick leaves. She would like to be transferred to head office as it was difficult to work under the same Circuit Manager and the same District Director or alternatively to be transferred to another district, or to be compensated as her salary was not affected except the times she was sick even though she submitted leave forms refused by the Circuit Manager.

The Applicant closed her case.

Respondent ’s Evidence
Sarah Moyahabo Tlhako testified under oath as follows:
25. She is the Circuit Manager of Moloto Circuit and the Applicant was reporting directly to her. Her role is to support Principals to enable them to do their duties, to engage stakeholders and to assist each other to support the schools.

26. The Applicant was never demoted but she was unable to do her duties. Even thought they supported her, the Applicant did not want to do her work. They had a lot of charges against her and decided to call SADTU as she is their member. They spoke to SADTU about the Applicant’s underperformance.

27. As a way to assist her, SADTU asked that they be given an opportunity to mentor the Applicant. They agreed and also stated that it would be on a temporary basis to remove the Applicant from her school as an intervention and not forcing her and be transferred to Bosakgo until the end of the year. The secretary of the union was to mentor her.

28. The agreement was made between her, the District Director, Mr Mothemane, the Branch Chairperson of SADTU, Mr Ledwaba, the Branch Secretary of SADTU, Mr Mpati as well as the Applicant. It was explained to the Applicant that SADTU proposed her move to another school in order to support her and she responded to them “Di a kwagala”, in Sepedi meaning “It is understandable”. They took that from her response, the Applicant was in agreement to move to Bosakgo Secondary School from Mochedi Secondary School. A day thereafter, the Applicant did not go to school and wet to Principals’ meeting of GEC as Mochedi Secondary School Principal. The following week, the Applicant did not go to work.

29. As the Applicant agreed to move to Bosakgo Secondary School, they then started to consult stakeholders, being teachers, representative council of learners (RCL) and SGB to inform them about what was agreed with the Applicant. At that time, the Applicant did not come to the meeting of educators and when they engaged the SGB, there was a time she came to take minutes even though she said she was not invited. She did not sign the attendance register. She left after taking the minutes.

30. They spoke to the Principal of Kwinana Secondary School, Mr Mogotle to come and teach Physical Science at Mochedi secondary School as the Applicant did not teach that subject even though she was supposed to teach it. It was instead taught by a teacher who came in September 2022 and was also teaching Mathematics to 56 Grade 12 learners. The Principal of Kwinana Secondary School did not have the subject of Physical Science at his school anymore. They brought him in order to assist with teaching for the progress of the school.

31. As they observed through her actions that the Applicant did not want to go to Bosakgo Secondary School, the District Director came and indicated that the Applicant must then stay and continue as the Principal and Mr Mogotle still to come in as an intervention to manage Science and Mathematics curriculum as it was suffering. The minutes of the staff meeting also mentioned that. The Applicant was still the Principal and Mr Mogotle just came to teach Physical Science and Mathematics.

32. The Applicant came to school but she did not do her duties. She came to school and sat in her car under the shades. When tired, she knocked off and left the school. The Applicant reported and knocked off at her own time. There was no written document to show that the Applicant was demoted and was no longer the Principal of Mochedi Secondary School. The Applicant even went to attend the meeting of Principals on examination with one of the SMT members. The Applicant also told the Assistant Teachers that they were not going to get their money as they did not work in the month of September 2023. This she said in her capacity as the Principal of Mochedi. Secondary school. The Applicant even took Assistants Teachers forms to Treasury and told them that the forms will be processed for their salaries to be paid. She however left the forms at Treasury and did not come to school for several days.

33. The Applicant knew that she was still the Principal and was signing the attendance registers on number 1 for Principal. The applicant was never confused about her position as the Principal when she signed documents. Reference was made to Page 9 of Bundle C, which is the confirmation letter of recovery feeding scheme money signed by the Applicant as Principal on 19 October 2023. The Applicant also signed the attendance registers on Pages 10 -12 of Bundle C.

34. Pages 13 to 20 of Bundle C show that the Applicant was absent from work. The Applicant sent an apology on 24 October 2023 but the others days she did not sent an apology. Later on, the Applicant sent an email that she was sick until 27 or 28 October 2023. Since then, the Applicant never told her of her whereabouts until learners wrote examinations and finished. She sent the Applicant an email that she no longer had sick leave days as she had depleted her 36 days’ cycle and was to complete incapacity leave not the normal leave forms. The Applicant never responded to her emails.

35. Reference was made to Page 8 of Bundle C which is the appointment of chief invigilator for Grade 12 examinations and it is the Principal. She took the letter to the school and recorded it in the journal that it was submitted. The first letter was given to Mr Mpati for all four (4) schools in the cluster including the Applicant’s school. Mr Mpati gave to others but did not find the Applicant, left the letter at school and also wrote in the journal that the letter was delivered. She went to school to deliver the letter again. She found that the first letter was still there and the Applicant never took it. She also recorded in the journal at school on her visit and delivery of the letter.

36. During examinations, Mr Mogotle as the Deputy Chief Invigilator, invigilated examinations as the Applicant was not at school and things could not stop in her absence. She did not know the whereabouts of the Applicant as she was not reporting at school. She did not get any communication from the Applicant to report why she was not reporting at school.

37. She then wrote a report to the district office to inform them that the Applicant was still not coming at school. When the Applicant was still at school and she went to school to talk to her, the Applicant kept quiet. She would go call a witness to confirm that they talked but the Applicant was quite, but on her return to office she would find that the Applicant had lef.t the office The Applicant was not responding to her emails nor responding to her on WhatsApp group for Principals. The Applicant’s behavior is unacceptable as she failed to report to her about her whereabouts as her supervisor. Since she submitted her last medical certificate, she stopped to report for work until to date.

38. On 15 January 2024, when schools reopened, she asked the Principals if all schools reported. Mr Mogotle and Mr Mabitsela told her that the Applicant was not at school. The applicant has since left work in October 2023 and she is unable to communicate with her. She was also not answering her calls.

39. Page 1 of Bundle C is the monitoring support document. All the subject advisors were at the Applicant’s school for monitoring and confirming that all work is done well. Page 4 of Bundle C shows that marks were not captured and there were no schedules. The Applicant was the tone who answered yes or no on the questions asked on the document and was asked to support it with evidence. After the meeting, they told the Principal to complete the schedules and to submit them.

40. The subject advisors indicated that the Applicant was not able to do her job as she answered many questions with a no, hence they sought an intervention with the union in order to support her but she was not willing. She failed to assist the Applicant because she did not accept her assistance. The Applicant did not follow an instruction to send weekly work done by teachers in teaching the learners. She went to school to evaluate the Applicant for performance management system, but the Applicant was not at the school. She had sent a calendar with dates of Principal evaluations in July 2023, but the Applicant still came very late on that day although knew she was leaving to another school later. She could not do October and November 2023 performance evaluations as she did not know of the Applicant’s whereabouts. In 2022, she invited Mochedi Secondary School more often than the other schools in order to support the Applicant but it was very difficult.

Johannes Kwena Mogotle testified under oath as follows:
41. He is the Principal of Kwinana Secondary School. Reference was made to Page 2 of Bundle A2 which is the minutes of the SMT meeting held at Mochedi Secondary School. He was running the meeting because he was asked to do so. He went to teach at Mochedi Secondary School the subject of Physical Science due to his medical condition that did not allow him to drive long distance to his school. When he took her medical reports to the Circuit Manager, she indicated that the nearest school to him was Mochedi Secondary School. There was a challenge that learners were not taught Physical Science and he went to that school take care of the curriculum.

42. He is addressed on Page 2, points 1 and 2 of Bundle A, as Principal Mogotle, as where he was working, he was the Principal. It is mentioned Mam Sithole was welcomed because she did not attend SMT meetings for long and the minutes also state that Mam Sithole is the Principal of Mochedi Secondary School.
43. When he arrived at Mochedi Secondary School on 14 August 2023, he met with the District Director and it was explained to him that he was going to assist the Applicant with the curriculum and the Applicant will remain in her position as the Principal.

44. He approached the Applicant and Mr Mabitsela and offered to work well together with them in teaching Physical Science for Grade 12. He also told the Applicant that as the Principal of Mochedi Secondary School, she was his boss and she must tell him what to do and he would comply. He did not take the Applicant’s responsibilities as the Principal. The Applicant did not have a problem with him assisting.

45. The attendance register on Page 10 of Bundle C shows that the Applicant signed as Principal on no 1 and he then he signed on no 2. The Principal of the school always signs the attendance registers as no 1 in terms of procedures. The same on Pages 9, 11 and 12 of Bundle C. He was never given a letter to confirm that he was the Principal of Mochedi Secondary School.

46. Page 8 of Bundle C shows that the Applicant is the Chief Invigilator at Mochedi Secondary School, but she did not play that role as she was not at school. He was appointed Deputy Chief Invigilator. The Chief Invigilator is responsible to invigilate and the Deputy Chief Invigilator will take responsibility to invigilate when Chief Invigilator is not there. The Applicant did not report at school and he had to assist to run the school together with the Departmental Head, Mr Mabitsela. He was not given reasons why the Applicant did not report at school since the schools re-opened in January 2024.

Raymond Mpati testified under oath as follows:
47. He is employed as the Principal of Bosakgo Secondary School which is 8 km from Mochedi Secondary School. He also serves as the Branch Secretary of SADTU. In his capacity as the Branch Secretary of the union, he dealt with the issues at Mochedi Secondary School. On a certain date he could not remember exactly, he was called to a meeting by the District Director and Circuit Manager to consult with the union on serious allegations involving the Applicant. It was discussed that something had to be done to improve learners’ education at the school as it was just a school but there was no education.

48. As a representative from the union and representing the Applicant as their member, they proposed that the Applicant be allowed to work at his school and the District Director and Circuit Manager in discussion with the Applicant agreed to the union proposal. The Applicant however, did not pitch up at Bosakgo Secondary school the following week as agreed in the meeting. He made follow-ups out but he was unable to get hold of the Applicant.

49. He even asked the school site steward of union, Ms Senosha the whereabouts of the Applicant, but Ms Senosha told him that the Applicant was not at school. They then left the Applicant’s matter as they learnt that she was a member of PSA. They respected the Applicant’s right of association and to be represented by a union of her choice.

50. The Applicant never informed them as union representatives, of her wish or intention to declare a demotion dispute. However, there was no correspondence or documentary proof that the Applicant was demoted. The union still knows the Applicant as the Principal of Mochedi.

51. The union is also aware that Mr Mogotle, the Principal of Kwinana Secondary School went to Mochedi Secondary School in order to teach Physical Science as agreed with the Department as it was realized that Grade 12 and other grades learners were not taught Physical Science and they were about to write examinations. Mr Mogotle was requested to teach Physical Science as a teacher to support the learners up to date.

Patrick Lesetja Ledwaba testified under oath as follows:
52. He is employed as the Acting Principal at Moletjana Primary School and he is also the Chairperson of SADTU in Mogwadi Branch. He was aware of issues at Mochedi Secondary School as the Circuit Manager and the District Director called SADTU to the meeting in October 2022 and explained to them about the challenges at Mochedi Secondary School.

53. They were told that Mochedi Secondary School did not have schedules and parents did not receive learners’ reports. SADTU attended the meeting in the interest of their member, the Applicant who is the Principal of Mochedi Secondary School. They saw it better to reduce her workload and the union then suggested to take her to Bosakgo Secondary School but still as the Principal.

54. As SADTU, they asked the Applicant how was their proposal and she indicated that she did not have a problem with their suggestion. Afterwards, they called the SMT of Mochedi Secondary School and explained to them the decision taken to take the Applicant to Bosakgo Secondary School. The SMT also did not have a problem and accepted their suggestion.

55. As the Applicant was teaching Physical Science at Mochedi Secondary School, it was also suggested that Mr Mogotle, the Principal of Kwinana Secondary School would be taken to Mochedi Secondary School to teach Physical Science to learners because there was no Physical Science subject at his school. Mr Rangongo who was in excess, was to be taken to Kwinana Secondary school as the caretaker for Mr Mogotle who is the Principal.

56. The union then left everything in the hands of the Circuit Manger to speak to the SGB for the process to unfold. They thought things were as agreed but were surprised to receive information that the Applicant was unable to report to Bosakgo Secondary School as agreed. They did not know the reasons why she did not report there.

57. They were then invited to attend the arbitration hearing for the Applicant’s demotion dispute. The Applicant was not demoted as it can be seen on the attendance registers that the Applicant still signed on no 1 as the Principal of the school and Mr Mogotle signed after her. Position 1 is for the Principal. In his capacity as the Branch Chairperson of SADTU, he normally goes to Mochedi Secondary school to check up how are things as it is not very far from his school. He found that things were not well.

58. Mr Mogotle is referred to Page 2 of Bundle A2 as the Principal because he is the Principal but not Principal of Mochedi Secondary School. Mr Mogotle did not take over the Applicant’s position as the Principal of Mochedi Secondary School as there was also no appointment letter from the Department to move him from Kwinana to Mochedi Secondary School as the Principal. The Applicant is still the Principal of Mochedi Secondary School. Mr Mogotle is assisting at Mochedi Secondary school with SMT and his main role is to teach.

The Respondent closed its case.
ANALYSIS OF EVIDENCE AND ARGUMENTS

59. This matter was referred for as unfair labour practice in terms of Section 186(2)(b) of the LRA. The Applicant alleged that the Respondent committed an unfair labour practice towards her relating to demotion. The Applicant bears the onus to prove on a balance of probabilities that the Respondent committed unfair labour practice as alleged.t

60. It is common cause that the Applicant was appointed as an Educator and the Principal of Mochedi Secondary School with effect from 10 January 2022. It is also common cause that the school has not been meeting the required standard of performance of percentage 2022 and during the Applicant’s tenure. As a result, on 08 August 2023, a meeting was convened by the District Director Mr Mothemane, the District Manager, Ms Tlhako, SADTU Branch Secretary, Mr Mpati and SADTU Branch Chairperson, Mr Ledwaba in order to discuss about the performance of the school.

61. It is clear from the evidence presented by both parties that the meeting discussions also revolved around the performance of the Principal as the school was subsequently underperforming under her leadership and ways to correct the situation. The evidence presented by both parties is that a decision was taken to move the Applicant to Bosakgo Secondary School, and the Principal of Kwinana Secondary School, Mr Mogotle was to move to Mochedi Secondary School, where the Applicant was the Principal. The reasons for the move are disputed facts.

62. The crucial question to be determined is whether the decision to move the Applicant to another school amounted to her demotion or not. It is common cause that the salary and benefits of the Applicant as the Principal has not been affected as she was still earning the same salary of the Principal as at the time of the arbitration proceedings.

63. The Applicant has not disputed that she was part of the meeting on 08 August 2023 with the Circuit Manager, the District Manager, the Branch Secretary of SADTU, and the Branch Chairperson when her move to Bosakgo Secondary School was discussed. However, in her evidence, the Applicant testified that she was told to move to Bosakgo Secondary School without her consent and to go there and work as a normal teacher, no longer as the Principal. Further that the Principal of Kwinana Secondary School, Mr Mogotle was introduced to the school as the new Principal of Mochedi Secondary School on 10 and 14 August 2023.
64. The Applicant’s claims were challenged by the Respondent’s witnesses whom all testified that the Applicant was never demoted, but that instead it was an agreement that was reached at the meeting of 08 August 2023, after discussions and proposals were made by SADTU Branch Chairperson and Branch Secretary, due to the under performance of the school and the Principal.

65. According to the Respondent’s witnesses, the Circuit Manager, District Director, SADTU Branch Chairperson and Branch Secretary together with the Applicant agreed to move her to Bosakgo Secondary School as proposed by the union. According to the Circuit Manager, the agreed move was for the union intervention and supporting the Applicant regarding her underperformance and that the Applicant responded to the proposal in Sepedi by saying “Di a kwagala”, which in Sepedi can be interpreted to mean “It’s understandable”. The Applicant did not dispute that she uttered those words during the meeting discussion.

66. It is understandable can only mean nothing but a concurrence or agreement and that’s how it was understood by all in the meeting. I believe that if the Applicant objected, she would have made it clear to all that she was not in agreement, and as it was a proposal, it would not have been endorsed as an agreement. There would have been any imposition by the District Director and Circuit Manager as she was duly represented by her own union, SADTU which I am convinced was acting in the best interest of the Applicant to assist her and the Respondent to ensure that her performance is improved. It is a pity there was no record of the minutes of such discussions and agreement to move the Applicant.

67. It is apparent that the process was done in a very informal way, and taken simply from the basis that the Applicant agreed to be moved; but it is important that it should have been recorded, so as to avoid future disputes arising in terms of the actual discussions and resolutions or decisions taken in the meeting. The documentation should have also indicated that it was an agreed intervention of mentoring as part of the Applicant’s performance management system, and its objectives as well as its duration.

68. The Circuit Manager presented some documentary evidence of the monitoring and support tool dated 18 July 2023; and the Applicant agreed with the content of the report that depicted the findings/outcomes of the subject advisors’ visit to Mochedi Secondary School. The results that showed No to answers in almost all of the questions on areas of quality indicators. The document also showed if there was proof of evidence of work done by the Applicant, but it showed that no annual assessments were done, documents not distributed, no subject policies available in the curriculum management file, no record by the Principal allocating textbooks to HOD, no record of schedules, learners’ reports not issued to parents, and many others. The Applicant conceded that she was aware of the contents of the document although she did not sign it as the signatory appears to be that of Project Manager and CES, Mr Mangena and Mr Serongwa respectively.

69. Mr Mogotle testified that he was called by the Circuit Manager on an arrangement with him due to his ill-health to go and teach Physical Science at Mochedi Secondary School and he was still there teaching the subjects up to date. In response to the minutes which mentioned him as Principal he testified that the Principal was his position as he was appointed as such at Kwinana Secondary School; hence he was addressed as such. He further testified that the Applicant was not reporting at the Mochedi Secondary school regularly at her school since his arrival there in August 2023 as she came and left at her own time, sat in her car under the school tree in her car and as a result he could not let the school down. He then assisted the Departmental Head with some of the functions.

70. The Respondent’s version was that the Applicant was not given a demotion letter to move to Bosakgo Secondary School, nor was Mr Mogotle also given an appointment letter to be the new Principal of Mochedi Secondary School; and further that Mr Mogotle came to teach Physical Science subject to Grade 12 learners. In fact, the Applicant also confirmed in her evidence that Mr Mogotle was teaching Physical Science at Mochedi Secondary school.

71. The Applicant argued that in terms of Employment of Educators Act, as amended, in particular, section 8 (a), only the Director General or Head of Department may transfer any educator in the service of the relevant department to any post or position in any other department of State with the prior approval of the person in that department or state having the power to appoint or to transfer and with the consent of that educator, and that such transfer cannot be made unless the recommendations of the SGB of the public school has been obtained.

72. This argument is misplaced because the Applicant’s dispute is not a transfer but a demotion. If her dispute was transfer, the Council would not have jurisdiction to entertain it as transfer is not classified in section 186(2)(a) of the LRA as a dispute of unfair labour practice.

73. As at the time of the arbitration proceedings, the Applicant has not yet reported at Bosakgo Secondary School, and it is apparent that she continued reporting at her school as it appeared in the documentary evidence of the attendance registers of 19 October 2023 and 20 October 2023. The other days she was marked absent from school. The Applicant argued that the fact that the demotion was not implemented is irrelevant and that the decision of the Respondent as admitted to try to impose is enough to establish demotion. This argument on its own is a concession by the Applicant that the decision to move her was not implemented. In fact, this was the evidence of both parties that the Applicant never reported at Bosakgo Secondary School.

74. The Applicant did not refute the Respondent’s version that since the meeting of 08 August 2023 regarding her move to Bosakgo Secondary School, she came and left school as she wished and at her own time and sometimes not reporting at school but instead came to school and sat in her car under the tree. In contrast her evidence showed that after the decision to move her was taken, on 21 August 2023, she attended the Grade 12 examination SMT meeting at Harry Oppenheimer representing Mochedi Secondary School as the Principal and another meeting at Noordeland High School also as the Mochedi Secondary School Principal.

75. It was argued that Mogotle also attended the SMT meeting and signed as Principal. Indeed, as the register required designations, and he was the Principal, it was acceptable for him to sign as Principal. There is no evidence adduced that Mr Mogotle also signed as Principal of Mochedi Secondary School. In fact, Mr Mogotle’s unchallenged testimony was that he signed in his capacity as Principal of Kwinana Secondary School. The Applicant’s testimony supported the Respondent’s version that she never reported at Bosakgo Secondary School as she testified that she did not go there because she did not have the letter to confirm her movement.

76. The Applicant also challenged the fact that the minutes referred to her as Mam Sithole but to Mr Mogotle as the Principal. Unfortunately, the scribe of the minutes was not called as a witness to give testimony as to the context of the Principal in the minutes which could be subjected to a lot of interpretations. I accept Mr Mogotle’s version that the minutes addressed him as the Principal as he was such, but not for Mochedi Secondary School as the minutes did not state that he was the Principal of Mochedi Secondary School. The secretary, if called as a witness could have also clarified why she addressed in the minutes the Applicant as Mam Sithole. However, the fact that the Applicant was not addressed in the minutes as the Principal was not enough evidence to support her version that she was no longer the Principal of Mochedi Secondary School.

77. I accept the Applicant’s evidence that on some days she was booked off sick by the doctor and some medical certificates were submitted to support her version, which version was conceded by the Circuit Manager, who did not dispute the validity of the medical certificates. She accounted for those days but still did not account for the days that she was neither at Mochedi Secondary School nor Bosakgo Secondary School. The Circuit Manager led evidence that besides the medical certificates, which she conceded she received but did not sign the Applicant’s sick leave forms as it was her view supported by leave records that the Applicant depleted her sick leave cycle and was supposed to apply for incapacity leave. The Applicant produced her sick leave records which showed that she still had 14 days’ sick leave.

78. The Applicant, however did not refute the Circuit Manager’s evidence that she did not report to her about her whereabouts and she did not respond to the Circuit Manager when she communicated with her face to face or telephonically. It is common cause that the Respondent has not preferred any charges against the Applicant to date for unauthorised absence from work or poor work performance.

79. The Circuit Manager also adduced evidence supported by documents that the Applicant was appointed as the Chief Invigilator, as she was still the Principal of Mochedi Secondary School, but she failed or refused to acknowledge receipt of her appointment letter regardless of the fact that the letter was sent to her school and even personally delivered a copy for the Applicant‘s attention, and when she again visited the school, the Applicant had not taken the letter. Subsequently, Mr Mogotle was then appointed as the Deputy Chief Invigilator to manage the examinations due to the absence of the Applicant at the school. This evidence was not disputed by the Applicant.

80. I must not be hesitant in my findings, after careful considerations of all the facts and documents placed before me, that the Applicant has failed to adduce sufficient evidence to persuade me on a balance of probabilities that the Respondent committed unfair labour practice towards her relating to demotion.
81. The Applicant was not given a letter to state that she was demoted or her responsibilities have been taken away or reduced as the Principal. I was confronted with the overwhelming and persuasive evidence of the Respondent showing that the Applicant’s school was under performing under her leadership. The Respondent submitted further documentary evidence of the subjects’ advisers visit of 18 July 2023, depicting most of the performance areas not carried out by the Applicant.

82. I am convinced by the Respondent’s evidence of the meeting that decided to support the Applicant and relieve her of the workload, and the agreement solicited with the Applicant, with no objection by her to move to Bosakgo Secondary school. Although, there is no evidence of the documented process to be followed after the Applicant’s move, the evidence presented by the Circuit Manager was that SADTU requested to mentor the Applicant and the Circuit Manager, the District Director and the Applicant agreed to that support. This evidence was corroborated by Mr Mpati, the Branch Secretary and Mr Ledwaba, the Branch Chairperson, who all corroborated each other that Mr Mpati was going to be the Applicant’s mentor at his school Bosakgo Secondary School, as a result of an intervention to assist the Applicant in improving her performance.

83. The agreement was that the Applicant would still occupy her position as the Principal, but not the Principal of her appointed school; and further that as all Principals are also required to teach learners as well, hence she was going to also teach at that school. Therefore, it was expected of her to still continue teaching the learners even at Bosakgo Secondary School.

84. It is clear in my mind that despite the agreement by the Applicant to move, the Applicant reneged from the agreement and never reported at Bosakgo Secondary school as agreed, but instead absented herself from school without reporting to the Circuit Manager of her whereabouts, on days that she was nor booked off sick.

85. I am not convinced according to the evidence presented before me that the Applicant was forced during the meeting to move to Bosakgo Secondary School. There was no record of the minutes of that meeting except the one presented by the Applicant dated 10 August 2023, in which the Circuit Manager addressed the SGB and informed them that the Applicant was to report at Bosakgo Secondary School and Mr Rangongo was to report at Kwinana Secondary School, as directed by the District director. It is evident that the directive of the District Director came subsequent to the agreement reached in the meeting of 08 August 2023.

86. I have no reason to doubt the evidence of the Respondent’s witnesses, which I found corroborated each other in many material respects as compared to the evidence of the Applicant. What is clear to me is that even if it could be said that the Applicant was demoted by the Respondent when a decision was taken to move her to Bosakgo Secondary School, and my view is that she was not demoted, the decision was never implemented as the Applicant never reported for duty and was kept at Mochedi Secondary School as the Principal until the date of the arbitration proceedings as it was observed that she reneged from the agreement to move. Uncontested evidence was led that the District Director reversed the union intervention as the Applicant refused to move.

87. It is surprising that the Applicant lodged a grievance on 13 July 2023 about unfair labour practice, unfair treatment, psychological torture and unpaid claims, but she did not lodge grievance about the alleged demotion and force to move to Bosakgo Secondary School, which was a more serious one as it would have changed the terms and conditions of her employment.
88. Based on the above findings, I therefore find that the Applicant has not succeeded to discharge her onus of proof on a balance of probabilities that she was demoted by the Respondent, and I will therefore dismiss her claim.

AWARD

89. I find that the Respondent did not commit unfair practice against the Applicant relating to demotion.
90. The Applicant’s claim is hereby dismissed.

GRACE MAFA-CHALI
ELRC PANELLIST