ELRC429-23/24MP

Panellist: THABE PHALANE
Case No.: ELRC 429-23/24 MP
Date of Award: 08 MAY 2024

In the Arbitrator between:

Mabunda, Sizani Thelma
(Employee / Applicant)

and

Department of Education- Mpumalanga
(Employer / Respondent)

Employee’s representative: Mr Lungitani Matsilele
Telephone:
Telefax:
Email:

Employer’s representative: Mr Sifiso Khoza
Telephone:
Telefax:
Email:

DETAILS OF HEARING AND REPRESENTATION.
1.1 The arbitration took place on 12 April 2024, at Mpumalanga Government Offices, Nelspruit.

1.2 Both parties attended and the Applicant was represented by Mr Lungitani Matsilele, an Attorney from Matsilele Attorneys, whilst the Respondent was represented by Mr Sifiso Khoza, the Respondent’s representative.

1.3 The proceedings were digitally recorded.

1.4 The Respondent handed in a bundle of documents marked bundle ‘R1 and R2’ and the Applicant submitted her bundle of documents which were marked bundle ‘A’. The Respondent called one witness who testified and was cross-examined and the Applicant testified and was also cross-examined.

1.5 The parties agreed to submit written closing arguments on 20 April 2024. The Respondent submitted on 18 April 2024, and the Applicant submitted on 22 April 2024.

1.6 I then proceeded to issue the following award.

ISSUE TO BE DECIDED
1.7 I am required to determine whether the Respondent demoted the Applicant and therefore committed an unfair labour practice against the Applicant or not, and consequent thereon, to issue the appropriate relief..

BACKGROUND TO THE DISPUTE
1.8 The Applicant was employed as an educator from 01 January1990 and started acting as a Principal from 15 December 2015. She was appointed in 2016 as Principal at Buhle Primary school in Kabokweni.

1.9 There was a meeting at the school and the security officers informed her that she must not drive to the school. She was escorted to the meeting by the Police. The Station Commander of the Kabokweni Police Station informed the Respondent to remove the Applicant from the school premises and protect her. So they took her to the Police Station.

1.10 From March 2018 to 07 November 2018 she was at home. She submitted that she is placed under a tree with no offices or functions.

1.11 On 07 November 2018 she was moved to the Circuit Offices and on 20 June 2019 she was moved to the District Offices.
1.12 The applicant wants to be placed in any position equivalent to Principal or any adjustment post in the District.
1.13 The Respondent on the other hand submitted that the Applicant was not demoted. She received all her salary, adjustments, increments and her notch was not tampered with.

SURVEY OF EVIDENCE AND ARGUMENT

APPLICANT`S EVIDENCE AND ARGUMENTS

1st witness, Ms Thelma Sizani Mabunda testified as follows:
1.14 She submitted that she received an invitation to a meeting with the community but said they must call the SGB.

1.15 On 19 March she was called by a Councilor who told her that she was not safe. The Applicant called the Circuit Manager who said she knew of the situation. He directed the Applicant and staff to go to the circuit office.

1.16 Whilst at the circuit office, she got a call that she must go to the community on 20 March to answer their list of grievances.t
1.17 She responded to what she knew and the community was satisfied with her answers. The main issue was the allegation that she squandered R 100 000.00 meant for building the school and instead bought a car hence the community wanted to burn it.

1.18 On 23 March she was called by the SAPS Intelligence and told that she would be accompanied to the school by the MMC of Safety and the Station Commander to calm the situation.

1.19 She responded to the questions and told them she cannot access money deposited to the school.

1.20 The meeting did not end well and she was escorted out of the school and the area to the Police Station.

1.21 The Applicant did not know what to do or where to go. The Circuit Manager said the case is in the hands of the District.

1.22 Some members lied to the community and she went to the Courts to clear her name and seek redress.

1.23 She also approached the Department in the Province and was told the money was recovered in the Department’s coffers.

1.24 She was nearly killed for the money that the Department knew about.

1.25 From March 2018 she was told to report at the circuit offices. The Circuit Manager said she does not have any duties for the Applicant at the circuit. She is parking under a tree.

1.26 During June 2019 she was told that the Department wanted to take her to the District office but there was no formal written document to that effect. She reported in July 2019 and she was shown the time-book in the Director’s office and she was told that they were still going to sit down and see where to patch her. She has been waiting till today.

1.27 She just goes to the office to sign and sits in her vehicle as no duties are allocated to her.

1.28 During March 2021, she received a call to report at the Circuit Office. She was issued with a formal letter of placement that wanted her to go to PL3 as a Senior Education Specialist and that constituted a voluntary lowering of her post level so she refused to sign.

1.29 She was directed to go to the District Office. She never wanted to go to the District Office. She does not have any duties, does not implement any policies or have anyone report to her as she has no authority.

1.30 The whole situation has caused a lot of pain, embarrassment, loss of dignity and depression. Her family has also been affected and she cannot plan for the future.

1.31 The school has been opened and she wants to be compensated, go back to work and be treated safely. She will accept an alternative as long as her salary is not touched.

Under cross examination she testified as follows:
1.32 She submitted her medical reports to the former Chief Director of the Respondent in 2018 but did not make follow-ups about its progress.
1.33 She did not accept the offer put to her and conceded that the offer was made until the challenges were resolved.
1.34 She submitted however that after the challenge of the missing R 100 000.00 was resolved she was never taken back and as a victim the matter has not been resolved.
1.35 She conceded that her post does not have an office grading; and that she was not getting QMS. She wrote to the District to assist with the evaluation. The Director said she must go to one of the schools and she was evaluated in 2022.
1.36 All her adjustments were paid and her salary has not been tampered with.

RESPONDENT`S EVIDENCE AND ARGUMENTS

Mr Sifiso Khoza testified as follows:
1.37 He works in the Directorate: Labour Relations, Grievance and Disputes.
1.38 The Applicant’s situation is not a demotion but one covered by Collective Agreement No 04 of 2003-Post and Salary Structure for Educators. It seeks to correct a situation where an educator is transferred.

1.39 It states that all post level 3 Educators, except Principals, adjust to the position of Senior Education Specialist (SES) or Deputy Principal, whichever is applicable. It was therefore impossible to grade the Applicant because she is a post level 4 Educator and cannot be a SES.

1.40 The agreement goes further and states that all post level 4 Educators, except Principals, adjust to the position of Deputy Chief Education Specialist (DCES). Again it would be possible to grade the Applicant if she was an Educator on level 4 but she is a Principal and it is not possible.

1.41 If the Applicant wants to become DCES, she has to apply for the post.
1.42 The relief sought by the Applicant is therefore impossible.

Under cross examination, he testified as follows:
1.43 If the arbitration award orders that the Applicant be placed in an equivalent position, the Department will implement it if it is for a Principal position.
1.44 It would be possible to grade the Applicant if she was on post level 3 and because she is post level 4 she cannot be graded lower.
1.45 There are Educators on level 4, like the Deputy Principal or HOD, depending on experience and years of service.

ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.46 Section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA), by implication, permits an Employer to demote an Employee, provided that this is done fairly. Employees who complain of unfair demotion must prove that they have actually been demoted.

1.47 A demotion does not occur merely because the Employee is placed in a post involving slightly different work, especially when that work falls within the scope of the Employee's duties. The mere fact that an Employee's title is changed is not necessarily proof of a demotion; something more is required. The change in the Employee’s position in the organization must also entail a loss of benefits or a lowering of the Employee’s status.

1.48 The Employee’s prestige, status and even work-duties may also be less because a demotion could also mean a reduction or diminution of dignity, importance, responsibility, power or status even if salary, attendant benefits and rank are retained.

1.49 In SAPS v Salukazana and others (P 284/09) [2010] ZALC 25; (2010) 31 ILJ 2465 (LC); [2010] 7 BLLR 764 (LC) (handed down on 16 February 2010), the Employee was notified by a letter headed “lateral transfer” that he had been permanently transferred to a new position. The effect of the transfer was that although he remained on level 13 and his salary and benefits were not changed, his status had been diminished. In the past he reported to the Area Commissioner, in his new position he was expected to report to a person below the Area Commissioner. The Court found that demotion can manifest itself in many ways. It can arise through a reduction of salary, a change to terms and conditions of employment and a transfer. In fact, a demotion and a transfer have common attributes - there is a movement in both a demotion and a transfer. If the movement leads to a reduction in status, it is a demotion. Thus, if a transfer leads to a change in terms and conditions of employment which amounts to demotion.

1.50 In this matter the Respondent does not dispute that the Applicant was transferred and that her transfer was not done at the instance of the Respondent but by the actions of the community. There was no sanction imposed on the Applicant which would normally be associated with her conduct or performance.
1.51 The requirement to consult an employee who is transferred is more applicable when the transfer constitutes a demotion. Although the Employee could elect the school to which she wished to go, there was only limited consultation due to the volatility of the situation. It was thus not unfair for the Respondent not to consult with the Applicant prior to taking the decision to transfer her to the Circuit Offices.

1.52 The Respondent then accommodated the Applicant at both the Circuit and District offices. The issue to determine is whether this transfer constitutes a demotion or not.

1.53 In this case the transfer did not lead to a reduction in status. The Applicant still reported to her Manager and not a person with a lower status. The remedy that she wants is also akin to a lateral transfer or grading.

1.54 There was again no change to the terms and conditions of employment because the Applicant refused to accept the offer as it would have moved her to Senior Education Specialist (SES) which is post level 3 and she is post level 4.

1.55 Although her salary and attendant benefits have been retained, the Applicant’s prestige, status and even work-duties is less because of her safety issues and this has led to a reduction or diminution of dignity, importance, responsibility, power and status.

1.56 The challenge for the Applicant however is that these unsafe actions are not carried out by the Respondent but by the community. It has nothing to do with the Applicant’s performance and it was also proved that the alleged missing money is in the coffers of the Department.

1.57 The Applicant wanted to be moved to the position of Deputy Chief Education Specialist or an equivalent post. The remedy she seeks is not possible as the Collective Agreement states that all post level 4 Educators, except Principals, adjust to the position of Deputy Chief Education Specialist (DCES). If she was an educator on level 4 the option could be looked into but she is a Principal and it is not possible.

1.58 The Applicant also wanted compensation for the unfair treatment. I find that the Applicant cannot in good conscience submit that the Respondent failed to respond to her safety issues and put her life first. It may not be the ideal situation she finds herself in but that does not result in a finding that the Respondent demoted her.

1.59 The Applicant’s post of Principal is still available and the Applicant can approach the school and resume her duties.
1.60 It is therefore my finding that the Applicant has failed to demonstrate that the Respondent demoted her.
In these circumstances, I make the following award

AWARD
1.61 The Applicant has failed to show that the Respondent committed an unfair labour practice by demoting her.
1.62 The referral of the Applicant is accordingly dismissed.