PSES 434-19/20EC
PSES 434-19/20EC
Award Date:
9 November 2019
Case Number: PSES 434-19/20EC
Province: Eastern Cape
Applicant: Lynette Pumla Nkenke & 1 Other
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Education Learning Institute in East London
Award Date: 9 November 2019
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: PSES 434-19/20EC
Date of Award: 9 November 2019
In the ARBITRATION between:
Lynette Pumla Nkenke & 1 Other
(Applicants)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mr Ngcelwane
C/o Maphosa and Associates
Applicant’s address: 39 Balfour Road
Vincent, East London
6055 Telephone: 078 536 2990
Telefax: 086 527 7418
Email fsmaphosa@maphosalaw.co.za
Respondent’s representative: Mr Jevu
Respondent’s address: Private Bag X0032
Bisho
5606
Telephone: 0793894254
Telefax: 040 6044313
Email lwandojevu@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the Education Learning Institute in East London on 29 October 2019. The proceedings were electronically recorded. The Applicants, Lynette Pumla Nkenke and Vuyolwethu Felicia Kwakweni were represented by Ngcelwane, an attorney. The Respondent, Department of Education: Eastern Cape was represented by Mr Jevu, a Labour Relation Officer. The parties by agreement submitted written closing arguments on 6 November 2019.
ISSUE TO BE DECIDED
2. I am required to determine whether or not, the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA in demoting the Applicants, Lynette Pumla Nkenke and Vuyolwethu Felicia Kwakweni as Deputy Principals, salary level 9, post level 3.
CONSOLIDATION
3. At the commencement of the proceedings, the parties concluded a consolidation agreement wherein they agreed to consolidate the case of Vuyolwethu Felicia Kwakweni under case number PSES435-19/20EC with the current case involving Lynette Pumla Nkenke. Both individuals were previously Deputy Principals at Chumani Primary School and as a consequence to an arbitration award where they were joined as interested third parties in the promotion dispute of Mr Kwetana and Ms Nondlwana under case number PSES679-17/18EC their appointments as Deputy Principals were set aside. The Vuyolwethu Felicia Kwakweni who seeking consolidation of her dispute with the dispute of Lynette Pumla Nkenke further agreed that the matter may proceed without a notice of set-down and without the matter having to be rescheduled. Based on the agreement I rendered an oral consolidation ruling consolidating both matters and then proceeded with the arbitration.
BACKGROUND
4. In terms of narrowing of the issues at the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:
4.1 The Applicants were appointed on 1 November 2007 as Deputy Principal’s, Salary Level 9, Post Level 3 at Chumani Primary School. They both were appointed to salary scale R367 773 per annum.
4.2 The Applicants prior to their appointments / promotions were employed at other schools.
4.3 On 9 January 2019, Panellist Ms Huber issued an award under case number PSES679-17/18EC wherein she set aside the appointments of the Applicants and directed that the promotion process be redone from the advertisement stage. The Applicants were joined in that dispute in that they were the incumbents of the posts that were challenged.
4.4 Subsequent to arbitration award of Panellist Ms Huber, Ms Nkenke has applied again for the post and the process has not been finalised. Ms Kwakweni however has not applied for a post after the positions were re-advertised.
4.5 Ms Lynette Pumla Nkenke monthly salary was reduced to R32 599.00 and Ms Vuyolwethu Felicia Kwakweni monthly salary was reduced to R33487.00 as a consequence to the arbitration order setting aside the appointments.
4.6 The Applicants are unhappy about them been demoted to their previous positions they held prior to their promotion as well as the reduction in salary. The Applicant further claim that the award does not empower the Respondent to demote them to the positions they previously held prior to their promotion. The Respondent according to the Applicants by demoting them to their previous positions as well as reducing their salaries have reduced their status. They further challenged the manner in which the Respondent implemented the award.
4.7 The Applicants seek that they be reinstated as Deputy Principal’s and allocated to a different school. The Respondent argued that the Applicants were not demoted in that they were only implementing the award setting aside the appointment of the Applicants. The Applicants had the opportunity to review the award setting aside their appointments in the Labour Court and they did not choose to do so.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
6 Ms Lynette Pumla Nkenke testified under oath to the following effect
6.1 Subsequent to her demotion she is currently working as a post level I educator at Buffalo Flats Primary School and she has no managerial duties. Her duties are that of a post level I educator. During the period 1 November 2017 to 7 January 2019 she worked at Chumani Primary School along with Vuyolwethu Felicia Kwakweni as Deputy Principals.
6.2 On 7 January 2019 after reporting for work, the Applicants in case number PSES679-17/18EC Mr Kwetana and Ms Nondlwana along with the parents demanded their (Ms Nkenke and Ms Kwakweni) removal from the school in that they claimed that the posts should have been given to teachers who were working at Chumani Primary School. Their lives were threatened if they did not leave the school. The parents chased them away fortunately another educator gave them a lift.
6.3 They both went to the District Office to report what happened and they were told to stay at home.
6.4 On 6 June 2019, they received a call from the District Office, Ms Swarts inform them of the arbitration award setting aside their appointments and she told them to report to their previous schools. The only received the arbitration award during April 2019.
6.5 As a consequence to what occurred her dignity was affected and she is not coping because of the salary cut. She is currently seeking psychiatric treatment.
6.6 Under cross examination, when questioned as to how the award should have been implemented, she responded that according to the award they had done nothing wrong and the award did not mention that they must be demoted, it does not say that they must be demoted as Deputy Principals.
ANALYSIS OF EVIDENCE AND ARGUMENT
7. The arbitration award, the cause of the unhappiness ordered that the appointment of Lynette Pumla Nkenke and Vuyolwethu Felicia Kwakweni, in the Deputy Principal Posts at Chumani Primary School be set-aside from date of that award. The Department of Education: Eastern Cape was further ordered to redo the process for the two deputy principal posts at Chumani Primary School from the advertising stage. The Department of Education: Eastern Cape was also ordered to appoint an independent panel to undertake the shortlisting and interview processes for the two deputy principal posts of Chumani Primary School, which panel to comprise of different individuals to those that sat on the panel previously thereby to ensure that the newly appointed panel is compliant as far as practicable with the composition of the Interview Committee in terms of relevant legislation and collective agreements prescripts.
8. The question that remains, did the Respondent demote the Applicants or did the arbitration award setting aside their appointment cause their demotion/ reduction in salary and status.
9. Section 186(2)(a) of the LRA defines an unfair Labour practice to mean any act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to demotion.
10. The Applicants argued that the arbitration award that set aside their appointments as Deputy Principles at Chumani Primary School never set aside their promotion to Deputy Principals, salary level 9, Post level 3 and therefore the Respondent should have transferred them to other schools as Deputy Principal’s without reducing their salary and status.
11. The problem I have with the Applicants reasoning is that they were promoted because of their appointments as Deputy Principals at Chumani Primary School, there upward movement in status that resulted in an increase in salary was because of their appointment to the specific posts. The arbitration award, the cause of the Applicants unhappiness, the setting aside of their appointments resulted in the reduction in salary and status. As a consequence to the setting aside of their appointments by the arbitration award, they automatically revert to their positions they held prior to their appointment/promotion.
12. I have sympathy for the Applicants and comprehend the hardships they are now experiencing. Considering the nature pof the dispute referred, the Respondent did not demote the Applicants, therefore no unfair labour practice was committed.
AWARD
13. I find that the Respondent, Department of Education: Eastern Cape did not commit an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA as it relates to demotion involving the Applicants Lynette Pumla Nkenke and Vuyolwethu Felicia Kwakweni.
Name: Jonathan Gruss
ELRC Arbitrator
Province: Eastern Cape
Applicant: Lynette Pumla Nkenke & 1 Other
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Education Learning Institute in East London
Award Date: 9 November 2019
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: PSES 434-19/20EC
Date of Award: 9 November 2019
In the ARBITRATION between:
Lynette Pumla Nkenke & 1 Other
(Applicants)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mr Ngcelwane
C/o Maphosa and Associates
Applicant’s address: 39 Balfour Road
Vincent, East London
6055 Telephone: 078 536 2990
Telefax: 086 527 7418
Email fsmaphosa@maphosalaw.co.za
Respondent’s representative: Mr Jevu
Respondent’s address: Private Bag X0032
Bisho
5606
Telephone: 0793894254
Telefax: 040 6044313
Email lwandojevu@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the Education Learning Institute in East London on 29 October 2019. The proceedings were electronically recorded. The Applicants, Lynette Pumla Nkenke and Vuyolwethu Felicia Kwakweni were represented by Ngcelwane, an attorney. The Respondent, Department of Education: Eastern Cape was represented by Mr Jevu, a Labour Relation Officer. The parties by agreement submitted written closing arguments on 6 November 2019.
ISSUE TO BE DECIDED
2. I am required to determine whether or not, the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA in demoting the Applicants, Lynette Pumla Nkenke and Vuyolwethu Felicia Kwakweni as Deputy Principals, salary level 9, post level 3.
CONSOLIDATION
3. At the commencement of the proceedings, the parties concluded a consolidation agreement wherein they agreed to consolidate the case of Vuyolwethu Felicia Kwakweni under case number PSES435-19/20EC with the current case involving Lynette Pumla Nkenke. Both individuals were previously Deputy Principals at Chumani Primary School and as a consequence to an arbitration award where they were joined as interested third parties in the promotion dispute of Mr Kwetana and Ms Nondlwana under case number PSES679-17/18EC their appointments as Deputy Principals were set aside. The Vuyolwethu Felicia Kwakweni who seeking consolidation of her dispute with the dispute of Lynette Pumla Nkenke further agreed that the matter may proceed without a notice of set-down and without the matter having to be rescheduled. Based on the agreement I rendered an oral consolidation ruling consolidating both matters and then proceeded with the arbitration.
BACKGROUND
4. In terms of narrowing of the issues at the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:
4.1 The Applicants were appointed on 1 November 2007 as Deputy Principal’s, Salary Level 9, Post Level 3 at Chumani Primary School. They both were appointed to salary scale R367 773 per annum.
4.2 The Applicants prior to their appointments / promotions were employed at other schools.
4.3 On 9 January 2019, Panellist Ms Huber issued an award under case number PSES679-17/18EC wherein she set aside the appointments of the Applicants and directed that the promotion process be redone from the advertisement stage. The Applicants were joined in that dispute in that they were the incumbents of the posts that were challenged.
4.4 Subsequent to arbitration award of Panellist Ms Huber, Ms Nkenke has applied again for the post and the process has not been finalised. Ms Kwakweni however has not applied for a post after the positions were re-advertised.
4.5 Ms Lynette Pumla Nkenke monthly salary was reduced to R32 599.00 and Ms Vuyolwethu Felicia Kwakweni monthly salary was reduced to R33487.00 as a consequence to the arbitration order setting aside the appointments.
4.6 The Applicants are unhappy about them been demoted to their previous positions they held prior to their promotion as well as the reduction in salary. The Applicant further claim that the award does not empower the Respondent to demote them to the positions they previously held prior to their promotion. The Respondent according to the Applicants by demoting them to their previous positions as well as reducing their salaries have reduced their status. They further challenged the manner in which the Respondent implemented the award.
4.7 The Applicants seek that they be reinstated as Deputy Principal’s and allocated to a different school. The Respondent argued that the Applicants were not demoted in that they were only implementing the award setting aside the appointment of the Applicants. The Applicants had the opportunity to review the award setting aside their appointments in the Labour Court and they did not choose to do so.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
6 Ms Lynette Pumla Nkenke testified under oath to the following effect
6.1 Subsequent to her demotion she is currently working as a post level I educator at Buffalo Flats Primary School and she has no managerial duties. Her duties are that of a post level I educator. During the period 1 November 2017 to 7 January 2019 she worked at Chumani Primary School along with Vuyolwethu Felicia Kwakweni as Deputy Principals.
6.2 On 7 January 2019 after reporting for work, the Applicants in case number PSES679-17/18EC Mr Kwetana and Ms Nondlwana along with the parents demanded their (Ms Nkenke and Ms Kwakweni) removal from the school in that they claimed that the posts should have been given to teachers who were working at Chumani Primary School. Their lives were threatened if they did not leave the school. The parents chased them away fortunately another educator gave them a lift.
6.3 They both went to the District Office to report what happened and they were told to stay at home.
6.4 On 6 June 2019, they received a call from the District Office, Ms Swarts inform them of the arbitration award setting aside their appointments and she told them to report to their previous schools. The only received the arbitration award during April 2019.
6.5 As a consequence to what occurred her dignity was affected and she is not coping because of the salary cut. She is currently seeking psychiatric treatment.
6.6 Under cross examination, when questioned as to how the award should have been implemented, she responded that according to the award they had done nothing wrong and the award did not mention that they must be demoted, it does not say that they must be demoted as Deputy Principals.
ANALYSIS OF EVIDENCE AND ARGUMENT
7. The arbitration award, the cause of the unhappiness ordered that the appointment of Lynette Pumla Nkenke and Vuyolwethu Felicia Kwakweni, in the Deputy Principal Posts at Chumani Primary School be set-aside from date of that award. The Department of Education: Eastern Cape was further ordered to redo the process for the two deputy principal posts at Chumani Primary School from the advertising stage. The Department of Education: Eastern Cape was also ordered to appoint an independent panel to undertake the shortlisting and interview processes for the two deputy principal posts of Chumani Primary School, which panel to comprise of different individuals to those that sat on the panel previously thereby to ensure that the newly appointed panel is compliant as far as practicable with the composition of the Interview Committee in terms of relevant legislation and collective agreements prescripts.
8. The question that remains, did the Respondent demote the Applicants or did the arbitration award setting aside their appointment cause their demotion/ reduction in salary and status.
9. Section 186(2)(a) of the LRA defines an unfair Labour practice to mean any act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to demotion.
10. The Applicants argued that the arbitration award that set aside their appointments as Deputy Principles at Chumani Primary School never set aside their promotion to Deputy Principals, salary level 9, Post level 3 and therefore the Respondent should have transferred them to other schools as Deputy Principal’s without reducing their salary and status.
11. The problem I have with the Applicants reasoning is that they were promoted because of their appointments as Deputy Principals at Chumani Primary School, there upward movement in status that resulted in an increase in salary was because of their appointment to the specific posts. The arbitration award, the cause of the Applicants unhappiness, the setting aside of their appointments resulted in the reduction in salary and status. As a consequence to the setting aside of their appointments by the arbitration award, they automatically revert to their positions they held prior to their appointment/promotion.
12. I have sympathy for the Applicants and comprehend the hardships they are now experiencing. Considering the nature pof the dispute referred, the Respondent did not demote the Applicants, therefore no unfair labour practice was committed.
AWARD
13. I find that the Respondent, Department of Education: Eastern Cape did not commit an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA as it relates to demotion involving the Applicants Lynette Pumla Nkenke and Vuyolwethu Felicia Kwakweni.
Name: Jonathan Gruss
ELRC Arbitrator