PSES457-13/14 GP
PSES457-13/14 GP
Award Date:
22 December 2014
Case Number: PSES457-13/14 GP
Province: Gauteng
Applicant: Lindiwe Buhle Ngubeni
Respondent: Gauteng Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Venue: ELRC offices
Award Date: 22 December 2014
Arbitrator: Manisha Singh
DETAILS OF HEARING AND REPRESENTATION
1. The Applicant is Lindiwe Buhle Ngubeni (educator). The Respondent is The Department of Education - Gauteng (employer). The hearing was held at the ELRC offices, 111 Commissioner Street Johannesburg on 31 January 2014, 30 September 2014, 1 and 2 October 2014 and 2 December 2014. The parties handed in closing submissions on 18 December 2014.
ISSUE TO BE DECIDED
2. The matter is brought in terms of section 186 (1) (e) of the Labour Relations Act 66 of 1995 – i.e. constructive dismissal. It is therefore to be determined if the Respondent made continued employment intolerable for the Applicant.
BACKGROUND TO THE ISSUE
3. The Applicant was was educator and employed as an HOD at George Mbilase Primary School (GM) in 2000. In 2009 she was promoted to Deputy Principal at the same school.
4. She tendered her resignation on 11 September 2013 on the basis that the employment relationship was rendered intolerbale by the Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s Evidence
5. At the outset of her commencing work at George Mbilase Primary School, her introduction to the other educators was not favourable. It was a ‘non-teaching’ institute.
6. The Principal was Mr. Nhleko (Principal).
7. On her arrival at the school in the mornings she found the office to be locked and educators arrived between 8.00 am and 11.30 am. They would sign in the time of arrival as 7.45 am. She had asked the Principal as to the time that educators arrived and he indicated around 8.00 am.
8. There were many cliques in the school. The chairperson of the SGB, Eric did not have a child at the school.
9. However she had had a good relationship with the Principal initially. Some educators liked her and others just did not.
10. Whilst still very new at the school the Principal had requested that she deposit school fund money and she noticed that monies in the previous months had not been deposited. She had informed the Principal and the responsible administrator (Thandi) was called and requested to pay back the said money.
11. Around this time as well the Principal had informed her of a plot to kill her (by Xaba clique) and he suggested that she should not come to school. She had reported it to the District offices – Benoni.
12. As HOD she had reprimanded educators for standing in the corridors and for late coming. Often remarks were passed however she was achieving her goal of changing the school.
13. She converted the staff room into a library. In 2011 substance abuse by educators was on the increase and so was absenteeism. Throughout the years some educators - Xaba and Miss Mdunusi had ganged up against her. Mdunisi used substances especially on a Monday and a Friday. Their clique was becoming smaller so they got learners and parents to gang up against her.
14. When she was appointed as deputy things got worse. Throughout she had a good relationship with the Principal however this had deteriorated when the IDSO, Darling Tshabalala (Darling) had requested the Principal to follow procedure and allow the Applicant to co-ordinate the LTSM which is responsible for purchasing of books, obtaining quotes from different suppliers and meetings. He however insisted that Mdunisi retain that function and that the Applicant will only sign information that is needed by the district. She had refused. He would then leave her out of LTSM activities. She had complained to the district.
15. The Principal and Xaba, who were enemies joined forces all of a sudden. Prior to her joining the school Xaba had hit the Principal with a fan.
16. The Principal met with an accident and was off sick from about September 2010 to about February 2011. The Principal had requested Xaba to manage the school in his absence and helped her to gain support from the PS staff. However the IDSO said that in the Principal’s absence the deputy is in charge.
17. While acting as the principal she discovered that Eric had received a brand new laptop from the Principal. Thandi Ngwenya (Thandi), the finance administrator used the grade R school fees for her own personal use.
18. The Principal had arrived early from his sick leave. He was meant to return in February 2011 but had returned on 28 January 2011. On his return he had demanded the Blackberry phone from her and refused to do a handover. He then requested the PS staff and the administration office to monitor all of her movements.
19. The grounds men were monitoring her outside in the parking area. The Principal changed the keys to the offices and instructed that all office keys (his office, LTSM room and the library) are to remain with Thandi and that anyone wishing to enter these offices must request her permission. Xaba had attended curriculum workshops and meetings that were meant for deputies.
20. She found that the PS staff had neglected their duties and had spent a lot of time in the office of Xaba and Mdunsi. The Principal and Eric would also join them. Sometimes the Principal sat with them the whole day.
21. Eric had used the school phone for his political activities. The Principal also had requested the PS staff to not clean her office.
22. There were lots of issues between March 2011 and September 2012. She was wrongfully accused of invigilating her own papers. She had reported the matter to the IDSO in March 2011 and they had only taken action in September 2011.
23. In April 2011 the PS staff had conspired against her and wrote a letter in Zulu, which was given to the Principal. It was alleged that whilst the Principal was not at school she had called him names. The District resolved the issue and Sadtu was present as well. The allegations were found to be lies. It was actually a cleaner that called the Principal names.
24. In September 2012 she had lodged a grievance in respect of the way she was treated at the school.
25. In September 2012 the Principal was to retire however he had refused. He wrote several letters to the District to extend his retirement until the appointment of a new Principal. His retirement was not extended and on 2 October 2012 he was asked to leave and he had refused. She was meant to act but was chased away.
26. An SGB meeting was held on 2 November 2011 and she was not informed of it. It was to bid farewell to the Principal and for her to take over. One parent said that if the Principal was leaving then she should go as well. She was called a dog and it was planned that she must be stopped.
27. On 5 November 2012 she was blocked by parents and leaners from entering the school. She found most of the people were actually not from the school but were friends of Eric and his sister who had a child in the school.
28. She was then taken to the district office and was advised that it was for her safety. The district then sent an administrator to act as Principal, which is against policy, as she had to act in that post by virtue of her, been the deputy.
29. The District Director and Mr. Nkosi said that they were to investigate the matter and give her feedback.
30. At the District Office she had to make tea and help with re-locations. She was doing administrative work and she was an educator.
31. Nkosi then informed her that the parents had not wanted her as she had said to them that they ‘stink like their children’. She requested that they furnish the minutes and the register as to when she had said it.
32. On 28 January 2013 the Director had informed her that all allegations were unfounded and therefore she would be taken back to her post. Further that the post of Principal will be re-advertised as the recruitment process was questionable and as the deputy the Applicant should have been short-listed. She lodged a grievance in this respect on 26 November 2012. The District Office acknowledged receipt of it on 28 November 2012.
33. On 28 January 2013 she was requested to report back for duty at GM on 31 January 2013.
34. From February 2013 to May 2013 she was sitting at the District office doing admin work. She was moved to Faku’s (IDSO) office. She was frustrated as she was an educator. There was no communication about developments in respect of her returning to school.
35. Although the District Director had said that the post of principal would be re-advertised, Xaba was appointed in that post on 8 May 2013 and Sello had informed her that the post had not been re-advertised.
36. She found that one thing is said and another is done. She had escalated her grievances to the chief director, Adv. Alison on 21 November 2012. She had also sent a letter to Patrick Selowa about the recruitment procedure. She had requested for assistance and no one responded.
37. The Applicant’s health was affected. She was in and out of hospital for depression. She had the medical certificates in support of her condition. She had communicated with Faku as to her whereabouts and he had requested a letter. She was booked into a psychiatric hospital. She was unfit for work till 2 September 2013. She was booked off from July 2013 to August 2013. She had completed her leave form for temporary incapacity. She had also made application to use her capped leave.
38. Although the district office was aware of her whereabouts they froze her salary for August 2013. Upon resignation the Respondent should have unfroze her salary. They were aware of her whereabouts and she had submitted the paperwork. Her daughter had even called in as to her whereabouts. The Respondent was inconsiderate.
39. She had asked Faku as to where she should report on her return from sick leave. She agreed that she could be moved from George Mbilase as Faku had indicated that there was an HOD position at another school. This was before she had gone on sick leave. She went on sick leave and Faku had informed her of another position at another school. He had indicated that on her return she would have to report to this school for duty. She had called him several times as to where and when she should report for duty at the said school.
40. Faku told her to return to the District Office and she refused as she was an educator and she wanted to go back to teach and not to the district office to make tea.
41. The Respondent humiliated and degraded her. She was investigated and no irregularities were found. It further failed to protect her.
42. The Applicant denied that she had conducted herself in a disgraceful manner two weeks after starting at George Mbilase. She denied that she bumped an educator and or took off her clothing and or rolled her sleeves. On the alleged day she had passed a colleague (Mokwena) on her way to school. Mokwena was walking and she was in her car. She arrived at school and carried on with her usual duties and was shocked when she was called into the office and told of the allegations. This had happened at a time that she was implementing policies and cleaning up. She had found out that Ida was selling sweets and chips at school and was cooking in her class during class time. Further Ida would often be involved in ‘stoop talks’ instead of teaching.
43. She had felt marginalized when the HOD was preferred by the Principal to act in his absence.
44. She denies fabricating the evidence insofar as it relates to the Principal asking Xaba to act.
45. Eric had sent a letter about the Principal’s post to the District Officer wherein he addressed his dissatisfaction with the Principal’s post being re-advertised. The letter was sent during the time that she was assisting Faku with admin work and she asked if she could have a copy and he (Faku) agreed to let her have it. She had not manipulated anyone to obtain it.
46. She denies that she had stated or considered the District Office to be her playground. She further denies swearing at anybody or insulting the Principal. It was all part of the conspiracy to get rid of her by the PS staff and SGB.
47. She found irregularities with the PS (admin and grounds men) staff. Thandi in admin had not deposited school funds and Ntabiseng was using school funds to pay her child’s school fees. The problem started as she had highlighted these problems and refused to align herself with what was going on. Further Ntabiseng had requested that she (Applicant) pay for her daughter’s fees at a private school, which she (Applicant) had refused. She and Ntabiseng were friends and often Ntabiseng would visit her and ask her for things and want her (Applicant) to buy things for her or pay her account. Ntabiseng was the Principal’s girlfriend.
48. She had informed the Principal of Thandi’s actions and she was called in and it was decided that she would pay the monies back. Thereafter Thandi had started calling her names.
49. She denied having requested the SGB to sign a blank cheque.
50. Her grievance was put on hold when it should have been resolved and all she wanted was for the recruitment process to be fair and then if she were not appointed that would have been fine.
51. She had never received the letters in respect of her absenteeism.
52. The leave policy does not need for you to apply for sick leave in advance. It is usually applied for on your return and with the supporting documents. At George Mbilase, Ntabiseng had applied for capped days on behalf of the Principal as he had exhausted his leave days. It was done in his absence.
53. On 15 March 2011 the PS staff had addressed a letter to the District wherein it was alleged that she had said that the ‘Principal has stinky feet and is a cripple’. This letter was written after the Principal had returned from his sick leave. After his return he was treating her (Applicant) badly. She had complained to the IDSO on 4 March 2012 about the manner in which the Principal was treating her. The IDSO had responded within 3 to 4 days and asked them (Principal and Applicant) to work together and she suggested that they meet every morning alone. That had not happened. Her work conditions were not good and therefore she took it up with the department.
54. The IDSO, Modisane addressed the issues in terms of the letter written by the PS staff. They met and she requested that the matter be dealt with internally first. However Ntabiseng, Thandi, Olga and Maria said that they did not want her to sort out the issues but rather the Director. Modisane nevertheless issued an ultimatum for it to be resolved internally. The Principal had called them one by one and again they did not want the matter resolved by him but instead the Director. Maria went to the extent of saying that if she says what the Applicant had said about him someone will die.
55. A third sitting included Labour and Sadtu and the IDSO. Thandi had asked the IDSO to have the Applicant removed. After this meeting the cleaners were satisfied that issues were resolved.
56. She had never said that the ‘Principal had stinky feet’ or called him a ‘cripple’. Olga had said this.
57. It was clear by their actions that they wanted her out. They had unnecessarily escalated an internal matter to the District.
58. Her situation had become intolerable by the Respondent and therefore she had to resign.
59. The first witness for the Applicant was Melissa Mongala (Melissa). She was an SGB member at the time the Applicant was Deputy Principal.
60. In about 2009 the Applicant had acted as Principal as the Principal was hospitalized. At this time the Applicant would call the SGB to witness everything. The Applicant had never requested the SGB to sign blank cheque. It was the Principal who had done so.
61. She was dismissed as a SGB member when she had raised issues about Eric (chairperson) – he had the school laptop with him, he drove the school motor vehicle without a license and met with an accident with it. She also had raised the issue with the District that Eric did not have a child at the school.
62. Olga had said that the Principal was a ‘cripple’ and ‘had stinky feet’ and ‘the school was better when he was not here’. Olga had said this in front of her when she was at the school to sign a cheque. Olga had further said that the Applicant was running the school well.
63. She was told of the blockade but had refused to participate, as she had no problem with the Applicant. Eric and his sister had set up the whole thing and most of the parents involved in the blockade do not have children at George Mbilase. Eric wanted the Applicant out as if she had become principal she would have succeeded in the clean up.
64. The second witness for the Applicant was Nellie Makanya (Nellie). She was a member of the SGB.
65. She had exited prior to the end of her membership. The reason for this was that there were a lot of issues with Eric, the chair of the SGB who did not have a child at George Mbilase. She had addressed Modisane, IDSO about the issues – the laptop, the motor vehicle use and without a driver’s license, etc.
66. There was a change when the Applicant was to take over. They said that the Applicant was ill treating children. She and the Principal did not have a good relationship because she had raised various issues. The Principal and the staff did not like Applicant because she was a straight person.
67. Olga (cleaner) had said that the ‘Principal stinks’ and is a ‘cripple’. It was not the Applicant. She further said that the Applicant was managing the school well and the Principal should not come back. Thandi also made utterances about the Principal and she would do it in front of him. He had said that it was the norm.
68. The third witness for the Applicant was David Anele Faku (Faku). He is an IDSO.
69. He had taken over the school from Modisane in or about June/July 2012.
70. The Applicant was blockaded from the school. He was told that parents came to the school and drove the Applicant out. He had to go to the school to intervene.
71. The Applicant was then taken to the district office. This is normal practice i.e. if there are problems with an educator then he/she is placed at the district office temporarily.
72. In or about June 2013 he was no longer responsible for the school. The Applicant had reported to him whilst at the district office. The Applicant was performing administrative/clerical tasks from about January 2013 when she started to report to him. She had assisted with admissions for grade 1 and 8.
73. There was an investigation and all allegations against the Applicant were unfounded. He met with the SGB around May/June 2013 and informed them that the Applicant would be placed back in her post. The chair, Eric stated that she was not wanted back at the school. An alternative was to place her in another post at Dan Parais as a deputy on a temporary basis until he could sort out the problems at George Mbilase. However this was discussed with the SGB of Dan Parais and Bobby Sello and he has to date not received any feedback. He was not aware that Dan Parais did not take Applicant as they thought that she was problematic.
74. The Applicant’s salary was frozen due to unauthorized absenteeism. The Applicant had applied for leave and it was approved. The usual process is that if an employee is not at work then his/her IDSO is informed of same. He had informed his senior Mr. Nkosi of the Applicant’s leave. The Director had called him in the presence of labour. At this time however he was not her IDSO but he was aware that the Applicant was hospitalized and had informed them accordingly. The doctor had called him and had faxed a note to this effect. The leave forms were given to him but he could not authorize it as he was not the Applicant’s IDSO.
75. The Applicant was depressed and unfit for work from 3 June 2013 to 30 June 2013. The Applicant was to return to work on 1 July 2013. She was then put off from 18 July 2013 to 2 August 2013.
76. The Applicant was still a school-based employee thus she was entitled to her school holidays whilst at the district office.
77. It is alleged that her whereabouts from 1 July 2013 to 1 August 2013 was unknown. The Applicant had submitted medical certificates to him in this respect so he was aware of her whereabouts.
78. The Applicant became depressed around May/June 2013 after she had applied for the Principal’s post and she was not even shortlisted.
79. The first medical certificate submitted was on 17 May 2013. Thereafter she was unfit for work from 1 July 2013 to 2 August 2013. At this time she had reported to Mr. Ngunene. He personally communicated to Ngunene as to the Applicant’s illness as he could not authorize her leave. Further he had handed in all the leave forms to Nkosi (labour). He did not know the specific date however the documents were submitted to the District Director.
80. The Respondent was aware of the Applicant’s whereabouts. However her salary was frozen. He had approached labour in particular Ndaba, and furnished copies of the medical certificates. Ndaba undertook to unfreeze the Applicant’s salary.
81. The relationship started to become intolerable at the school and when the Applicant was not allowed into the school. It deteriorated when she was moved to the district office as she was doing work that she was not qualified to do. She had reached rock bottom when her salary was frozen and she had received a notice in terms of her absenteeism. Her environment was depressing and her health had deteriorated.
82. Although he was not in charge of her at the time that she had taken leave he was aware of her illness and he had alerted the relevant persons and/or departments of same.
83. He did not agree that the documents were submitted only on 30 October 2013. It would appear to have been re-submitted on this date.
Respondent’s Evidence
84. The first witness for the Respondent was Thandi Ngwenya (Thandi). She occupies an admin post at George Mbilase.
85. The Applicant joined the school in about 2000. Initially everybody loved her. However about 3 weeks later the Applicant had tried to run over Ms. Mokwena with her car. The Applicant was un-cooperative in trying to resolve the issue. The Applicant wanted to undress to get ready for a physical fight with Mokwena and there were parents present. She is not aware if the matter was eventually resolved.
86. The Applicant also fought with the Principal. The Principal had met with an accident and was off work. On his return she refused to sign instructions from him and would say that she was not bothered by a limping person and someone with stinking feet.
87. They had complained to the district office about the Applicant and the utterances that she had made to the 6 of them (PS staff) who were signatories to the letter of complaint. The district office sent Modisane to the school to resolve the problem however they wanted the Director to sort the problem so they had requested another meeting. There were a few meetings with the IDSO and labour but nothing was resolved. During these meetings they were called in one by one including the Applicant and the Principal. The Applicant would answer telephone calls during these meetings and she would not switch her cell phone off when asked to do so. The Applicant had further stated that the district office was her playing ground. There were also meetings when SADTU was present and labour. However they felt that the Director should have come to resolve the dispute as they had escalated it to him.
88. She denied that the resolution that she wanted was for the Applicant to be taken out of the school.
89. The second witness for the Respondent was Ntabiseng Lobisa Morotolo (Ntabiseng). She is an administrator at George Mbilase.
90. She worked with the Applicant from 2000. They had a good relationship. They had arguments but would sort out their issues.
91. They had respected the Applicant and listened to her as Deputy Principal.
92. The problems started when the Principal returned to school after been off from work due to an accident. During his absence the Applicant had acted as Principal. The Applicant would make remarks about the Principal been disabled and that he was back to destroy the school. She further had said that he got the post by polishing someone’s shoes. She had further refused to sign the instruction book and or take instructions from the Principal. The Applicant would further say that she took instructions from the IDSO, Modisane.
93. The PS staff had similar complaints and had chosen her to represent them. She did not go to the Principal as she felt that it would make the matter worse.
94. They were advised to write a letter of complaint to the Applicant and give her 5 days to respond. Thereafter to take the matter up with the Principal and if there was still no resolve to escalate the matter to the district. The Applicant was given the letter however she had not responded. They decided to take it up with the IDSO. The IDSO had not responded so they went to the Director.
95. The Director sent the IDSO to resolve the matter. They informed the IDSO that they wanted the Director to personally resolve the matter. The Principal had called to meet with them however she had refused, as she wanted the Director to resolve the issue. The Applicant said that the district office was her playing ground. They had refused to be interviewed by labour without a representative. There were other meetings but they have to date not received any feedback.
96. On a personal level the Applicant was sometimes sympathetic and not at others. The Applicant had offered her a lift to and back from school as she used to take a taxi from a point that was close to the Applicant’s house. The Applicant was once arrested for an argument with a neighbor and called her for help. She had left her child at night to go and sit with the Applicant and support her. The Applicant had commended her for not telling anyone at school about the arrest.
97. She was not bitter towards the Applicant. She denied that she had asked the Applicant to pay for her daughter’s school fees or that she wanted her daughter to stay with the Applicant. She further denied that she had requested the Applicant to pay for her clothing purchases. She denied that this was the reason for writing the letter of compliant. If she had a problem with Applicant she would pull a chair and sit and discuss the problem. She had written the letter to try and resolve the problem in her environment.
98. She denies having an affair with the Principal who was old enough to be her father.
99. Whilst the Applicant had acted as principal there were no problems between the two of them and the PS staff.
100. She had approached the Applicant as a friend however the Applicant had refused to listen to her about the complaint and therefore she had to go to the district office.
101. She denied that she wanted the Applicant out of school. Her relationship with the Applicant had changed when the Applicant was acting as principal.
ANALYSIS OF EVIDENCE AND ARGUMENT
102. The dispute is referred in terms of section 186(1) (e) of the LRA i.e. constructive dismissal. Section 192 of the LRA places the onus on the Applicant to establish that the Respondent’s conduct rendered the continuation of the employment relationship intolerable.
103. The essence of section 186(1) (e) is that whilst the termination of the employment relationship is initiated by the employee, it is induced or provoked by the conduct of the employer. In Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ (LAC) at 985C the test to determine what conduct would be considered to be intolerable was dealt with. One must “look at the employer’s conduct as a whole and determine whether … its effect, judged reasonably and sensibly is such that the employee cannot be expected to put up with it”.
104. The Applicant’s evidence indicates that the employment relationship started to become intolerable when she attempted to eliminate irregularities in the school. It started with the irregularities in the administrative department – the misuse of school funds and the use of school resources for personal gain. The other issues that she had related to the SGB – in particular Eric and that he did not have a child in the school, that he had misused the school motor vehicle and laptop as well as that he used the schools resources to promote his political affiliation. Further she had found educators to be late in attending classes and using teaching time for cooking, and ‘stoop-talks’, etc. The Principal had also treated her in a demeaning manner and took away her powers as Deputy.
105. Her evidence indicates that she engaged the Principal and even went to the extent of lodging a grievance with the district and addressing several letters to them requiring some form of intervention. She was not short listed for the Principal’s post. There was no meaningful response from the Respondent and instead she was ‘blockaded’ and not allowed to enter the school. She was then removed from the schooling environment and placed at the district office to perform an administrative function. She suffered from depression as a result of the Respondent’s treatment and had to be hospitalized and had to take some time off. The district was aware of same however they still froze her salary. The relationship was thus rendered intolerable and she had no choice but to resign.
106. The Respondent on the other hand contends that there was no such intolerability created by it. There were no such irregularities as alleged and that the Applicant was the author of her misfortune. She had insulted parents and the Principal.
107. It would appear from the Applicant’s evidence that from the outset and as early as 2000 when she had moved to George Mbilase there were issues, which had worsened over the years.
108. As early as 2010 the Applicant had addressed letters to the IDSO. On 15 September 2010 she had requested the office of the director to intervene, as the Principal had not wanted her to co-ordinate the LTSM. The IDSO did attend the school in an attempt to resolve the issue and had reiterated that the Applicant should co-ordinate the LTSM however the Principal and the SGB did not adhere to this instruction.
109. The Applicant had also complained of her treatment by the Principal on his return. There was nothing done in this respect. She had complained of rude and negative behaviour towards her in addition to certain of her powers been taken from her.
110. On 26 November 2012 she lodged a grievance relating to the recruitment procedure for the Principal’s post. The recruitment process was stopped however the new one was also flawed and sabotaged by the chairperson of the SGB, Eric.
111. The Respondent led the evidence of 2 witnesses who denied that there were irregularities at the school in the administrative department. Their evidence was contradictory in nature. Beside the contradictions their evidence lacked sense – they had a good relationship with the Applicant despite her been aggressive and wanting to knock a colleague and wanting to undress in front of parents. At one point she was a friend and then she was not. Ntabiseng stated that the Applicant and her would discuss and sort out problems however the Applicant did not want to listen this time around. This version was not put not the Applicant.
112. It was further said that the Applicant considered the District Office to be her playground and that she had only taken instructions from the IDSO and not the Principal.
113. What was clear from their evidence was that they had lodged a grievance against the Applicant and that they were not co-operative when the IDSO had attempted to resolve same. The reason put forth for same was that they wanted the District Director to resolve the dispute and not the IDSO, which is inconsistent with the spirit of resolution. Their evidence was also not clear as to whether the matter was resolved or not. It was stated in vacuum that the matter was not resolved but neither of the witnesses delved into what would have been an appropriate resolve on the issue.
114. The fact that the Applicant was blockaded is testament that there were issues and to a large extent supports her contention that there were various attempts by the SGB and staff to get rid of her. Despite all of these attempts the Applicant continued in her post and had addressed her concerns with the Respondent. It is her allegation that these were not dealt with constructively and there is no evidence to the contrary.
115. The Applicant was blockaded on 5 November 2012 and was requested to report to the district for her own safety therefrom. She continued to report to the district office till her resignation on 11 September 2013. It is worthy to note that the Respondent has no control over the parents, learners and governing body who prevented the Applicant from entering the school and therefore cannot be held responsible for their conduct.
116. The issue of displaced educators (i.e. educators chased away from their school by the community) is a complex issue and it is rare for the Respondent to persuade a community to accept back an educator they have chased away. Sometimes disputes of this nature can be resolved by mediation and therefore the Applicant should have referred the matter to the ELRC in this respect and it is not a matter that can be easily resolved by the Respondent.
117. In terms of the Employment of Educators Act, it is impossible and unlawful for the Respondent to transfer an educator permanently to another school unless the school governing body of that school has recommended the transfer of the educator to that school. Although the Respondent was vague as to what attempts it had made to place the Applicant elsewhere lawfully it was not possible for it to do so unless another governing body wanted to accept the Applicant at their school. In practice, governing bodies do not easily accept educators at their schools who have been chased away by a community at another school because there are always suspicions that such educators have been chased away for a reason. This too is something that the Respondent could not do anything about.
118. The Applicant expressed frustration as she was an educator but was performing administrative duties. The Applicant had stated that she had raised grievances on various issues but they were not dealt with satisfactorily. The outcome of same may have not been satisfactory to her but they were attended to by the Respondent. She could have referred any dispute to the ELRC about her grievances - unpaid salary, one about promotion, one about a transfer, but yet instead of doing that, she simply resigned and then claimed constructive dismissal. Case law has held that while an employee has any reasonable alternative options than resigning, then she cannot succeed with a constructive dismissal dispute if she resigns.
119. The Applicant had stated that the final straw for her was that her salary was frozen and this was after she was removed from the teaching environment under duress, which led to her becoming ill. Whilst the Applicant found herself in distressing circumstances the onus to establish constructive dismissal is a strict one and resignation must be a last resort, which has not being established herein.
120. In the circumstances the Applicant has not established that the Respondent’s conduct rendered continued employment intolerable.
AWARD
I make the following award:
a. Lindiwe Buhle Ngubeni (Applicant) was not constructively dismissed.
I make no order as to costs.
Manisha Singh
ELRC Commissioner
Province: Gauteng
Applicant: Lindiwe Buhle Ngubeni
Respondent: Gauteng Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Venue: ELRC offices
Award Date: 22 December 2014
Arbitrator: Manisha Singh
DETAILS OF HEARING AND REPRESENTATION
1. The Applicant is Lindiwe Buhle Ngubeni (educator). The Respondent is The Department of Education - Gauteng (employer). The hearing was held at the ELRC offices, 111 Commissioner Street Johannesburg on 31 January 2014, 30 September 2014, 1 and 2 October 2014 and 2 December 2014. The parties handed in closing submissions on 18 December 2014.
ISSUE TO BE DECIDED
2. The matter is brought in terms of section 186 (1) (e) of the Labour Relations Act 66 of 1995 – i.e. constructive dismissal. It is therefore to be determined if the Respondent made continued employment intolerable for the Applicant.
BACKGROUND TO THE ISSUE
3. The Applicant was was educator and employed as an HOD at George Mbilase Primary School (GM) in 2000. In 2009 she was promoted to Deputy Principal at the same school.
4. She tendered her resignation on 11 September 2013 on the basis that the employment relationship was rendered intolerbale by the Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s Evidence
5. At the outset of her commencing work at George Mbilase Primary School, her introduction to the other educators was not favourable. It was a ‘non-teaching’ institute.
6. The Principal was Mr. Nhleko (Principal).
7. On her arrival at the school in the mornings she found the office to be locked and educators arrived between 8.00 am and 11.30 am. They would sign in the time of arrival as 7.45 am. She had asked the Principal as to the time that educators arrived and he indicated around 8.00 am.
8. There were many cliques in the school. The chairperson of the SGB, Eric did not have a child at the school.
9. However she had had a good relationship with the Principal initially. Some educators liked her and others just did not.
10. Whilst still very new at the school the Principal had requested that she deposit school fund money and she noticed that monies in the previous months had not been deposited. She had informed the Principal and the responsible administrator (Thandi) was called and requested to pay back the said money.
11. Around this time as well the Principal had informed her of a plot to kill her (by Xaba clique) and he suggested that she should not come to school. She had reported it to the District offices – Benoni.
12. As HOD she had reprimanded educators for standing in the corridors and for late coming. Often remarks were passed however she was achieving her goal of changing the school.
13. She converted the staff room into a library. In 2011 substance abuse by educators was on the increase and so was absenteeism. Throughout the years some educators - Xaba and Miss Mdunusi had ganged up against her. Mdunisi used substances especially on a Monday and a Friday. Their clique was becoming smaller so they got learners and parents to gang up against her.
14. When she was appointed as deputy things got worse. Throughout she had a good relationship with the Principal however this had deteriorated when the IDSO, Darling Tshabalala (Darling) had requested the Principal to follow procedure and allow the Applicant to co-ordinate the LTSM which is responsible for purchasing of books, obtaining quotes from different suppliers and meetings. He however insisted that Mdunisi retain that function and that the Applicant will only sign information that is needed by the district. She had refused. He would then leave her out of LTSM activities. She had complained to the district.
15. The Principal and Xaba, who were enemies joined forces all of a sudden. Prior to her joining the school Xaba had hit the Principal with a fan.
16. The Principal met with an accident and was off sick from about September 2010 to about February 2011. The Principal had requested Xaba to manage the school in his absence and helped her to gain support from the PS staff. However the IDSO said that in the Principal’s absence the deputy is in charge.
17. While acting as the principal she discovered that Eric had received a brand new laptop from the Principal. Thandi Ngwenya (Thandi), the finance administrator used the grade R school fees for her own personal use.
18. The Principal had arrived early from his sick leave. He was meant to return in February 2011 but had returned on 28 January 2011. On his return he had demanded the Blackberry phone from her and refused to do a handover. He then requested the PS staff and the administration office to monitor all of her movements.
19. The grounds men were monitoring her outside in the parking area. The Principal changed the keys to the offices and instructed that all office keys (his office, LTSM room and the library) are to remain with Thandi and that anyone wishing to enter these offices must request her permission. Xaba had attended curriculum workshops and meetings that were meant for deputies.
20. She found that the PS staff had neglected their duties and had spent a lot of time in the office of Xaba and Mdunsi. The Principal and Eric would also join them. Sometimes the Principal sat with them the whole day.
21. Eric had used the school phone for his political activities. The Principal also had requested the PS staff to not clean her office.
22. There were lots of issues between March 2011 and September 2012. She was wrongfully accused of invigilating her own papers. She had reported the matter to the IDSO in March 2011 and they had only taken action in September 2011.
23. In April 2011 the PS staff had conspired against her and wrote a letter in Zulu, which was given to the Principal. It was alleged that whilst the Principal was not at school she had called him names. The District resolved the issue and Sadtu was present as well. The allegations were found to be lies. It was actually a cleaner that called the Principal names.
24. In September 2012 she had lodged a grievance in respect of the way she was treated at the school.
25. In September 2012 the Principal was to retire however he had refused. He wrote several letters to the District to extend his retirement until the appointment of a new Principal. His retirement was not extended and on 2 October 2012 he was asked to leave and he had refused. She was meant to act but was chased away.
26. An SGB meeting was held on 2 November 2011 and she was not informed of it. It was to bid farewell to the Principal and for her to take over. One parent said that if the Principal was leaving then she should go as well. She was called a dog and it was planned that she must be stopped.
27. On 5 November 2012 she was blocked by parents and leaners from entering the school. She found most of the people were actually not from the school but were friends of Eric and his sister who had a child in the school.
28. She was then taken to the district office and was advised that it was for her safety. The district then sent an administrator to act as Principal, which is against policy, as she had to act in that post by virtue of her, been the deputy.
29. The District Director and Mr. Nkosi said that they were to investigate the matter and give her feedback.
30. At the District Office she had to make tea and help with re-locations. She was doing administrative work and she was an educator.
31. Nkosi then informed her that the parents had not wanted her as she had said to them that they ‘stink like their children’. She requested that they furnish the minutes and the register as to when she had said it.
32. On 28 January 2013 the Director had informed her that all allegations were unfounded and therefore she would be taken back to her post. Further that the post of Principal will be re-advertised as the recruitment process was questionable and as the deputy the Applicant should have been short-listed. She lodged a grievance in this respect on 26 November 2012. The District Office acknowledged receipt of it on 28 November 2012.
33. On 28 January 2013 she was requested to report back for duty at GM on 31 January 2013.
34. From February 2013 to May 2013 she was sitting at the District office doing admin work. She was moved to Faku’s (IDSO) office. She was frustrated as she was an educator. There was no communication about developments in respect of her returning to school.
35. Although the District Director had said that the post of principal would be re-advertised, Xaba was appointed in that post on 8 May 2013 and Sello had informed her that the post had not been re-advertised.
36. She found that one thing is said and another is done. She had escalated her grievances to the chief director, Adv. Alison on 21 November 2012. She had also sent a letter to Patrick Selowa about the recruitment procedure. She had requested for assistance and no one responded.
37. The Applicant’s health was affected. She was in and out of hospital for depression. She had the medical certificates in support of her condition. She had communicated with Faku as to her whereabouts and he had requested a letter. She was booked into a psychiatric hospital. She was unfit for work till 2 September 2013. She was booked off from July 2013 to August 2013. She had completed her leave form for temporary incapacity. She had also made application to use her capped leave.
38. Although the district office was aware of her whereabouts they froze her salary for August 2013. Upon resignation the Respondent should have unfroze her salary. They were aware of her whereabouts and she had submitted the paperwork. Her daughter had even called in as to her whereabouts. The Respondent was inconsiderate.
39. She had asked Faku as to where she should report on her return from sick leave. She agreed that she could be moved from George Mbilase as Faku had indicated that there was an HOD position at another school. This was before she had gone on sick leave. She went on sick leave and Faku had informed her of another position at another school. He had indicated that on her return she would have to report to this school for duty. She had called him several times as to where and when she should report for duty at the said school.
40. Faku told her to return to the District Office and she refused as she was an educator and she wanted to go back to teach and not to the district office to make tea.
41. The Respondent humiliated and degraded her. She was investigated and no irregularities were found. It further failed to protect her.
42. The Applicant denied that she had conducted herself in a disgraceful manner two weeks after starting at George Mbilase. She denied that she bumped an educator and or took off her clothing and or rolled her sleeves. On the alleged day she had passed a colleague (Mokwena) on her way to school. Mokwena was walking and she was in her car. She arrived at school and carried on with her usual duties and was shocked when she was called into the office and told of the allegations. This had happened at a time that she was implementing policies and cleaning up. She had found out that Ida was selling sweets and chips at school and was cooking in her class during class time. Further Ida would often be involved in ‘stoop talks’ instead of teaching.
43. She had felt marginalized when the HOD was preferred by the Principal to act in his absence.
44. She denies fabricating the evidence insofar as it relates to the Principal asking Xaba to act.
45. Eric had sent a letter about the Principal’s post to the District Officer wherein he addressed his dissatisfaction with the Principal’s post being re-advertised. The letter was sent during the time that she was assisting Faku with admin work and she asked if she could have a copy and he (Faku) agreed to let her have it. She had not manipulated anyone to obtain it.
46. She denies that she had stated or considered the District Office to be her playground. She further denies swearing at anybody or insulting the Principal. It was all part of the conspiracy to get rid of her by the PS staff and SGB.
47. She found irregularities with the PS (admin and grounds men) staff. Thandi in admin had not deposited school funds and Ntabiseng was using school funds to pay her child’s school fees. The problem started as she had highlighted these problems and refused to align herself with what was going on. Further Ntabiseng had requested that she (Applicant) pay for her daughter’s fees at a private school, which she (Applicant) had refused. She and Ntabiseng were friends and often Ntabiseng would visit her and ask her for things and want her (Applicant) to buy things for her or pay her account. Ntabiseng was the Principal’s girlfriend.
48. She had informed the Principal of Thandi’s actions and she was called in and it was decided that she would pay the monies back. Thereafter Thandi had started calling her names.
49. She denied having requested the SGB to sign a blank cheque.
50. Her grievance was put on hold when it should have been resolved and all she wanted was for the recruitment process to be fair and then if she were not appointed that would have been fine.
51. She had never received the letters in respect of her absenteeism.
52. The leave policy does not need for you to apply for sick leave in advance. It is usually applied for on your return and with the supporting documents. At George Mbilase, Ntabiseng had applied for capped days on behalf of the Principal as he had exhausted his leave days. It was done in his absence.
53. On 15 March 2011 the PS staff had addressed a letter to the District wherein it was alleged that she had said that the ‘Principal has stinky feet and is a cripple’. This letter was written after the Principal had returned from his sick leave. After his return he was treating her (Applicant) badly. She had complained to the IDSO on 4 March 2012 about the manner in which the Principal was treating her. The IDSO had responded within 3 to 4 days and asked them (Principal and Applicant) to work together and she suggested that they meet every morning alone. That had not happened. Her work conditions were not good and therefore she took it up with the department.
54. The IDSO, Modisane addressed the issues in terms of the letter written by the PS staff. They met and she requested that the matter be dealt with internally first. However Ntabiseng, Thandi, Olga and Maria said that they did not want her to sort out the issues but rather the Director. Modisane nevertheless issued an ultimatum for it to be resolved internally. The Principal had called them one by one and again they did not want the matter resolved by him but instead the Director. Maria went to the extent of saying that if she says what the Applicant had said about him someone will die.
55. A third sitting included Labour and Sadtu and the IDSO. Thandi had asked the IDSO to have the Applicant removed. After this meeting the cleaners were satisfied that issues were resolved.
56. She had never said that the ‘Principal had stinky feet’ or called him a ‘cripple’. Olga had said this.
57. It was clear by their actions that they wanted her out. They had unnecessarily escalated an internal matter to the District.
58. Her situation had become intolerable by the Respondent and therefore she had to resign.
59. The first witness for the Applicant was Melissa Mongala (Melissa). She was an SGB member at the time the Applicant was Deputy Principal.
60. In about 2009 the Applicant had acted as Principal as the Principal was hospitalized. At this time the Applicant would call the SGB to witness everything. The Applicant had never requested the SGB to sign blank cheque. It was the Principal who had done so.
61. She was dismissed as a SGB member when she had raised issues about Eric (chairperson) – he had the school laptop with him, he drove the school motor vehicle without a license and met with an accident with it. She also had raised the issue with the District that Eric did not have a child at the school.
62. Olga had said that the Principal was a ‘cripple’ and ‘had stinky feet’ and ‘the school was better when he was not here’. Olga had said this in front of her when she was at the school to sign a cheque. Olga had further said that the Applicant was running the school well.
63. She was told of the blockade but had refused to participate, as she had no problem with the Applicant. Eric and his sister had set up the whole thing and most of the parents involved in the blockade do not have children at George Mbilase. Eric wanted the Applicant out as if she had become principal she would have succeeded in the clean up.
64. The second witness for the Applicant was Nellie Makanya (Nellie). She was a member of the SGB.
65. She had exited prior to the end of her membership. The reason for this was that there were a lot of issues with Eric, the chair of the SGB who did not have a child at George Mbilase. She had addressed Modisane, IDSO about the issues – the laptop, the motor vehicle use and without a driver’s license, etc.
66. There was a change when the Applicant was to take over. They said that the Applicant was ill treating children. She and the Principal did not have a good relationship because she had raised various issues. The Principal and the staff did not like Applicant because she was a straight person.
67. Olga (cleaner) had said that the ‘Principal stinks’ and is a ‘cripple’. It was not the Applicant. She further said that the Applicant was managing the school well and the Principal should not come back. Thandi also made utterances about the Principal and she would do it in front of him. He had said that it was the norm.
68. The third witness for the Applicant was David Anele Faku (Faku). He is an IDSO.
69. He had taken over the school from Modisane in or about June/July 2012.
70. The Applicant was blockaded from the school. He was told that parents came to the school and drove the Applicant out. He had to go to the school to intervene.
71. The Applicant was then taken to the district office. This is normal practice i.e. if there are problems with an educator then he/she is placed at the district office temporarily.
72. In or about June 2013 he was no longer responsible for the school. The Applicant had reported to him whilst at the district office. The Applicant was performing administrative/clerical tasks from about January 2013 when she started to report to him. She had assisted with admissions for grade 1 and 8.
73. There was an investigation and all allegations against the Applicant were unfounded. He met with the SGB around May/June 2013 and informed them that the Applicant would be placed back in her post. The chair, Eric stated that she was not wanted back at the school. An alternative was to place her in another post at Dan Parais as a deputy on a temporary basis until he could sort out the problems at George Mbilase. However this was discussed with the SGB of Dan Parais and Bobby Sello and he has to date not received any feedback. He was not aware that Dan Parais did not take Applicant as they thought that she was problematic.
74. The Applicant’s salary was frozen due to unauthorized absenteeism. The Applicant had applied for leave and it was approved. The usual process is that if an employee is not at work then his/her IDSO is informed of same. He had informed his senior Mr. Nkosi of the Applicant’s leave. The Director had called him in the presence of labour. At this time however he was not her IDSO but he was aware that the Applicant was hospitalized and had informed them accordingly. The doctor had called him and had faxed a note to this effect. The leave forms were given to him but he could not authorize it as he was not the Applicant’s IDSO.
75. The Applicant was depressed and unfit for work from 3 June 2013 to 30 June 2013. The Applicant was to return to work on 1 July 2013. She was then put off from 18 July 2013 to 2 August 2013.
76. The Applicant was still a school-based employee thus she was entitled to her school holidays whilst at the district office.
77. It is alleged that her whereabouts from 1 July 2013 to 1 August 2013 was unknown. The Applicant had submitted medical certificates to him in this respect so he was aware of her whereabouts.
78. The Applicant became depressed around May/June 2013 after she had applied for the Principal’s post and she was not even shortlisted.
79. The first medical certificate submitted was on 17 May 2013. Thereafter she was unfit for work from 1 July 2013 to 2 August 2013. At this time she had reported to Mr. Ngunene. He personally communicated to Ngunene as to the Applicant’s illness as he could not authorize her leave. Further he had handed in all the leave forms to Nkosi (labour). He did not know the specific date however the documents were submitted to the District Director.
80. The Respondent was aware of the Applicant’s whereabouts. However her salary was frozen. He had approached labour in particular Ndaba, and furnished copies of the medical certificates. Ndaba undertook to unfreeze the Applicant’s salary.
81. The relationship started to become intolerable at the school and when the Applicant was not allowed into the school. It deteriorated when she was moved to the district office as she was doing work that she was not qualified to do. She had reached rock bottom when her salary was frozen and she had received a notice in terms of her absenteeism. Her environment was depressing and her health had deteriorated.
82. Although he was not in charge of her at the time that she had taken leave he was aware of her illness and he had alerted the relevant persons and/or departments of same.
83. He did not agree that the documents were submitted only on 30 October 2013. It would appear to have been re-submitted on this date.
Respondent’s Evidence
84. The first witness for the Respondent was Thandi Ngwenya (Thandi). She occupies an admin post at George Mbilase.
85. The Applicant joined the school in about 2000. Initially everybody loved her. However about 3 weeks later the Applicant had tried to run over Ms. Mokwena with her car. The Applicant was un-cooperative in trying to resolve the issue. The Applicant wanted to undress to get ready for a physical fight with Mokwena and there were parents present. She is not aware if the matter was eventually resolved.
86. The Applicant also fought with the Principal. The Principal had met with an accident and was off work. On his return she refused to sign instructions from him and would say that she was not bothered by a limping person and someone with stinking feet.
87. They had complained to the district office about the Applicant and the utterances that she had made to the 6 of them (PS staff) who were signatories to the letter of complaint. The district office sent Modisane to the school to resolve the problem however they wanted the Director to sort the problem so they had requested another meeting. There were a few meetings with the IDSO and labour but nothing was resolved. During these meetings they were called in one by one including the Applicant and the Principal. The Applicant would answer telephone calls during these meetings and she would not switch her cell phone off when asked to do so. The Applicant had further stated that the district office was her playing ground. There were also meetings when SADTU was present and labour. However they felt that the Director should have come to resolve the dispute as they had escalated it to him.
88. She denied that the resolution that she wanted was for the Applicant to be taken out of the school.
89. The second witness for the Respondent was Ntabiseng Lobisa Morotolo (Ntabiseng). She is an administrator at George Mbilase.
90. She worked with the Applicant from 2000. They had a good relationship. They had arguments but would sort out their issues.
91. They had respected the Applicant and listened to her as Deputy Principal.
92. The problems started when the Principal returned to school after been off from work due to an accident. During his absence the Applicant had acted as Principal. The Applicant would make remarks about the Principal been disabled and that he was back to destroy the school. She further had said that he got the post by polishing someone’s shoes. She had further refused to sign the instruction book and or take instructions from the Principal. The Applicant would further say that she took instructions from the IDSO, Modisane.
93. The PS staff had similar complaints and had chosen her to represent them. She did not go to the Principal as she felt that it would make the matter worse.
94. They were advised to write a letter of complaint to the Applicant and give her 5 days to respond. Thereafter to take the matter up with the Principal and if there was still no resolve to escalate the matter to the district. The Applicant was given the letter however she had not responded. They decided to take it up with the IDSO. The IDSO had not responded so they went to the Director.
95. The Director sent the IDSO to resolve the matter. They informed the IDSO that they wanted the Director to personally resolve the matter. The Principal had called to meet with them however she had refused, as she wanted the Director to resolve the issue. The Applicant said that the district office was her playing ground. They had refused to be interviewed by labour without a representative. There were other meetings but they have to date not received any feedback.
96. On a personal level the Applicant was sometimes sympathetic and not at others. The Applicant had offered her a lift to and back from school as she used to take a taxi from a point that was close to the Applicant’s house. The Applicant was once arrested for an argument with a neighbor and called her for help. She had left her child at night to go and sit with the Applicant and support her. The Applicant had commended her for not telling anyone at school about the arrest.
97. She was not bitter towards the Applicant. She denied that she had asked the Applicant to pay for her daughter’s school fees or that she wanted her daughter to stay with the Applicant. She further denied that she had requested the Applicant to pay for her clothing purchases. She denied that this was the reason for writing the letter of compliant. If she had a problem with Applicant she would pull a chair and sit and discuss the problem. She had written the letter to try and resolve the problem in her environment.
98. She denies having an affair with the Principal who was old enough to be her father.
99. Whilst the Applicant had acted as principal there were no problems between the two of them and the PS staff.
100. She had approached the Applicant as a friend however the Applicant had refused to listen to her about the complaint and therefore she had to go to the district office.
101. She denied that she wanted the Applicant out of school. Her relationship with the Applicant had changed when the Applicant was acting as principal.
ANALYSIS OF EVIDENCE AND ARGUMENT
102. The dispute is referred in terms of section 186(1) (e) of the LRA i.e. constructive dismissal. Section 192 of the LRA places the onus on the Applicant to establish that the Respondent’s conduct rendered the continuation of the employment relationship intolerable.
103. The essence of section 186(1) (e) is that whilst the termination of the employment relationship is initiated by the employee, it is induced or provoked by the conduct of the employer. In Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ (LAC) at 985C the test to determine what conduct would be considered to be intolerable was dealt with. One must “look at the employer’s conduct as a whole and determine whether … its effect, judged reasonably and sensibly is such that the employee cannot be expected to put up with it”.
104. The Applicant’s evidence indicates that the employment relationship started to become intolerable when she attempted to eliminate irregularities in the school. It started with the irregularities in the administrative department – the misuse of school funds and the use of school resources for personal gain. The other issues that she had related to the SGB – in particular Eric and that he did not have a child in the school, that he had misused the school motor vehicle and laptop as well as that he used the schools resources to promote his political affiliation. Further she had found educators to be late in attending classes and using teaching time for cooking, and ‘stoop-talks’, etc. The Principal had also treated her in a demeaning manner and took away her powers as Deputy.
105. Her evidence indicates that she engaged the Principal and even went to the extent of lodging a grievance with the district and addressing several letters to them requiring some form of intervention. She was not short listed for the Principal’s post. There was no meaningful response from the Respondent and instead she was ‘blockaded’ and not allowed to enter the school. She was then removed from the schooling environment and placed at the district office to perform an administrative function. She suffered from depression as a result of the Respondent’s treatment and had to be hospitalized and had to take some time off. The district was aware of same however they still froze her salary. The relationship was thus rendered intolerable and she had no choice but to resign.
106. The Respondent on the other hand contends that there was no such intolerability created by it. There were no such irregularities as alleged and that the Applicant was the author of her misfortune. She had insulted parents and the Principal.
107. It would appear from the Applicant’s evidence that from the outset and as early as 2000 when she had moved to George Mbilase there were issues, which had worsened over the years.
108. As early as 2010 the Applicant had addressed letters to the IDSO. On 15 September 2010 she had requested the office of the director to intervene, as the Principal had not wanted her to co-ordinate the LTSM. The IDSO did attend the school in an attempt to resolve the issue and had reiterated that the Applicant should co-ordinate the LTSM however the Principal and the SGB did not adhere to this instruction.
109. The Applicant had also complained of her treatment by the Principal on his return. There was nothing done in this respect. She had complained of rude and negative behaviour towards her in addition to certain of her powers been taken from her.
110. On 26 November 2012 she lodged a grievance relating to the recruitment procedure for the Principal’s post. The recruitment process was stopped however the new one was also flawed and sabotaged by the chairperson of the SGB, Eric.
111. The Respondent led the evidence of 2 witnesses who denied that there were irregularities at the school in the administrative department. Their evidence was contradictory in nature. Beside the contradictions their evidence lacked sense – they had a good relationship with the Applicant despite her been aggressive and wanting to knock a colleague and wanting to undress in front of parents. At one point she was a friend and then she was not. Ntabiseng stated that the Applicant and her would discuss and sort out problems however the Applicant did not want to listen this time around. This version was not put not the Applicant.
112. It was further said that the Applicant considered the District Office to be her playground and that she had only taken instructions from the IDSO and not the Principal.
113. What was clear from their evidence was that they had lodged a grievance against the Applicant and that they were not co-operative when the IDSO had attempted to resolve same. The reason put forth for same was that they wanted the District Director to resolve the dispute and not the IDSO, which is inconsistent with the spirit of resolution. Their evidence was also not clear as to whether the matter was resolved or not. It was stated in vacuum that the matter was not resolved but neither of the witnesses delved into what would have been an appropriate resolve on the issue.
114. The fact that the Applicant was blockaded is testament that there were issues and to a large extent supports her contention that there were various attempts by the SGB and staff to get rid of her. Despite all of these attempts the Applicant continued in her post and had addressed her concerns with the Respondent. It is her allegation that these were not dealt with constructively and there is no evidence to the contrary.
115. The Applicant was blockaded on 5 November 2012 and was requested to report to the district for her own safety therefrom. She continued to report to the district office till her resignation on 11 September 2013. It is worthy to note that the Respondent has no control over the parents, learners and governing body who prevented the Applicant from entering the school and therefore cannot be held responsible for their conduct.
116. The issue of displaced educators (i.e. educators chased away from their school by the community) is a complex issue and it is rare for the Respondent to persuade a community to accept back an educator they have chased away. Sometimes disputes of this nature can be resolved by mediation and therefore the Applicant should have referred the matter to the ELRC in this respect and it is not a matter that can be easily resolved by the Respondent.
117. In terms of the Employment of Educators Act, it is impossible and unlawful for the Respondent to transfer an educator permanently to another school unless the school governing body of that school has recommended the transfer of the educator to that school. Although the Respondent was vague as to what attempts it had made to place the Applicant elsewhere lawfully it was not possible for it to do so unless another governing body wanted to accept the Applicant at their school. In practice, governing bodies do not easily accept educators at their schools who have been chased away by a community at another school because there are always suspicions that such educators have been chased away for a reason. This too is something that the Respondent could not do anything about.
118. The Applicant expressed frustration as she was an educator but was performing administrative duties. The Applicant had stated that she had raised grievances on various issues but they were not dealt with satisfactorily. The outcome of same may have not been satisfactory to her but they were attended to by the Respondent. She could have referred any dispute to the ELRC about her grievances - unpaid salary, one about promotion, one about a transfer, but yet instead of doing that, she simply resigned and then claimed constructive dismissal. Case law has held that while an employee has any reasonable alternative options than resigning, then she cannot succeed with a constructive dismissal dispute if she resigns.
119. The Applicant had stated that the final straw for her was that her salary was frozen and this was after she was removed from the teaching environment under duress, which led to her becoming ill. Whilst the Applicant found herself in distressing circumstances the onus to establish constructive dismissal is a strict one and resignation must be a last resort, which has not being established herein.
120. In the circumstances the Applicant has not established that the Respondent’s conduct rendered continued employment intolerable.
AWARD
I make the following award:
a. Lindiwe Buhle Ngubeni (Applicant) was not constructively dismissed.
I make no order as to costs.
Manisha Singh
ELRC Commissioner