PSES GAAR 003654 NP
PSES GAAR 003654 NP
Award Date:
9 June 1999
Case Number: PSES GAAR 003654 NP
Province: Limpopo
Applicant: MR MJ MAILA
Respondent: DEPARTMENT OF EDUCATION NP
Issue: Unfair Dismissal - Constructive Dismissal
Venue: JOHANNESBURG
Award Date: 9 June 1999
Arbitrator: EBRAHIM PATELIA
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 003654 NP
In the arbitration between:
MR MJ MAILA APPLICANT
and
THE DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR’S AWARD
1 . HEARING AND REPRESENTATION
1.1 For the sake of convenience The Department of Education - Northern Province will be referred to as "the employer". Mr W Maila will be referred to as "the concerned educator" and SADTU will be referred to as “the union”.
1.2 The employer was represented by Mr MM Maseko and Mr AE Mnaga. The concerned educator was represented by Mr NM Molope of the union.
2 . POWERS
2.1 In terms of the Arbitration Agreement as contained in the Education Labour Relations Council Resolution no 7 of 1997, I am required to:
2.1.1 determine the issues in dispute, as reflected below, on the evidence presented to me,
2.1.2 award any sanction that I consider to be fair and/or appropriate to settle this matter.
3 . ISSUES NOT IN DISPUTE
3.1 From the evidence led and the arguments' presented to the arbitration the following issues are common between the parties:
3.1.1 The concerned educator was initially employed as a principal at Mpilo Secondary School. During 1993 the concerned educator experienced certain problems at the school. Accordingly, in a letter dated 01 June 1993 the concerned educator requested a permanent transfer from the school (Annexure 1).
3.1.2 In a letter dated 19 October 1993 (Annexure 2), the concerned educator again requested a permanent transfer to two preferred schools. During 1993 the concerned educator consented to be "seconded" to Mashupje Secondary school also as a principal. The employer confirmed this secondment in a letter dated 12 January 1994.
3.1.3 In a letter dated 16 May 1997 the employer informed the concerned educator that it had been decided to remove him from Mashupje Secondary School. The letter referred to a placement at any school within the Area with immediate effect.
3.1.4 The concerned educator continued to work at Mashupje Secondary School in the seconded capacity. A secondment placement is of a temporary nature. In a letter dated 04 December 1997 the department informed the concerned educator that as of 01 January 1998 he would be placed at Tjatane Primary School with the retention of all benefits. The letter referred to the “de-secondment” of the concerned educator's position at Mashupje Secondary School.
3.1.5 On arrival at Tjatane Primary School the concerned educator assumed the position of teacher. He is currently being paid out of the Mpilo Secondary School pay point. An acting principal has been appointed at Tjatane Primary School.
4 . THE ISSUES IN DISPUTE
4.1 The parties placed the following issues in dispute:
4.1.1 Whether the employer followed the correct procedure when it transferred the concerned educator to Tjatane Primary School?
4.1.2 Whether the concerned educator consented to such transfer?
4.1.3 Whether the School Governing Body (SGB) of Tjatane Primary School agreed to such transfer?
5 . SUMMARY OF THE EMPLOYER'S CASE
5.1 The employer led the oral evidence of Mr Mogashua (Secretary of the SGB of Tjatane Primary School) and Mr Mahlakoane (Circuit Manager of the relevant area).
5.2 The employer argued through their witnesses that the transfer of the concerned educator was according to the procedure and with the consent of the concerned educator and the SGB.
5.3 In particular the employer presented a case to suggest that the concerned educator requested a permanent transfer from Mpilo Secondary School. The secondment to Mashupje and the placement at Tjatane Primary School was in line with this request.
5.4 The concerned educator consented to the transfer to Tjatane School. The employer argued that this is clearly evidenced from the letters he wrote and submitted as evidence.
5.5 The witnesses testified that the SGB was consulted on 14 January 1998, regarding the appointment of' the. concerned educator to Tjatane Primary School. They were informed that he was to take on the role of principal at the school. On the concerned educators arrival he indicated that his appointment was made as a teacher A temporary, principal was subsequently. appointed in response to this situation. The position of principal at Tjatane Primary School is still vacant.
5.6 The concerned educator is still under the pay role of Mpilo Secondary School since he has as yet not assumed a permanent position. Since the matter was placed in dispute, no further administrative action was taken.
5.7 The concerned educator could not have doubted his role to be one of principal at Tjatane Secondary School. The concerned educator was clearly informed that his appointment was with the retention of all benefits.
5.8 The employer concluded that the placement of the concerned educator at Tjatane Primary School was in line with sections 8 and 9 of the Employment of Educators Act 1998.
5.9 The positions of principal at Mpilo Secondary School has been occupied. There is thus no position available for the concerned educator at Mpilo Secondary School.
6 . SUMMARY OF THE CONCERNED EDUCATOR'S CASE
6.1 The union presented its case through the oral evidence of the concerned educator.
6.2 The concerned educator testified that his request to be removed from Mphilo Secondary School was made to allow the employer to undertake an investigation at the school regarding certain allegations. The concerned educator did consent to the secondment Mashupje Secondary School.
6.3 At Mashupje Secondary School the concerned educator was informed that the MEC was aiming to have him removed from the school. On 16 May 1997, the employer had a meeting with the SGB of Mashupje Secondary School to discuss his removal. The concerned educator was brought in to the meeting after 45 minutes to sign an agreement of the removal. The concerned educator refused to sign the letter.
6.4 The employer informed the concerned educator that he would be informed of the school he would be placed in. The employer failed to do this. He was informed that his final day at Mashupje Secondary School would be 21 May 1997. The employer failed to remove him on this date. On 21 May 1997 a new principal was appointed at Mashupje Secondary School. The concerned educator remained at the school.
6.5 On 10 December 1997 the concerned educator testified that he was given a letter by a clerk sent by the Area Manager. The letter (Annexure 4) informed him that he was being placed at Tjatane Primary School with effect from 01 January 1998.
6.6 The concerned educator went to Tjatane Primary School on the advice e of his union. He presented himself as a teacher. The concerned educator testified that the SGB was under the impression that he was to take up the position of principal.
6.7 The concerned educator testified that the position of principal at Tjatane Primary School was advertised and there were applicants for the position. He at no stage applied for the position. His appointment was in conflict with this procedure. Further the SGB of Tjatane did not consent to his appointment.
6.8 The concerned educator testified that the position of principal at Mpilo Secondary School was vacant at present. The concerned educator requested that his position as principal be confirmed since he was never removed permanently from the school.
6.9 The concerned educator testified that his placement to Tjatane Primary School is in violation of sections 8 and 9 of the Employment of Educators Act 1998.
6.10 The concerned educator testified that the reason he did not want to occupy the position at Tjatane Primary School was that the post was advertised. As he was not an applicant for this position, his placement has caused the school community to antagonize him.
7 . FINDINGS
7.1 This matter must be determined on the basis of fairness in the particular circumstances.
7.2 The issue in dispute is whether the correct procedure was adopted in placing the concerned educator at Tjatane Primary School. The Employment of Educators Act 76 of 1998 establishes the legal procedure. In particular the following section is relevant:
TRANSFER OF EDUCATORS
8. (1) Subject 0 the provisions of this Chapter-
(a) the Director- General or the Head of Department may transfer any educator in the service of the relevant department to any post or position in any other department of State with the prior approval of the person in that other department of State having the power to transfer and with the consent of that educator, and
(b) the Director-General may transfer any educator in the service of the Department of Education to any other post in the Department; and
(c) the Head of Department may transfer any educator in the service of the provincial department of education to any other post in that department
(2) No transfer to any post on the educator establishment of a public school or a further education and training institution shall be made unless the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, has been obtained.
(3) The salary and other conditions of service of an educator may not be adversely affected by a transfer under this section without the consent in writing of that educator, except in accordance with the provisions of Chapter 5.
7.3 The placement of the concerned educator to Tjatane Primary School can only be viewed as a transfer. The above provision clearly requires the consent of the concerned educator and a recommendation by the SGB of the school prior to any transfer.
7.4 It is uncontested that the concerned educator did request a permanent transfer from Mpilo Secondary School. It is also undisputed that the concerned educator was placed at Mashupje Secondary School in a temporary capacity. The temporary position was most probably in anticipation of a permanent placement. The issue of whether the concerned educator had an expectation to be returned to Mpilo Secondary School is improbable since he clearly requested a permanent transfer from the school.
7.5 The concerned educator was clearly transferred to Tjatane Primary School without his express consent. The employer at no stage discussed the specific transfer to Tjatane Primary School. The employer did have discussions regarding the possibility of a transfer from Mashupje Secondary School. The abovementioned provision clearly requires the express consent of the educator prior to a transfer.
7.6 In the interest of fairness an employee must be consulted on the exact nature of a transfer.
7.7 It is not sufficient to argue that the concerned educator consented to the transfer as it was in response to his initial request to be removed from Mpilo Secondary School. The concerned educator did not consent to his transfer to Tjatane Primary School.
7.8 The abovementioned provision clearly indicates that the recommendation of the SGB must be taken into consideration prior to a transfer. In this case it is undisputed the employer had discussions with the SGB of Tjatane Secondary School. At no stage did the SGB object to the appointment of the concerned educator as principal. The concerned educator failed to prove any coercion by the employer on the SGB.
7.9 The SGB's letters of concern and request to conduct interviews for the position of principal at Tjatane Primary School were submitted subsequent to the concerned educator refusing to act as principal. This cannot be construed to indicate the SGB's disapproval of his appointment. It is more probable that the uncertainty and uproar at Tjatane Primary School were caused by the concerned educator refusing to take on the position of principal.
7.10 The above provision clearly gives the Head of Department or the Director General the authority to transfer educators to positions that are vacant. The fact that the concerned educator did not apply for this position does not make the appointment invalid. The employer has the right to place the person of its choice in a vacant position. In the case it chose to transfer the concerned educator.
7.11 The fact that the concerned educator is on the pay role of Mpilo Secondary School cannot make him the principal of Mpilo Secondary School. It seems probable that the concerned educator has always been on the pay role of Mpilo Secondary School. This proves an administrative failure and nothing else. The concerned educator failed to lead evidence to establish that the position of principal at Mpilo Secondary School is vacant. The concerned educator's version is thus rejected on this issue.
7.12 I find it improbable that the concerned educator would assume that he was placed at Tjatane Primary School as a teacher. The concerned educator raised no credible evidence to support his alleged understanding of the appointment. The letter of transfer made no mention of an appointment as teacher or principal. The letter of a secondment to Mashupje Secondary School also made no mention of appointment as teacher or principal. The concerned educator however took on the role of principal at Mashupje Secondary School without any confusion.
7.13 Accordingly I find that the employer failed to obtain the consent of the concerned educator prior to transferring him to Tjatane Primary School.
7.14 The concerned educator indicated that he wished to be placed at Mpilo Secondary School. However as described above he raised no evidence to support his testimony that the position at Mpilo Secondary School was vacant. The only option available to the concerned educator from the evidence is the vacant position at Tjatane Primary School.
7.15 However, the concerned educators raised the problem that he cannot continue at Tjatane Primary School as it was the wish of the school community to abide by the democratic process of placements. The school community wished for the interviews to proceed. The concerned educator further indicated his fear of being removed physically from the school.
7.16 The employer indicated a willingness to assist the concerned educator with regard to his concerns and place him in the position of principal at Tjatane Primary School.
7.17 I find that the employer has the authority to transfer educators to vacant positions that are available. In this case the transfer of the concerned educator, but for the failure to obtain his consent, was valid. The concerns of the school community have no legal basis. The, employer has indicated a willingness to protect the concerned educator from any physical violence.
7.18 I find that as far as the employer can ally the concerns of the concerned educator he will suffer no prejudice by remaining at Tjatane Primary School.
8 . AWARD
8.1 Accordingly I find that the concerned educator should continue to be employed in a permanent capacity as principal of Tjatane Primary School.
8.2 The employer to publicise the findings of this award to the Tjatane Primary School teachers and SGB with the express consent of the concerned educator.
8.3 The employer to undertake a relationship building exercise between the school community and the concerned educator. The details of this exercise must be agreed to between the concerned educator and the employer.
8.4 The employer to make available to the concerned educator or any necessary protection from violence or intimidation. The details of the type of security required must be agreed to between the concerned educator and the employer.
Ebrahim patelia
9 June 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES GAAR 003654 NP
APPLICANT MR MJ MAILA
RESPONDENT DEPARTMENT OF EDUCATION NP
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR EBRAHIM PATELIA
DATE OF ARBITRATION 26 MAY 1999
VENUE JOHANNESBURG
REPRESENTATION:
APPLICANT MR NM MOLOPE
RESPONDENT MR MM MASEKO AND MR AE MNAGA
AWARD:
1 Accordingly I find that the concerned educator should continue to be employed in a permanent capacity as principal of Tjatane Primary School.
2 The employer to publicise the findings of this award to the Tjatane Primary School teachers and SGB with the express consent of the concerned educator.
3 The employer to undertake a relationship building exercise between the school community and the concerned educator. The details of this exercise must be agreed to between the concerned educator and the employer.
4 The employer to make available to the concerned educator or any necessary protection from violence or intimidation. The details of the type of security required must be agreed to between the concerned educator and the employer.
DATE OF AWARD 9 JUNE 1999
Province: Limpopo
Applicant: MR MJ MAILA
Respondent: DEPARTMENT OF EDUCATION NP
Issue: Unfair Dismissal - Constructive Dismissal
Venue: JOHANNESBURG
Award Date: 9 June 1999
Arbitrator: EBRAHIM PATELIA
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 003654 NP
In the arbitration between:
MR MJ MAILA APPLICANT
and
THE DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR’S AWARD
1 . HEARING AND REPRESENTATION
1.1 For the sake of convenience The Department of Education - Northern Province will be referred to as "the employer". Mr W Maila will be referred to as "the concerned educator" and SADTU will be referred to as “the union”.
1.2 The employer was represented by Mr MM Maseko and Mr AE Mnaga. The concerned educator was represented by Mr NM Molope of the union.
2 . POWERS
2.1 In terms of the Arbitration Agreement as contained in the Education Labour Relations Council Resolution no 7 of 1997, I am required to:
2.1.1 determine the issues in dispute, as reflected below, on the evidence presented to me,
2.1.2 award any sanction that I consider to be fair and/or appropriate to settle this matter.
3 . ISSUES NOT IN DISPUTE
3.1 From the evidence led and the arguments' presented to the arbitration the following issues are common between the parties:
3.1.1 The concerned educator was initially employed as a principal at Mpilo Secondary School. During 1993 the concerned educator experienced certain problems at the school. Accordingly, in a letter dated 01 June 1993 the concerned educator requested a permanent transfer from the school (Annexure 1).
3.1.2 In a letter dated 19 October 1993 (Annexure 2), the concerned educator again requested a permanent transfer to two preferred schools. During 1993 the concerned educator consented to be "seconded" to Mashupje Secondary school also as a principal. The employer confirmed this secondment in a letter dated 12 January 1994.
3.1.3 In a letter dated 16 May 1997 the employer informed the concerned educator that it had been decided to remove him from Mashupje Secondary School. The letter referred to a placement at any school within the Area with immediate effect.
3.1.4 The concerned educator continued to work at Mashupje Secondary School in the seconded capacity. A secondment placement is of a temporary nature. In a letter dated 04 December 1997 the department informed the concerned educator that as of 01 January 1998 he would be placed at Tjatane Primary School with the retention of all benefits. The letter referred to the “de-secondment” of the concerned educator's position at Mashupje Secondary School.
3.1.5 On arrival at Tjatane Primary School the concerned educator assumed the position of teacher. He is currently being paid out of the Mpilo Secondary School pay point. An acting principal has been appointed at Tjatane Primary School.
4 . THE ISSUES IN DISPUTE
4.1 The parties placed the following issues in dispute:
4.1.1 Whether the employer followed the correct procedure when it transferred the concerned educator to Tjatane Primary School?
4.1.2 Whether the concerned educator consented to such transfer?
4.1.3 Whether the School Governing Body (SGB) of Tjatane Primary School agreed to such transfer?
5 . SUMMARY OF THE EMPLOYER'S CASE
5.1 The employer led the oral evidence of Mr Mogashua (Secretary of the SGB of Tjatane Primary School) and Mr Mahlakoane (Circuit Manager of the relevant area).
5.2 The employer argued through their witnesses that the transfer of the concerned educator was according to the procedure and with the consent of the concerned educator and the SGB.
5.3 In particular the employer presented a case to suggest that the concerned educator requested a permanent transfer from Mpilo Secondary School. The secondment to Mashupje and the placement at Tjatane Primary School was in line with this request.
5.4 The concerned educator consented to the transfer to Tjatane School. The employer argued that this is clearly evidenced from the letters he wrote and submitted as evidence.
5.5 The witnesses testified that the SGB was consulted on 14 January 1998, regarding the appointment of' the. concerned educator to Tjatane Primary School. They were informed that he was to take on the role of principal at the school. On the concerned educators arrival he indicated that his appointment was made as a teacher A temporary, principal was subsequently. appointed in response to this situation. The position of principal at Tjatane Primary School is still vacant.
5.6 The concerned educator is still under the pay role of Mpilo Secondary School since he has as yet not assumed a permanent position. Since the matter was placed in dispute, no further administrative action was taken.
5.7 The concerned educator could not have doubted his role to be one of principal at Tjatane Secondary School. The concerned educator was clearly informed that his appointment was with the retention of all benefits.
5.8 The employer concluded that the placement of the concerned educator at Tjatane Primary School was in line with sections 8 and 9 of the Employment of Educators Act 1998.
5.9 The positions of principal at Mpilo Secondary School has been occupied. There is thus no position available for the concerned educator at Mpilo Secondary School.
6 . SUMMARY OF THE CONCERNED EDUCATOR'S CASE
6.1 The union presented its case through the oral evidence of the concerned educator.
6.2 The concerned educator testified that his request to be removed from Mphilo Secondary School was made to allow the employer to undertake an investigation at the school regarding certain allegations. The concerned educator did consent to the secondment Mashupje Secondary School.
6.3 At Mashupje Secondary School the concerned educator was informed that the MEC was aiming to have him removed from the school. On 16 May 1997, the employer had a meeting with the SGB of Mashupje Secondary School to discuss his removal. The concerned educator was brought in to the meeting after 45 minutes to sign an agreement of the removal. The concerned educator refused to sign the letter.
6.4 The employer informed the concerned educator that he would be informed of the school he would be placed in. The employer failed to do this. He was informed that his final day at Mashupje Secondary School would be 21 May 1997. The employer failed to remove him on this date. On 21 May 1997 a new principal was appointed at Mashupje Secondary School. The concerned educator remained at the school.
6.5 On 10 December 1997 the concerned educator testified that he was given a letter by a clerk sent by the Area Manager. The letter (Annexure 4) informed him that he was being placed at Tjatane Primary School with effect from 01 January 1998.
6.6 The concerned educator went to Tjatane Primary School on the advice e of his union. He presented himself as a teacher. The concerned educator testified that the SGB was under the impression that he was to take up the position of principal.
6.7 The concerned educator testified that the position of principal at Tjatane Primary School was advertised and there were applicants for the position. He at no stage applied for the position. His appointment was in conflict with this procedure. Further the SGB of Tjatane did not consent to his appointment.
6.8 The concerned educator testified that the position of principal at Mpilo Secondary School was vacant at present. The concerned educator requested that his position as principal be confirmed since he was never removed permanently from the school.
6.9 The concerned educator testified that his placement to Tjatane Primary School is in violation of sections 8 and 9 of the Employment of Educators Act 1998.
6.10 The concerned educator testified that the reason he did not want to occupy the position at Tjatane Primary School was that the post was advertised. As he was not an applicant for this position, his placement has caused the school community to antagonize him.
7 . FINDINGS
7.1 This matter must be determined on the basis of fairness in the particular circumstances.
7.2 The issue in dispute is whether the correct procedure was adopted in placing the concerned educator at Tjatane Primary School. The Employment of Educators Act 76 of 1998 establishes the legal procedure. In particular the following section is relevant:
TRANSFER OF EDUCATORS
8. (1) Subject 0 the provisions of this Chapter-
(a) the Director- General or the Head of Department may transfer any educator in the service of the relevant department to any post or position in any other department of State with the prior approval of the person in that other department of State having the power to transfer and with the consent of that educator, and
(b) the Director-General may transfer any educator in the service of the Department of Education to any other post in the Department; and
(c) the Head of Department may transfer any educator in the service of the provincial department of education to any other post in that department
(2) No transfer to any post on the educator establishment of a public school or a further education and training institution shall be made unless the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, has been obtained.
(3) The salary and other conditions of service of an educator may not be adversely affected by a transfer under this section without the consent in writing of that educator, except in accordance with the provisions of Chapter 5.
7.3 The placement of the concerned educator to Tjatane Primary School can only be viewed as a transfer. The above provision clearly requires the consent of the concerned educator and a recommendation by the SGB of the school prior to any transfer.
7.4 It is uncontested that the concerned educator did request a permanent transfer from Mpilo Secondary School. It is also undisputed that the concerned educator was placed at Mashupje Secondary School in a temporary capacity. The temporary position was most probably in anticipation of a permanent placement. The issue of whether the concerned educator had an expectation to be returned to Mpilo Secondary School is improbable since he clearly requested a permanent transfer from the school.
7.5 The concerned educator was clearly transferred to Tjatane Primary School without his express consent. The employer at no stage discussed the specific transfer to Tjatane Primary School. The employer did have discussions regarding the possibility of a transfer from Mashupje Secondary School. The abovementioned provision clearly requires the express consent of the educator prior to a transfer.
7.6 In the interest of fairness an employee must be consulted on the exact nature of a transfer.
7.7 It is not sufficient to argue that the concerned educator consented to the transfer as it was in response to his initial request to be removed from Mpilo Secondary School. The concerned educator did not consent to his transfer to Tjatane Primary School.
7.8 The abovementioned provision clearly indicates that the recommendation of the SGB must be taken into consideration prior to a transfer. In this case it is undisputed the employer had discussions with the SGB of Tjatane Secondary School. At no stage did the SGB object to the appointment of the concerned educator as principal. The concerned educator failed to prove any coercion by the employer on the SGB.
7.9 The SGB's letters of concern and request to conduct interviews for the position of principal at Tjatane Primary School were submitted subsequent to the concerned educator refusing to act as principal. This cannot be construed to indicate the SGB's disapproval of his appointment. It is more probable that the uncertainty and uproar at Tjatane Primary School were caused by the concerned educator refusing to take on the position of principal.
7.10 The above provision clearly gives the Head of Department or the Director General the authority to transfer educators to positions that are vacant. The fact that the concerned educator did not apply for this position does not make the appointment invalid. The employer has the right to place the person of its choice in a vacant position. In the case it chose to transfer the concerned educator.
7.11 The fact that the concerned educator is on the pay role of Mpilo Secondary School cannot make him the principal of Mpilo Secondary School. It seems probable that the concerned educator has always been on the pay role of Mpilo Secondary School. This proves an administrative failure and nothing else. The concerned educator failed to lead evidence to establish that the position of principal at Mpilo Secondary School is vacant. The concerned educator's version is thus rejected on this issue.
7.12 I find it improbable that the concerned educator would assume that he was placed at Tjatane Primary School as a teacher. The concerned educator raised no credible evidence to support his alleged understanding of the appointment. The letter of transfer made no mention of an appointment as teacher or principal. The letter of a secondment to Mashupje Secondary School also made no mention of appointment as teacher or principal. The concerned educator however took on the role of principal at Mashupje Secondary School without any confusion.
7.13 Accordingly I find that the employer failed to obtain the consent of the concerned educator prior to transferring him to Tjatane Primary School.
7.14 The concerned educator indicated that he wished to be placed at Mpilo Secondary School. However as described above he raised no evidence to support his testimony that the position at Mpilo Secondary School was vacant. The only option available to the concerned educator from the evidence is the vacant position at Tjatane Primary School.
7.15 However, the concerned educators raised the problem that he cannot continue at Tjatane Primary School as it was the wish of the school community to abide by the democratic process of placements. The school community wished for the interviews to proceed. The concerned educator further indicated his fear of being removed physically from the school.
7.16 The employer indicated a willingness to assist the concerned educator with regard to his concerns and place him in the position of principal at Tjatane Primary School.
7.17 I find that the employer has the authority to transfer educators to vacant positions that are available. In this case the transfer of the concerned educator, but for the failure to obtain his consent, was valid. The concerns of the school community have no legal basis. The, employer has indicated a willingness to protect the concerned educator from any physical violence.
7.18 I find that as far as the employer can ally the concerns of the concerned educator he will suffer no prejudice by remaining at Tjatane Primary School.
8 . AWARD
8.1 Accordingly I find that the concerned educator should continue to be employed in a permanent capacity as principal of Tjatane Primary School.
8.2 The employer to publicise the findings of this award to the Tjatane Primary School teachers and SGB with the express consent of the concerned educator.
8.3 The employer to undertake a relationship building exercise between the school community and the concerned educator. The details of this exercise must be agreed to between the concerned educator and the employer.
8.4 The employer to make available to the concerned educator or any necessary protection from violence or intimidation. The details of the type of security required must be agreed to between the concerned educator and the employer.
Ebrahim patelia
9 June 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES GAAR 003654 NP
APPLICANT MR MJ MAILA
RESPONDENT DEPARTMENT OF EDUCATION NP
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR EBRAHIM PATELIA
DATE OF ARBITRATION 26 MAY 1999
VENUE JOHANNESBURG
REPRESENTATION:
APPLICANT MR NM MOLOPE
RESPONDENT MR MM MASEKO AND MR AE MNAGA
AWARD:
1 Accordingly I find that the concerned educator should continue to be employed in a permanent capacity as principal of Tjatane Primary School.
2 The employer to publicise the findings of this award to the Tjatane Primary School teachers and SGB with the express consent of the concerned educator.
3 The employer to undertake a relationship building exercise between the school community and the concerned educator. The details of this exercise must be agreed to between the concerned educator and the employer.
4 The employer to make available to the concerned educator or any necessary protection from violence or intimidation. The details of the type of security required must be agreed to between the concerned educator and the employer.
DATE OF AWARD 9 JUNE 1999