ELRC644-20/21 EC
Text
ELRC138 21/22KZN
Text
Award Date:
30 September 2021
Case No. ELRC138 21/22KZN
In the matter between
NATU obo SIBUSISO MAKHUBO Applicant
and
Department of Education: KWA ZULU NATAL Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 2 AUGUST 2021
DATE OF AWARD: 30 SEPTEMBER 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice is conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee
SUMMARY: Whether the decision to declare the Applicant as an excess/ surplus educator was just and compliant with the National Collective Agreement No 4 of 2016.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration process and heard before me over zoom on the 2nd of August 2021. During these proceedings, the Applicant, Mr Sibusiso Makhubo was represented by Mr Njabulo Mtolo of NATU while the Respondent, Department of Education: Kwa Zulu Natal was represented by Ms Lindokuhle Hlophe.
2. The parties confirmed receipt of the notice of set down and there was only one pre-liminary issue that was raised, being an application for the matter to proceed on papers and not on oral submissions.
3. The parties provided a pre-arbitration minute which addressed all the necessary issues. An Application was made by the Applicant to have the matter arbitrated on paper by way of a statement of case in terms of section 18 of the ELRC constitution. The ruling thereof is enclosed herein.
4. The representatives further filed submissions in support of their respective cases.
THE ISSUE IN DISPUTE
4 Firstly I am to determine whether the Application in terms of section of 18 of ELRC Constitution will be permitted or not. Relating to the main Application, I am required to determine whether the Respondent perpetrated an unfair labour practice relating to the decision to declare the Applicant an excess educator.
THE APPLICATION FOR A STATEMENT OF CASE
5. At the commencement of the proceedings, the Applicant raised an application for the proceedings to be conducted by way of a statement of case wherein the parties would make submissions on papers. The basis of the Applicant’s averments in said application were more in relation to the understanding that the issue at hand is a question of law. The latter question of law being described as an interpretation of a collective agreement.
6. The applicant argued that considering the matter pertains less on oral evidence or the requirement thereof, it would be better suited for the matter to proceed in terms of section 18 of the ELRC constitution.
7. The respondent did not oppose the application.
8. A statement of case is defined as a statement of facts and submissions by parties once same have agreed that they do not intend adducing any oral evidence.
9. The parties in this matter had alluded to same both in this Pre-arbitration minute and in this application.
10. Having due regard to the matter at hand subject to the applicable provision, I issued a ruling in favour of the Application.
11. The agreed time frames were that the Applicant file its submissions on the 2nd of August 2021, the Respondent file its submissions on the 16th of August 2021 then the Applicant’s Reply (if any) to be filed by the 24th of August 2021.
THE BACKGROUND TO THE DISPUTE
12. In these proceedings the Applicant referred a dispute relating to the interpretation of a collective agreement bearing reference: Collective Agreement Number 4 of 2016.
13. The Applicant was deemed an excess/surplus educator at Mlondolozi High School, as such he was given a directive reassigning him (by way of transfer) to another school.
14. The Applicant at the time of the incident was fulfilling the role of a Head of Department- Sciences at the abovementioned school.
15. The Applicant challenged the directive and due to the ongoing dispute the proceedings before this honourable council were then constituted.
SURVEY OF EVIDENCE AND ARGUMENT
11. As stated above, the Applicant made an application for these proceedings to be considered by way of a Stated Case. The latter application was not opposed.
12. Upon consideration of the submissions, there are no disputes of facts, however there are disputes of law which require adjudication.
13. Though no witnesses were called to testify, the submissions of the parties shall be considered in relation to their respective cases.
14. The Applicant’s Submissions can be summarized as follows:
14.1 The Respondent is subject to the National Collective Agreement 4 of 2016 , which agreement extends the latter legislation by enacting HRM 61 of 2020 (a governing circular);
14.2 The Respondent is obliged to conduct an assessment before issuing their directive which is the cause of complaint;
14.3 The Respondent failed to conduct the aforementioned asssesement;
14.4 The Respondent failed to apply HRM 61 of 2020 in its decision to issue their directive;
14.5 The official who authorised the transfer acted without the requisite authority.
15. The case of the Respondent can be summarised as follows:
15.1 The applicant is not qualified to teach the FET phase portion of a High School;
15.2 There was a staff audit (Qualification Audit) conducted at the Mlondolozi High School which informed the directive relating to the Applicants transfer.
15.3 The curriculum needs for both Mlondolozi High School and Lingani Primary School substantiate the need to transfer the Applicant.
15.4 The Respondent complied with the collective agreement and HRM 61 of 2020;
15.5 The District director issued the directive relating to the transfer of the Applicant after due consultation with the District Task Team;
16. I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
18. The first premise to work from is assess the process undertaken to determine the decision to transfer the Applicant and whether same was in compliance with the National Collective Agreement.
19. In considering the above, my task is to consider both parties’ submissions in this regard.
20. Paragraph B.6.4 outlines the procedure to be adopted when addressing the issue of a surplus educator when considering an institution’s new post establishment.
21. It is evident that parties remain in dispute of the process undertaken as the Applicant avers that the process was not objective or even compliant. The Respondent’s submission does not address the process and fails to adduce any evidence supporting their averments of having complied with the National Collective read with HRM.
22. It is further evident that the current enrollment of Mlondolozi High School remains within the PPN as envisaged by the Applicant to which the Respondent has failed to prove to the contrary.
23. If we are to consider the principles of substantial compliance then we are to refer to the SCA decision in Weenen Transitional Local Council v Van Dyk which considered the application and interpretation of delegated legislation. The court places that where there isn’t compliance with legislation by an authoritative party, said non compliance cannot be excused (my interpretation).
24. The above principle was also applied in PSA obo Chokoe v ELRC wherein the court in dismissing the Applicant’s Review, commented that wherein the Applicant had formed part of a meeting that was constituted to comply with the applicable collective agreement then the employer cannot be seen not to have complied with the applicable collective agreement (my interpretation).
25. In the premises I make the following award.
AWARD
26. The Respondent has failed to comply with the collective agreement.
27. The decision to declare the Applicant as an excess educator is set aside and the Respondent is directed to withdraw its letter authorizing the transfer of the Applicant upon receipt of this award.
28. The Respondent is directed to undertake a process that is fully compliant with the National Collective Agreement 4 of 2016 in order to execute any transfers.
Yolisa Ndzuta
Panelist: ELRC
In the matter between
NATU obo SIBUSISO MAKHUBO Applicant
and
Department of Education: KWA ZULU NATAL Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 2 AUGUST 2021
DATE OF AWARD: 30 SEPTEMBER 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice is conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee
SUMMARY: Whether the decision to declare the Applicant as an excess/ surplus educator was just and compliant with the National Collective Agreement No 4 of 2016.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration process and heard before me over zoom on the 2nd of August 2021. During these proceedings, the Applicant, Mr Sibusiso Makhubo was represented by Mr Njabulo Mtolo of NATU while the Respondent, Department of Education: Kwa Zulu Natal was represented by Ms Lindokuhle Hlophe.
2. The parties confirmed receipt of the notice of set down and there was only one pre-liminary issue that was raised, being an application for the matter to proceed on papers and not on oral submissions.
3. The parties provided a pre-arbitration minute which addressed all the necessary issues. An Application was made by the Applicant to have the matter arbitrated on paper by way of a statement of case in terms of section 18 of the ELRC constitution. The ruling thereof is enclosed herein.
4. The representatives further filed submissions in support of their respective cases.
THE ISSUE IN DISPUTE
4 Firstly I am to determine whether the Application in terms of section of 18 of ELRC Constitution will be permitted or not. Relating to the main Application, I am required to determine whether the Respondent perpetrated an unfair labour practice relating to the decision to declare the Applicant an excess educator.
THE APPLICATION FOR A STATEMENT OF CASE
5. At the commencement of the proceedings, the Applicant raised an application for the proceedings to be conducted by way of a statement of case wherein the parties would make submissions on papers. The basis of the Applicant’s averments in said application were more in relation to the understanding that the issue at hand is a question of law. The latter question of law being described as an interpretation of a collective agreement.
6. The applicant argued that considering the matter pertains less on oral evidence or the requirement thereof, it would be better suited for the matter to proceed in terms of section 18 of the ELRC constitution.
7. The respondent did not oppose the application.
8. A statement of case is defined as a statement of facts and submissions by parties once same have agreed that they do not intend adducing any oral evidence.
9. The parties in this matter had alluded to same both in this Pre-arbitration minute and in this application.
10. Having due regard to the matter at hand subject to the applicable provision, I issued a ruling in favour of the Application.
11. The agreed time frames were that the Applicant file its submissions on the 2nd of August 2021, the Respondent file its submissions on the 16th of August 2021 then the Applicant’s Reply (if any) to be filed by the 24th of August 2021.
THE BACKGROUND TO THE DISPUTE
12. In these proceedings the Applicant referred a dispute relating to the interpretation of a collective agreement bearing reference: Collective Agreement Number 4 of 2016.
13. The Applicant was deemed an excess/surplus educator at Mlondolozi High School, as such he was given a directive reassigning him (by way of transfer) to another school.
14. The Applicant at the time of the incident was fulfilling the role of a Head of Department- Sciences at the abovementioned school.
15. The Applicant challenged the directive and due to the ongoing dispute the proceedings before this honourable council were then constituted.
SURVEY OF EVIDENCE AND ARGUMENT
11. As stated above, the Applicant made an application for these proceedings to be considered by way of a Stated Case. The latter application was not opposed.
12. Upon consideration of the submissions, there are no disputes of facts, however there are disputes of law which require adjudication.
13. Though no witnesses were called to testify, the submissions of the parties shall be considered in relation to their respective cases.
14. The Applicant’s Submissions can be summarized as follows:
14.1 The Respondent is subject to the National Collective Agreement 4 of 2016 , which agreement extends the latter legislation by enacting HRM 61 of 2020 (a governing circular);
14.2 The Respondent is obliged to conduct an assessment before issuing their directive which is the cause of complaint;
14.3 The Respondent failed to conduct the aforementioned asssesement;
14.4 The Respondent failed to apply HRM 61 of 2020 in its decision to issue their directive;
14.5 The official who authorised the transfer acted without the requisite authority.
15. The case of the Respondent can be summarised as follows:
15.1 The applicant is not qualified to teach the FET phase portion of a High School;
15.2 There was a staff audit (Qualification Audit) conducted at the Mlondolozi High School which informed the directive relating to the Applicants transfer.
15.3 The curriculum needs for both Mlondolozi High School and Lingani Primary School substantiate the need to transfer the Applicant.
15.4 The Respondent complied with the collective agreement and HRM 61 of 2020;
15.5 The District director issued the directive relating to the transfer of the Applicant after due consultation with the District Task Team;
16. I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
18. The first premise to work from is assess the process undertaken to determine the decision to transfer the Applicant and whether same was in compliance with the National Collective Agreement.
19. In considering the above, my task is to consider both parties’ submissions in this regard.
20. Paragraph B.6.4 outlines the procedure to be adopted when addressing the issue of a surplus educator when considering an institution’s new post establishment.
21. It is evident that parties remain in dispute of the process undertaken as the Applicant avers that the process was not objective or even compliant. The Respondent’s submission does not address the process and fails to adduce any evidence supporting their averments of having complied with the National Collective read with HRM.
22. It is further evident that the current enrollment of Mlondolozi High School remains within the PPN as envisaged by the Applicant to which the Respondent has failed to prove to the contrary.
23. If we are to consider the principles of substantial compliance then we are to refer to the SCA decision in Weenen Transitional Local Council v Van Dyk which considered the application and interpretation of delegated legislation. The court places that where there isn’t compliance with legislation by an authoritative party, said non compliance cannot be excused (my interpretation).
24. The above principle was also applied in PSA obo Chokoe v ELRC wherein the court in dismissing the Applicant’s Review, commented that wherein the Applicant had formed part of a meeting that was constituted to comply with the applicable collective agreement then the employer cannot be seen not to have complied with the applicable collective agreement (my interpretation).
25. In the premises I make the following award.
AWARD
26. The Respondent has failed to comply with the collective agreement.
27. The decision to declare the Applicant as an excess educator is set aside and the Respondent is directed to withdraw its letter authorizing the transfer of the Applicant upon receipt of this award.
28. The Respondent is directed to undertake a process that is fully compliant with the National Collective Agreement 4 of 2016 in order to execute any transfers.
Yolisa Ndzuta
Panelist: ELRC