ELRC644-20/21 EC
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PSES993-18/19 KZN
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Award Date:
17 September 2021
Case No PSES993-18/19 KZN
In the matter between
A. Pandaram & T.S. Ntuli Applicants
And
Department of Education KZN Respondent
ARBITRATOR: R. Shanker
DELIVERED: 17 September 2021
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration hearing was held under the auspices of the ELRC. The matter was heard over several days and was finalised on 26 August 2021. The parties thereafter filed written closing arguments.
2. The two applicants, Antony Pandaram and Theophlus Siyabonga Ntuli, appeared on their own and were unrepresented. The respondent, Department of Education KZN, was represented by I. Makhoe.
3. The matter concerns an alleged unfair demotion of the applicants and was referred to the ELRC as an fair labour practice dispute in terms of section 186(2)(a) of the Labour Relations Act, 1995.
ISSUES TO BE DECIDED
4. Whether the conduct of the respondent in demoting the two applicants was unfair, and if so, the appropriate relief to award.
BACKGROUND TO DISPUTE
5. This dispute was previously arbitrated by another commissioner who recused herself for various reasons. The matter before me commenced afresh and the conduct of the parties during that previous process is of no relevance and is therefore not dealt with in this award. There were also lots of side issues raised by the parties during the arbitration process. As pointed out to the parties at the commencement of this hearing, I will focus only on the crisp issues of whether, in terms of the Labour Relations Act, the demotion of the applicants was procedurally and substantively unfair.
6. The applicants were employed as educators since 1996/1997 and both held the position of Departmental Head prior to their demotion.
7. It is the respondent’s version that for the 2016 school year, some learners that were supposed to be progressed were not progressed and vice-versa thereby bringing the school into disrepute. Eight employees that were considered part of the School Management Team (Principal, Deputy Principal and Department Heads which included the applicants), were charged as a group with the following misconduct:
Charge 1: During or about November 2016 at or near Thornwood Secondary School, you wrongfully and unlawfully engaged in the misconduct in that you disregarded the national policy on progression and promotion, by falsifying schedules that were handed to the Department of Education, thereby contravening section 18 (1)(aa) of the Act.
Alternatively: During or about November 2016, at or near Thornwood Secondary School, you failed to exercise due control over the work of educators, mark sheet and administrative responsibilities of staff, thereby transgressing section 18 (1)(a) of the Act read with item 3.2.5 of the PAM.
8. It is common cause that, of the eight employees mentioned above, three (3) were acquitted of the above charges for various reasons. Three (3) pleaded guilty and received a sanction of two (2) months suspension without pay which sanction was suspended for a period of three (3) years. The applicants in this matter did not want to plead guilty to the above charges and were invited to attend disciplinary hearings.
9. At their disciplinary hearings, the applicants were charged with Charge 1 as set out above and were also charged with the following additional charges:
Charge 2: You contravened section 18 (1) (i) of the Act in one or more of the following manner described hereunder:
2.1 On or about 02 February 2017, at or near Hammersdale Resource Centre , you failed to carry out a lawful instruction without just or reasonable cause by failing and/or refusing to attend a meeting convened by Mr M R Mchunu regarding strategies on curriculum monitoring coverage.
2.2 From 17 to 19 February 2017, at or near Dokkies, you failed and/or refused to attend a workshop convened by the District Curriculum Management Team.
2.3 On or about 24 to 26 February 2017, at or near Dokkies, you failed to carry out a lawful instruction without just or reasonable cause by failing and/or refusing to attend a workshop on toolkit for SMT on curriculum management;
Charge 3: On or about 11 March 2017, at or near Thornwood Secondary School, displayed disrespect and demonstrated insolent behaviour towards Mr M Makhanya in that you wrongfully and unlawfully denied him an opportunity to present the reason for his visit at the aforesaid school.
10. The applicants were found guilty of committing the misconduct as set out in Charges 1 and 2 and the respondent imposed a sanction of one month suspension without pay. The applicants appealed against the outcome of the disciplinary enquiry to the MEC as they maintained that they were not guilty of the misconduct. The outcome of the appeal was that both applicants were demoted with effect from 01 March 2019. The applicants subsequently referred the dispute to the ELRC for determination alleging that their demotion was procedurally and substantively unfair.
11. The main charge in Charge 1 was withdrawn for the purpose of this arbitration hearing and only the alternative charge to Charge 1 is pursued. The applicants were found not guilty of Charge 3 at the internal disciplinary hearing.
12. As relief, the applicants requested that they the demotion be lifted and that they be restored to their posts of Department Heads with retrospective effect and without any loss of salary and benefits. In addition, they requested compensation for pain and humiliation.
13. Both the applicants testified in support of their version and submitted a bundle of documents marked Bundle “A”. The respondent called one (1) witness to testify in support of its version and submitted a bundle of documents marked Bundle “B”. During the process, the applicants submitted Bundle “C” and “D” which contains calculations of their loss of income as a result of their demotion.
SURVEY OF EVIDENCE AND ARGUMENT
14. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of evidence on issues in dispute deemed necessary for the analysis that follows. All relevant evidence and arguments were considered prior to drafting this award.
15. Charge 1: Only the alternative charge was pursued. Specifically, the parties were to focus their evidence on whether the applicants (in terms of PAM: 3.2.5) had the responsibility and had failed:
15.1. to control the work of educators,
15.2. to control the mark sheets, and
15.3. to control the administrative responsibilities of staff, ie to check if the marks and mark sheets correspond.
16. It was agreed that, after examinations are completed, the educator is responsible for marking and compiling a mark sheet for each subject they teach. The mark sheet is then sent to Department Heads to be moderated. It was not in dispute that the applicants performed the functions of educators and also as moderators in their capacity as Department Head. Once moderated, the mark sheets will find its way to the data base – South African Schools Administration System (SASAMS). Schedules are thereafter compiled and sent to the circuit office.
17. It is common cause that the respondent did not have the original schedules. Only draft schedules were available at this arbitration hearing.
18. In summary, both applicants disputed that they had committed any misconduct with regard to the alternate charge. They were not aware of any learners that were supposed to be progressed but were not progressed and vice-versa and it was not their responsibility to progress learners. As Department Heads, they did not control the mark sheets of educators and they were not responsible for the schedules that were sent to the District Office.
19. Pandaram testified that he performs the functions of a teacher as well as a Department Head. Department Heads do not control mark sheets. Each teacher controls his/her own mark sheets. As a teacher he, together with other teachers, will mark scripts and record the marks on a mark sheet for the subjects they teach. In this regard, he performs this function as a teacher and not as a Department Head.
20. As a Department Head, he moderates marks. Once marks are recorded, the teacher will bring the scripts, a memo and the mark sheets to him for moderation. He takes a sample of about 10% of the scripts. He marks and checks calculations and recordings. Once that is done, he appends his signature, makes photocopies and hands the originals back to the teacher.
21. Once the teacher receives the documents back, the teacher will log the marks on SASAMS by using the teacher’s own login and password. The teacher was therefore responsible for mark sheets.
22. He is unable to check what marks the teacher puts onto SASAMS. He was not aware of any incorrect marks or any marks that were changed on the system. Had he become aware of such, he would have reported it to the Principal who is responsible for disciplining teachers. The principal and secretary has an admin password and can check the marks entered.
23. Teachers are expected to keep current records of learners that were progressed. Teachers teach about five (5) classes with about 200 learners for which he/she is responsible. As a Department Head, he controls five teachers which would be about 1 000 learners. It would be difficult for him to be responsible for all those learners in addition to his normal teaching functions. He spends 85% of his time performing Level 2 teaching functions and cannot perform the functions of a Deputy Principal or Principal. Department Heads control curriculum, annual teacher plans, etc. He does teaching and spends 5% of his time doing other things like moderation.
24. In terms of the SA Schools Act, the Principal is responsible for the safe keeping of all school records. The Principal is also responsible for staff and for managing and guiding teachers with regard to policy and legislation. He never saw the schedules because his name was not on the document. He is not entitled to see the schedules unless instructed by the Principal. The schedules are confidential and cannot be allowed to float around the school. He is not involved in promoting learners. He is a Department Head because he is a good teacher.
25. Ntuli added that he was not involved in the progression of learners and it was not part of his job responsibilities. There are normally about 10 draft schedules done before the final schedule was submitted. The document presented by the respondent was only a draft schedule and not a final schedule.
26. Sibososo Kheswa, the District Director for the Pinetown District, testified for the respondent. The school was an underperforming school and he visited the school to establish how many learners had been progressed the previous year (2016).
27. He requested the progression schedules from the Principal but could not get it. The draft schedules in Bundle B were obtained from the District office. Those were the only schedules that they gave him. He agreed that the draft schedules were not signed. He did not know who submitted the draft schedules to the District office. The schedules were incomplete and there were inconsistences, example the format at page 1 was different to the format at page 7 of Bundle A. He met with the SMT at school and also called the SMT members to a meeting in his office to explain the inconsistencies.
28. After the meeting, he wrote letters to each SMT member individually to respond to page 57 of Bundle A – Intention to institute Disciplinary Action Against Yourself. He agreed that the applicants were given one day to respond but maintained that the applicants didn’t request further time. Both the applicants responded. He did not have time to go through all the responses but saw that the matter had to be taken further. The documents were given to Employee Relations and they had to evaluate and charge employees if necessary. It was not his responsibility and function to charge the applicants. He did not conduct an investigation because there was nothing to investigate and the letter at P57 (mentioned above) preceded the disciplinary hearing.
29. He stated that the applicants were part of SMT and were responsible for the filling in and the management of schedules. The SMT leads the process. He disagreed that the applicants were not responsible for the mark sheets because mark sheets develop the schedule.
30. He was not aware of how marks are entered on SASAMS at the school. He could not comment on the roles of the Principal and SMT. He could not point to any document or policy or procedures that confirmed his view that the applicants were responsible for the development of schedules. He agreed that the teacher, the principal and EDO normally signed the schedules. He agreed that the persons that approved the schedules were responsible for checking and submitting the schedules. He did not know what disciplinary action the 3rd signatory took against the 2nd signatory and what disciplinary action the 2nd signatory took against the 1st signatory but he took disciplinary action against the 3rd signatory.
31. He agreed that the applicants were not part of the approval team and did not sign the document. He could not comment on the duties of the SMT members and held that everyone is an educator and must do other work. He was not sure of the job descriptions of the applicants but maintained that the schedules were a collective effort. He did not read their job descriptions as he is the director and he directs. He agreed that the principal managers the school.
32. With regard to the other members on the SMT, he maintained that they had owned up as to what they had done wrong and their behaviour was corrected. He did not know why the principle of the school was not charged alone. He maintained that he was not at school and could not answer as to which stage of the development of schedules for which blame could be laid on the applicants. He maintained that he was not a specialist and didn’t have the details of what was done or not done on the schedules. He maintained that teachers were not charged because the department was not looking at mark sheets but at schedules for which SMT was responsible.
33. He could make no comment as to whether the demotion of the applicants were fair but held that the SMT members were responsible for the schedules.
34. Charge 2.1: It is common cause that there was a verbal invite by the principal to attend a meeting on 02 February 2017 at an external venue. The applicants did not attend the meeting. There were some educators that tendered apologies and did not attend the meeting. Those educators that tendered their apology were not disciplined.
35. Pandaram testified that he could not remember receiving the verbal request to attend the meeting. He in any event maintained that the meeting was not a lawful meeting as it was scheduled during school hours and a verbal instruction was given. The meeting was for professional development and in terms of the PAM document, such meetings must be held outside of the school day. Verbal instructions are accepted for them to attend meetings if they don’t have to leave the school premises. In this case, the meeting was at an external venue and the instruction had to be in writing. It is mandatory to complete leave forms if they are absent from school.
36. The meeting was a performance related meeting and normally educators that are available attends. About five (5) such meetings were held over the last seven years. He attended about 2 or 3 of those meetings over that period. He was not charged for not attending those of other meetings.
37. Ntuli testified that he worked with Pandaram for about 10 years. They would attend some meetings and not all. He was not previously charged for not attending meetings or workshops. With regard to the meeting on 02 February, he was only informed on the morning of the meeting at 09:00. When he questioned the Principal as to the start time, he was informed that “it starts now”. At that stage he was still at school teaching and was under lots of pressure. He requested permission from the Principal not to attend and the Principal informed him that he may attend when he is available. To him, it therefore meant that the meeting was not mandatory and that he did not have to attend the meeting on the day. It was only important for the school to be represented at the meeting.
38. Charge 2.2 & 2.3: It is common cause that a workshop was scheduled for 17 - 19 February 2017. A repeat workshop was held on 24 - 26 February 2017 for those that were unable to attend the first workshop on 17 February. The parties agreed that the charges be dealt with as one charge as the applicants could not have been found guilty of both Charge 2.2 and 2.3. Both the workshops commenced on a Friday and continued into the weekend. The applicants did not attend a workshop on either of those dates.
39. Pandaram testified that the first day of the workshops (Fridays) were school days and the workshop were, therefore, also unlawful for reason mentioned above. In terms of the PAM document, the school was also required to give one (1) term notice of workshops to be conducted outside of school hours. This was not done in this instance.
40. He did not receive a written notice to attend the workshop on 17 February 2017. It would have been difficult for him to attend such a workshop if a verbal notice was issued without any details of where he was going to stay, etc.
41. With regard to the workshop on 24 February 2017, when he came to school on the Monday after the 17th workshop, the principal informed him that he was questioned as to where Pandaram was and was instructed to issue Pandaram with a letter in writing to attend the workshop on 24 February. He received a letter dated 20 February 2017 from the Principal for the 24 February workshop. The letter stated “you are requested” and did not make it mandatory to attend.
42. He replied to the letter on the same day requesting further details in order to make an informed decision but did not receive a reply. He wanted to attend the workshop but the lack of information prevented him from doing so. He had purchased a new house and was scheduled to move in during that weekend. He needed the information in order to accommodate both the workshop and the relocation. He was of the view that the workshops in this instance was to utilise excess financial year-end funds.
43. Ntuli testified that the Principal told him on 16 February 2017 that there was a possible workshop over the weekend on 17 – 19 February and that someone will phone him to provide details of the venue, accommodation and the programme. No one called him. He realised on 20 February that the workshop took place as the Principal informed him that he was questioned by the district director about his non-attendance.
44. He was not able to attend the workshop commencing on 24 February and wrote a letter of apology (page 19 of Bundle B). No one responded to his letter and he took it that his apology was accepted. He only learnt that it wasn’t when he was charged a year later. He was unable to attend due to a Zulu family function on that Saturday.
45. Consistent application of discipline: With regard to Charge 1 - alternate charge, Pandaram testified that teachers and Principal signed schedules but they were not charged or investigated. Three Department Heads (SADTU members) that pleaded guilty were given a suspended sanction. Another Head of Department, Malinga, was acquitted without an investigation.
46. With regard to Charge 2, Pandaram stated that he is aware of many educators that did not attend meetings and workshops and were not disciplined. Attendance registers are official records of attendance and shows who were present and who were not. He referred specifically to the workshops that commenced on 17 February 2017 and 24 February 2017. Educators were required to attend one of those workshops. Attendance registers for 17 February 2017 is as per pages 79 to 88 of Bundle A. Attendance registers for 24 February 2017 is as per pages 89 to 95 of Bundle A. He provided a list of educators that did not attend either of those workshops, example Page 80, Numbers 18 and 20 – they didn’t attend the first workshop and their names did not appear on the attendance register for the second workshop. Other similar examples are as per the following pages of Bundle A:
46.1. Page 81 – Number 26
46.2. Page 81 – Number 32 & 35
46.3. Page 83 – Number 49
46.4. Page 84 – Number 64
46.5. Page 85 – Number 81, 83 & 84
46.6. Page 86 – Number 90, 96 & 99
46.7. Page 87 – Number 102, 103, 104, 105, 107
47. He was not aware of them tendering any apology for their non-attendance and they were not disciplined.
48. At pages 343 – 344 (Bundle A) are surrounding and neighbouring schools. None of the educators from those schools attended. Historically, no one was charged for not attending. He attended a compulsory meeting in 2019 and kept a copy of the attendance register. Some educators did not attend that meeting and were not disciplined. At page 241 of Bundle A are school that were invited to attend – seven (7) schools did not attend and none of those educators were charged or disciplined.
49. Ntuli testified that there were other educators that did not attend the meeting on 02 February and they were not disciplined, example Malinga and Dladla who he saw at the car park that day.
50. The Appeal Process and MEC Decision to Demote the Applicants: The parties agreed that:
50.1. The applicants appealed the outcome of the disciplinary hearing.
50.2. The respondent did not appeal the outcome of the disciplinary hearing or sanction issued against the applicants.
50.3. In terms of procedure, the respondent does not have an opportunity to appeal against the sanction.
50.4. The decision to demote the applicants was decided on paper based on the disciplinary hearing records.
50.5. There was no appeal hearing conducted.
50.6. The applicants were not given an opportunity to make oral or written submissions with regard to the decision to demote them.
50.7. The applicants, in writing, requested reasons for their demotion but did not get a response.
50.8. The applicants were not informed that the demotion was an alternative to dismissal.
50.9. The applicants were not informed that a possible consequence of appealing would be that a more severe sanction could be imposed.
50.10. The applicants were not requested to provide reasons why they should not be demoted.
51. Pandaram testified that the MEC was supposed to enquire from him as to why a decision of demotion should not be taken.
52. He complained before and after the disciplinary hearing, including a letter to the President of SA and that may be the reason why they were demoted.
53. Procedural Fairness: The applicants testified that they were not given a fair opportunity to present their versions at the disciplinary hearing as the charges were vague and not explained to them. They understood the charges for the first time at this arbitration process. They also testified that the process followed by the MEC in taking a decision to demote them was unfair.
54. Respondent’s evidence: Apart from the evidence of Kheswa in relation to Charge 1, the respondent did not call any witnesses to support its version in relation to Charge 2, the demotion, allegations of inconsistency and procedural fairness.
55. Argument by the parties: - Both parties submitted written closing arguments which were considered in drafting this award.
ANALYSIS OF EVIDENCE AND ARGUMENTS
56. In terms of section 186(2)(a) of the Labour Relations Act, an unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee.
57. It is not in dispute that the applicants, Pandaram and Ntuli, were demoted by the respondent for allegedly committing certain acts of misconduct. The evidence of the parties were lengthy and in my analysis, I have only focused on a few key aspects that were necessary in making my findings. All the evidence was, however, taken into account in determining whether the demotion of the applicants was unfair.
58. The applicants challenged the procedural and substantive fairness of their demotion. I considered the applicants to be reliable witnesses and their versions to be probable. I accept the applicants’ version, as a whole, to be more probable than the version advanced by the respondent given the lack of evidence to support the respondent’s version on the key issues in dispute.
59. On Charge 1 – the alternate charge, I prefer the applicants’ version that they did not commit any misconduct and that the respondent has acted inconsistently in the implementation of discipline. I find that, as Department Heads (not teachers), they were not responsible for the mark sheets, the recording of the marks of other teachers on SASAMS and that they did not play any part in the development, checking, approval or submitting of the schedules. With specific regard to the development of the schedules, I find that the applicants, as Department Heads, had no control over educators.
60. The respondent led the evidence of only one witness, Kheswa. He merely expressed a general view that the applicants, as part of the SMT, ought to be held responsible for the development of schedules. He was unable to substantiate his view with any solid evidence in terms of legislation, policies, procedures, job descriptions, etc. He was not in a position to rebut the applicants’ version as he didn’t know who and how the schedules were developed in schools or what was specifically wrong with the schedules apart from some formatting issues in the schedules. This was the only aspect that he could point to that was wrong in the schedules and he failed to draw a link between the inconsistent formatting in the schedules and the incorrect progression of learners or why/how this had constituted a misconduct serious enough to warrant any form of discipline.
61. I also accept the applicants’ version that draft schedules that were presented by the respondent cannot be relied on for its accuracy as there are many draft schedules compiled and corrected before the final (correct) schedules are submitted. In the absence of final schedules that were properly signed off, I cannot conclude that there was anything wrong with the 2016 schedules. There was also no evidence that some learners that were supposed to be progressed were not progressed and vice-versa or that the applicants had in any way brought the school into disrepute, which was the respondent’s initial reason for disciplining the applicants.
62. I also find that the respondent acted inconsistently in disciplining the applicants in relation to this charge. If the applicants were to be held accountable for the schedules, there was no evidence or explanation from the respondent as to why other persons that were equally or more responsible for the development of schedules, were not disciplined.
63. On Charge 2 (2.1, 2.2 and 2.3), I prefer the applicants’ version that they did not commit any misconduct and that the respondent has acted inconsistently in the implementation of discipline. The respondent did not call any witnesses to dispute or rebut the applicants’ evidence in relation to this charge.
64. I accept the version of the applicants, as set out in their evidence, as probable. I find that the meeting/workshop(s) in question were very poorly arranged and without timeous and proper notice to the applicants. There was also a lack of necessary details and important information about the workshops considering that it was held over weekends. The respondent also failed to consider and respond to the submissions made by the applicants as set out in their evidence.
65. I am convinced that attendance at the meeting/workshop were not mandatory and that it was no different to any previous meeting/workshop with regard to the necessity to attend. I accept that the applicants did not attend some previous meetings/workshops and were not disciplined. I accept that other educators did not attend this particular meeting/workshop and were not disciplined. I therefore find that the respondent acted inconsistently in disciplining staff and that the applicants should not have been disciplined in relation to Charge 2.
66. Having regard to the above and the evidence as a whole, I find that the applicants did not commit the misconduct for which they were charged. Further, having regard to the evidence and the common cause facts, I find that the conduct of the respondent in implementing a more severe sanction at the appeal stage, was unfair. The respondent failed to dispute the applicants’ evidence that there was no legal basis for the demotion. There was simply no explanation from or reasons provided by the respondent as to why it had taken a decision to demote the applicants at the appeal stage.
67. I find, therefore, that the demotion of the applicants was substantively unfair.
68. I also find that the demotion of the applicants was procedurally unfair both with regard to the disciplinary hearing process as well as the appeal process. I accept the undisputed version of the applicants that the charges were not made clear to them at the disciplinary hearing and that they were therefore not given a fair opportunity to present a version in response to the charges. I accept that the respondent had taken a unilateral decision to demote the applicants as it was not disputed that the applicants were not consulted or given an opportunity to present a version as to why a more severe sanction should not have be taken against them.
69. In conclusion, I find that the conduct of the respondent in implementing the initial sanction of one month suspension without pay and thereafter demoting the applicants on appeal, was procedurally and substantively unfair.
70. As relief, the applicants requested that the demotion is lifted and that they be returned to their positions as Department Heads with retrospective effect to the date of demotion – 01 March 2019. Given the above findings, I have no hesitation in granting the said relief. As a result of the retrospective effect thereof, Pandaram is entitled to an amount of R71 959.95 and Ntuli to an amount of R71 456.73. The said amounts are in respect of salaries and bonuses that were deducted/not paid to the applicants as a result of their demotion and is for the period 01 March 2019 to 30 September 2021. The respondent was given an opportunity to oppose the said figures but failed to do so as at the date of this award.
71. In addition to the demotion being lifted and them being paid all moneys retrospectively deducted as a result of the demotion, the applicants claimed compensation for damages in respect of pain and humiliation they suffered as a result of their demotion. I considered the arguments of the applicant in this regard, however, I am of the view that fairness in terms of the Labour Relations Act requires that, where the conduct of an employer is found to be unfair, an employee be placed or restored back to the position that he/she would have been in had it not been for such unfair conduct OR to order compensation. I cannot do both in instances where there are no actual losses by the applicants. In this instance, the applicants have been restored to the positions on terms and conditions that they would have been on had it not been for the demotion and without any loss of salary or benefits as a result thereof. There is no provision in the said Act to go beyond that or to order compensation in addition to what I have awarded. I therefore cannot award compensation as claimed by the applicants.
AWARD
72. In the circumstances I make the following award:
72.1. The demotion of the applicants, Antony Pandaram and Theophlus Siyabonga Ntuli, effected on 01 March 2021, is set aside.
72.2. The respondent, Department of Education – KZN, is ordered to uplift the demotion of the applicants by no later than 30 September 2021 and restore the applicants to the positions of Department Heads on salaries and benefits that they would have been on had it not been for the demotion.
72.3. The respondent is ordered to pay Antony Pandaram an amount of R71 959.95 and Theophlus Siyabonga Ntuli an amount of R71 456.73 within 30 days of being notified of this award.
72.4. There is no order as to costs.
Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal
In the matter between
A. Pandaram & T.S. Ntuli Applicants
And
Department of Education KZN Respondent
ARBITRATOR: R. Shanker
DELIVERED: 17 September 2021
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration hearing was held under the auspices of the ELRC. The matter was heard over several days and was finalised on 26 August 2021. The parties thereafter filed written closing arguments.
2. The two applicants, Antony Pandaram and Theophlus Siyabonga Ntuli, appeared on their own and were unrepresented. The respondent, Department of Education KZN, was represented by I. Makhoe.
3. The matter concerns an alleged unfair demotion of the applicants and was referred to the ELRC as an fair labour practice dispute in terms of section 186(2)(a) of the Labour Relations Act, 1995.
ISSUES TO BE DECIDED
4. Whether the conduct of the respondent in demoting the two applicants was unfair, and if so, the appropriate relief to award.
BACKGROUND TO DISPUTE
5. This dispute was previously arbitrated by another commissioner who recused herself for various reasons. The matter before me commenced afresh and the conduct of the parties during that previous process is of no relevance and is therefore not dealt with in this award. There were also lots of side issues raised by the parties during the arbitration process. As pointed out to the parties at the commencement of this hearing, I will focus only on the crisp issues of whether, in terms of the Labour Relations Act, the demotion of the applicants was procedurally and substantively unfair.
6. The applicants were employed as educators since 1996/1997 and both held the position of Departmental Head prior to their demotion.
7. It is the respondent’s version that for the 2016 school year, some learners that were supposed to be progressed were not progressed and vice-versa thereby bringing the school into disrepute. Eight employees that were considered part of the School Management Team (Principal, Deputy Principal and Department Heads which included the applicants), were charged as a group with the following misconduct:
Charge 1: During or about November 2016 at or near Thornwood Secondary School, you wrongfully and unlawfully engaged in the misconduct in that you disregarded the national policy on progression and promotion, by falsifying schedules that were handed to the Department of Education, thereby contravening section 18 (1)(aa) of the Act.
Alternatively: During or about November 2016, at or near Thornwood Secondary School, you failed to exercise due control over the work of educators, mark sheet and administrative responsibilities of staff, thereby transgressing section 18 (1)(a) of the Act read with item 3.2.5 of the PAM.
8. It is common cause that, of the eight employees mentioned above, three (3) were acquitted of the above charges for various reasons. Three (3) pleaded guilty and received a sanction of two (2) months suspension without pay which sanction was suspended for a period of three (3) years. The applicants in this matter did not want to plead guilty to the above charges and were invited to attend disciplinary hearings.
9. At their disciplinary hearings, the applicants were charged with Charge 1 as set out above and were also charged with the following additional charges:
Charge 2: You contravened section 18 (1) (i) of the Act in one or more of the following manner described hereunder:
2.1 On or about 02 February 2017, at or near Hammersdale Resource Centre , you failed to carry out a lawful instruction without just or reasonable cause by failing and/or refusing to attend a meeting convened by Mr M R Mchunu regarding strategies on curriculum monitoring coverage.
2.2 From 17 to 19 February 2017, at or near Dokkies, you failed and/or refused to attend a workshop convened by the District Curriculum Management Team.
2.3 On or about 24 to 26 February 2017, at or near Dokkies, you failed to carry out a lawful instruction without just or reasonable cause by failing and/or refusing to attend a workshop on toolkit for SMT on curriculum management;
Charge 3: On or about 11 March 2017, at or near Thornwood Secondary School, displayed disrespect and demonstrated insolent behaviour towards Mr M Makhanya in that you wrongfully and unlawfully denied him an opportunity to present the reason for his visit at the aforesaid school.
10. The applicants were found guilty of committing the misconduct as set out in Charges 1 and 2 and the respondent imposed a sanction of one month suspension without pay. The applicants appealed against the outcome of the disciplinary enquiry to the MEC as they maintained that they were not guilty of the misconduct. The outcome of the appeal was that both applicants were demoted with effect from 01 March 2019. The applicants subsequently referred the dispute to the ELRC for determination alleging that their demotion was procedurally and substantively unfair.
11. The main charge in Charge 1 was withdrawn for the purpose of this arbitration hearing and only the alternative charge to Charge 1 is pursued. The applicants were found not guilty of Charge 3 at the internal disciplinary hearing.
12. As relief, the applicants requested that they the demotion be lifted and that they be restored to their posts of Department Heads with retrospective effect and without any loss of salary and benefits. In addition, they requested compensation for pain and humiliation.
13. Both the applicants testified in support of their version and submitted a bundle of documents marked Bundle “A”. The respondent called one (1) witness to testify in support of its version and submitted a bundle of documents marked Bundle “B”. During the process, the applicants submitted Bundle “C” and “D” which contains calculations of their loss of income as a result of their demotion.
SURVEY OF EVIDENCE AND ARGUMENT
14. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of evidence on issues in dispute deemed necessary for the analysis that follows. All relevant evidence and arguments were considered prior to drafting this award.
15. Charge 1: Only the alternative charge was pursued. Specifically, the parties were to focus their evidence on whether the applicants (in terms of PAM: 3.2.5) had the responsibility and had failed:
15.1. to control the work of educators,
15.2. to control the mark sheets, and
15.3. to control the administrative responsibilities of staff, ie to check if the marks and mark sheets correspond.
16. It was agreed that, after examinations are completed, the educator is responsible for marking and compiling a mark sheet for each subject they teach. The mark sheet is then sent to Department Heads to be moderated. It was not in dispute that the applicants performed the functions of educators and also as moderators in their capacity as Department Head. Once moderated, the mark sheets will find its way to the data base – South African Schools Administration System (SASAMS). Schedules are thereafter compiled and sent to the circuit office.
17. It is common cause that the respondent did not have the original schedules. Only draft schedules were available at this arbitration hearing.
18. In summary, both applicants disputed that they had committed any misconduct with regard to the alternate charge. They were not aware of any learners that were supposed to be progressed but were not progressed and vice-versa and it was not their responsibility to progress learners. As Department Heads, they did not control the mark sheets of educators and they were not responsible for the schedules that were sent to the District Office.
19. Pandaram testified that he performs the functions of a teacher as well as a Department Head. Department Heads do not control mark sheets. Each teacher controls his/her own mark sheets. As a teacher he, together with other teachers, will mark scripts and record the marks on a mark sheet for the subjects they teach. In this regard, he performs this function as a teacher and not as a Department Head.
20. As a Department Head, he moderates marks. Once marks are recorded, the teacher will bring the scripts, a memo and the mark sheets to him for moderation. He takes a sample of about 10% of the scripts. He marks and checks calculations and recordings. Once that is done, he appends his signature, makes photocopies and hands the originals back to the teacher.
21. Once the teacher receives the documents back, the teacher will log the marks on SASAMS by using the teacher’s own login and password. The teacher was therefore responsible for mark sheets.
22. He is unable to check what marks the teacher puts onto SASAMS. He was not aware of any incorrect marks or any marks that were changed on the system. Had he become aware of such, he would have reported it to the Principal who is responsible for disciplining teachers. The principal and secretary has an admin password and can check the marks entered.
23. Teachers are expected to keep current records of learners that were progressed. Teachers teach about five (5) classes with about 200 learners for which he/she is responsible. As a Department Head, he controls five teachers which would be about 1 000 learners. It would be difficult for him to be responsible for all those learners in addition to his normal teaching functions. He spends 85% of his time performing Level 2 teaching functions and cannot perform the functions of a Deputy Principal or Principal. Department Heads control curriculum, annual teacher plans, etc. He does teaching and spends 5% of his time doing other things like moderation.
24. In terms of the SA Schools Act, the Principal is responsible for the safe keeping of all school records. The Principal is also responsible for staff and for managing and guiding teachers with regard to policy and legislation. He never saw the schedules because his name was not on the document. He is not entitled to see the schedules unless instructed by the Principal. The schedules are confidential and cannot be allowed to float around the school. He is not involved in promoting learners. He is a Department Head because he is a good teacher.
25. Ntuli added that he was not involved in the progression of learners and it was not part of his job responsibilities. There are normally about 10 draft schedules done before the final schedule was submitted. The document presented by the respondent was only a draft schedule and not a final schedule.
26. Sibososo Kheswa, the District Director for the Pinetown District, testified for the respondent. The school was an underperforming school and he visited the school to establish how many learners had been progressed the previous year (2016).
27. He requested the progression schedules from the Principal but could not get it. The draft schedules in Bundle B were obtained from the District office. Those were the only schedules that they gave him. He agreed that the draft schedules were not signed. He did not know who submitted the draft schedules to the District office. The schedules were incomplete and there were inconsistences, example the format at page 1 was different to the format at page 7 of Bundle A. He met with the SMT at school and also called the SMT members to a meeting in his office to explain the inconsistencies.
28. After the meeting, he wrote letters to each SMT member individually to respond to page 57 of Bundle A – Intention to institute Disciplinary Action Against Yourself. He agreed that the applicants were given one day to respond but maintained that the applicants didn’t request further time. Both the applicants responded. He did not have time to go through all the responses but saw that the matter had to be taken further. The documents were given to Employee Relations and they had to evaluate and charge employees if necessary. It was not his responsibility and function to charge the applicants. He did not conduct an investigation because there was nothing to investigate and the letter at P57 (mentioned above) preceded the disciplinary hearing.
29. He stated that the applicants were part of SMT and were responsible for the filling in and the management of schedules. The SMT leads the process. He disagreed that the applicants were not responsible for the mark sheets because mark sheets develop the schedule.
30. He was not aware of how marks are entered on SASAMS at the school. He could not comment on the roles of the Principal and SMT. He could not point to any document or policy or procedures that confirmed his view that the applicants were responsible for the development of schedules. He agreed that the teacher, the principal and EDO normally signed the schedules. He agreed that the persons that approved the schedules were responsible for checking and submitting the schedules. He did not know what disciplinary action the 3rd signatory took against the 2nd signatory and what disciplinary action the 2nd signatory took against the 1st signatory but he took disciplinary action against the 3rd signatory.
31. He agreed that the applicants were not part of the approval team and did not sign the document. He could not comment on the duties of the SMT members and held that everyone is an educator and must do other work. He was not sure of the job descriptions of the applicants but maintained that the schedules were a collective effort. He did not read their job descriptions as he is the director and he directs. He agreed that the principal managers the school.
32. With regard to the other members on the SMT, he maintained that they had owned up as to what they had done wrong and their behaviour was corrected. He did not know why the principle of the school was not charged alone. He maintained that he was not at school and could not answer as to which stage of the development of schedules for which blame could be laid on the applicants. He maintained that he was not a specialist and didn’t have the details of what was done or not done on the schedules. He maintained that teachers were not charged because the department was not looking at mark sheets but at schedules for which SMT was responsible.
33. He could make no comment as to whether the demotion of the applicants were fair but held that the SMT members were responsible for the schedules.
34. Charge 2.1: It is common cause that there was a verbal invite by the principal to attend a meeting on 02 February 2017 at an external venue. The applicants did not attend the meeting. There were some educators that tendered apologies and did not attend the meeting. Those educators that tendered their apology were not disciplined.
35. Pandaram testified that he could not remember receiving the verbal request to attend the meeting. He in any event maintained that the meeting was not a lawful meeting as it was scheduled during school hours and a verbal instruction was given. The meeting was for professional development and in terms of the PAM document, such meetings must be held outside of the school day. Verbal instructions are accepted for them to attend meetings if they don’t have to leave the school premises. In this case, the meeting was at an external venue and the instruction had to be in writing. It is mandatory to complete leave forms if they are absent from school.
36. The meeting was a performance related meeting and normally educators that are available attends. About five (5) such meetings were held over the last seven years. He attended about 2 or 3 of those meetings over that period. He was not charged for not attending those of other meetings.
37. Ntuli testified that he worked with Pandaram for about 10 years. They would attend some meetings and not all. He was not previously charged for not attending meetings or workshops. With regard to the meeting on 02 February, he was only informed on the morning of the meeting at 09:00. When he questioned the Principal as to the start time, he was informed that “it starts now”. At that stage he was still at school teaching and was under lots of pressure. He requested permission from the Principal not to attend and the Principal informed him that he may attend when he is available. To him, it therefore meant that the meeting was not mandatory and that he did not have to attend the meeting on the day. It was only important for the school to be represented at the meeting.
38. Charge 2.2 & 2.3: It is common cause that a workshop was scheduled for 17 - 19 February 2017. A repeat workshop was held on 24 - 26 February 2017 for those that were unable to attend the first workshop on 17 February. The parties agreed that the charges be dealt with as one charge as the applicants could not have been found guilty of both Charge 2.2 and 2.3. Both the workshops commenced on a Friday and continued into the weekend. The applicants did not attend a workshop on either of those dates.
39. Pandaram testified that the first day of the workshops (Fridays) were school days and the workshop were, therefore, also unlawful for reason mentioned above. In terms of the PAM document, the school was also required to give one (1) term notice of workshops to be conducted outside of school hours. This was not done in this instance.
40. He did not receive a written notice to attend the workshop on 17 February 2017. It would have been difficult for him to attend such a workshop if a verbal notice was issued without any details of where he was going to stay, etc.
41. With regard to the workshop on 24 February 2017, when he came to school on the Monday after the 17th workshop, the principal informed him that he was questioned as to where Pandaram was and was instructed to issue Pandaram with a letter in writing to attend the workshop on 24 February. He received a letter dated 20 February 2017 from the Principal for the 24 February workshop. The letter stated “you are requested” and did not make it mandatory to attend.
42. He replied to the letter on the same day requesting further details in order to make an informed decision but did not receive a reply. He wanted to attend the workshop but the lack of information prevented him from doing so. He had purchased a new house and was scheduled to move in during that weekend. He needed the information in order to accommodate both the workshop and the relocation. He was of the view that the workshops in this instance was to utilise excess financial year-end funds.
43. Ntuli testified that the Principal told him on 16 February 2017 that there was a possible workshop over the weekend on 17 – 19 February and that someone will phone him to provide details of the venue, accommodation and the programme. No one called him. He realised on 20 February that the workshop took place as the Principal informed him that he was questioned by the district director about his non-attendance.
44. He was not able to attend the workshop commencing on 24 February and wrote a letter of apology (page 19 of Bundle B). No one responded to his letter and he took it that his apology was accepted. He only learnt that it wasn’t when he was charged a year later. He was unable to attend due to a Zulu family function on that Saturday.
45. Consistent application of discipline: With regard to Charge 1 - alternate charge, Pandaram testified that teachers and Principal signed schedules but they were not charged or investigated. Three Department Heads (SADTU members) that pleaded guilty were given a suspended sanction. Another Head of Department, Malinga, was acquitted without an investigation.
46. With regard to Charge 2, Pandaram stated that he is aware of many educators that did not attend meetings and workshops and were not disciplined. Attendance registers are official records of attendance and shows who were present and who were not. He referred specifically to the workshops that commenced on 17 February 2017 and 24 February 2017. Educators were required to attend one of those workshops. Attendance registers for 17 February 2017 is as per pages 79 to 88 of Bundle A. Attendance registers for 24 February 2017 is as per pages 89 to 95 of Bundle A. He provided a list of educators that did not attend either of those workshops, example Page 80, Numbers 18 and 20 – they didn’t attend the first workshop and their names did not appear on the attendance register for the second workshop. Other similar examples are as per the following pages of Bundle A:
46.1. Page 81 – Number 26
46.2. Page 81 – Number 32 & 35
46.3. Page 83 – Number 49
46.4. Page 84 – Number 64
46.5. Page 85 – Number 81, 83 & 84
46.6. Page 86 – Number 90, 96 & 99
46.7. Page 87 – Number 102, 103, 104, 105, 107
47. He was not aware of them tendering any apology for their non-attendance and they were not disciplined.
48. At pages 343 – 344 (Bundle A) are surrounding and neighbouring schools. None of the educators from those schools attended. Historically, no one was charged for not attending. He attended a compulsory meeting in 2019 and kept a copy of the attendance register. Some educators did not attend that meeting and were not disciplined. At page 241 of Bundle A are school that were invited to attend – seven (7) schools did not attend and none of those educators were charged or disciplined.
49. Ntuli testified that there were other educators that did not attend the meeting on 02 February and they were not disciplined, example Malinga and Dladla who he saw at the car park that day.
50. The Appeal Process and MEC Decision to Demote the Applicants: The parties agreed that:
50.1. The applicants appealed the outcome of the disciplinary hearing.
50.2. The respondent did not appeal the outcome of the disciplinary hearing or sanction issued against the applicants.
50.3. In terms of procedure, the respondent does not have an opportunity to appeal against the sanction.
50.4. The decision to demote the applicants was decided on paper based on the disciplinary hearing records.
50.5. There was no appeal hearing conducted.
50.6. The applicants were not given an opportunity to make oral or written submissions with regard to the decision to demote them.
50.7. The applicants, in writing, requested reasons for their demotion but did not get a response.
50.8. The applicants were not informed that the demotion was an alternative to dismissal.
50.9. The applicants were not informed that a possible consequence of appealing would be that a more severe sanction could be imposed.
50.10. The applicants were not requested to provide reasons why they should not be demoted.
51. Pandaram testified that the MEC was supposed to enquire from him as to why a decision of demotion should not be taken.
52. He complained before and after the disciplinary hearing, including a letter to the President of SA and that may be the reason why they were demoted.
53. Procedural Fairness: The applicants testified that they were not given a fair opportunity to present their versions at the disciplinary hearing as the charges were vague and not explained to them. They understood the charges for the first time at this arbitration process. They also testified that the process followed by the MEC in taking a decision to demote them was unfair.
54. Respondent’s evidence: Apart from the evidence of Kheswa in relation to Charge 1, the respondent did not call any witnesses to support its version in relation to Charge 2, the demotion, allegations of inconsistency and procedural fairness.
55. Argument by the parties: - Both parties submitted written closing arguments which were considered in drafting this award.
ANALYSIS OF EVIDENCE AND ARGUMENTS
56. In terms of section 186(2)(a) of the Labour Relations Act, an unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee.
57. It is not in dispute that the applicants, Pandaram and Ntuli, were demoted by the respondent for allegedly committing certain acts of misconduct. The evidence of the parties were lengthy and in my analysis, I have only focused on a few key aspects that were necessary in making my findings. All the evidence was, however, taken into account in determining whether the demotion of the applicants was unfair.
58. The applicants challenged the procedural and substantive fairness of their demotion. I considered the applicants to be reliable witnesses and their versions to be probable. I accept the applicants’ version, as a whole, to be more probable than the version advanced by the respondent given the lack of evidence to support the respondent’s version on the key issues in dispute.
59. On Charge 1 – the alternate charge, I prefer the applicants’ version that they did not commit any misconduct and that the respondent has acted inconsistently in the implementation of discipline. I find that, as Department Heads (not teachers), they were not responsible for the mark sheets, the recording of the marks of other teachers on SASAMS and that they did not play any part in the development, checking, approval or submitting of the schedules. With specific regard to the development of the schedules, I find that the applicants, as Department Heads, had no control over educators.
60. The respondent led the evidence of only one witness, Kheswa. He merely expressed a general view that the applicants, as part of the SMT, ought to be held responsible for the development of schedules. He was unable to substantiate his view with any solid evidence in terms of legislation, policies, procedures, job descriptions, etc. He was not in a position to rebut the applicants’ version as he didn’t know who and how the schedules were developed in schools or what was specifically wrong with the schedules apart from some formatting issues in the schedules. This was the only aspect that he could point to that was wrong in the schedules and he failed to draw a link between the inconsistent formatting in the schedules and the incorrect progression of learners or why/how this had constituted a misconduct serious enough to warrant any form of discipline.
61. I also accept the applicants’ version that draft schedules that were presented by the respondent cannot be relied on for its accuracy as there are many draft schedules compiled and corrected before the final (correct) schedules are submitted. In the absence of final schedules that were properly signed off, I cannot conclude that there was anything wrong with the 2016 schedules. There was also no evidence that some learners that were supposed to be progressed were not progressed and vice-versa or that the applicants had in any way brought the school into disrepute, which was the respondent’s initial reason for disciplining the applicants.
62. I also find that the respondent acted inconsistently in disciplining the applicants in relation to this charge. If the applicants were to be held accountable for the schedules, there was no evidence or explanation from the respondent as to why other persons that were equally or more responsible for the development of schedules, were not disciplined.
63. On Charge 2 (2.1, 2.2 and 2.3), I prefer the applicants’ version that they did not commit any misconduct and that the respondent has acted inconsistently in the implementation of discipline. The respondent did not call any witnesses to dispute or rebut the applicants’ evidence in relation to this charge.
64. I accept the version of the applicants, as set out in their evidence, as probable. I find that the meeting/workshop(s) in question were very poorly arranged and without timeous and proper notice to the applicants. There was also a lack of necessary details and important information about the workshops considering that it was held over weekends. The respondent also failed to consider and respond to the submissions made by the applicants as set out in their evidence.
65. I am convinced that attendance at the meeting/workshop were not mandatory and that it was no different to any previous meeting/workshop with regard to the necessity to attend. I accept that the applicants did not attend some previous meetings/workshops and were not disciplined. I accept that other educators did not attend this particular meeting/workshop and were not disciplined. I therefore find that the respondent acted inconsistently in disciplining staff and that the applicants should not have been disciplined in relation to Charge 2.
66. Having regard to the above and the evidence as a whole, I find that the applicants did not commit the misconduct for which they were charged. Further, having regard to the evidence and the common cause facts, I find that the conduct of the respondent in implementing a more severe sanction at the appeal stage, was unfair. The respondent failed to dispute the applicants’ evidence that there was no legal basis for the demotion. There was simply no explanation from or reasons provided by the respondent as to why it had taken a decision to demote the applicants at the appeal stage.
67. I find, therefore, that the demotion of the applicants was substantively unfair.
68. I also find that the demotion of the applicants was procedurally unfair both with regard to the disciplinary hearing process as well as the appeal process. I accept the undisputed version of the applicants that the charges were not made clear to them at the disciplinary hearing and that they were therefore not given a fair opportunity to present a version in response to the charges. I accept that the respondent had taken a unilateral decision to demote the applicants as it was not disputed that the applicants were not consulted or given an opportunity to present a version as to why a more severe sanction should not have be taken against them.
69. In conclusion, I find that the conduct of the respondent in implementing the initial sanction of one month suspension without pay and thereafter demoting the applicants on appeal, was procedurally and substantively unfair.
70. As relief, the applicants requested that the demotion is lifted and that they be returned to their positions as Department Heads with retrospective effect to the date of demotion – 01 March 2019. Given the above findings, I have no hesitation in granting the said relief. As a result of the retrospective effect thereof, Pandaram is entitled to an amount of R71 959.95 and Ntuli to an amount of R71 456.73. The said amounts are in respect of salaries and bonuses that were deducted/not paid to the applicants as a result of their demotion and is for the period 01 March 2019 to 30 September 2021. The respondent was given an opportunity to oppose the said figures but failed to do so as at the date of this award.
71. In addition to the demotion being lifted and them being paid all moneys retrospectively deducted as a result of the demotion, the applicants claimed compensation for damages in respect of pain and humiliation they suffered as a result of their demotion. I considered the arguments of the applicant in this regard, however, I am of the view that fairness in terms of the Labour Relations Act requires that, where the conduct of an employer is found to be unfair, an employee be placed or restored back to the position that he/she would have been in had it not been for such unfair conduct OR to order compensation. I cannot do both in instances where there are no actual losses by the applicants. In this instance, the applicants have been restored to the positions on terms and conditions that they would have been on had it not been for the demotion and without any loss of salary or benefits as a result thereof. There is no provision in the said Act to go beyond that or to order compensation in addition to what I have awarded. I therefore cannot award compensation as claimed by the applicants.
AWARD
72. In the circumstances I make the following award:
72.1. The demotion of the applicants, Antony Pandaram and Theophlus Siyabonga Ntuli, effected on 01 March 2021, is set aside.
72.2. The respondent, Department of Education – KZN, is ordered to uplift the demotion of the applicants by no later than 30 September 2021 and restore the applicants to the positions of Department Heads on salaries and benefits that they would have been on had it not been for the demotion.
72.3. The respondent is ordered to pay Antony Pandaram an amount of R71 959.95 and Theophlus Siyabonga Ntuli an amount of R71 456.73 within 30 days of being notified of this award.
72.4. There is no order as to costs.
Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal