ELRC644-20/21 EC
Text
ELRC207-21/22GP
Award Date:
19 January 2022
Panelist: Jonathan Gruss
Case No.: ELRC207-21/22GP
Date of Award: 19 January 2022
In the ARBITRATION between:
Lesley Tshiredo
(Applicant)
and
Department of Higher Education & Training
(Respondent)
Applicant’s representative: Mr Sefatsa
Email ramokabane@gmail.com
Respondent’s representative: Mr Zitha
Email: NkatekoZ@eec.edu.za
Summary: Section 186(2) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to transfer.
Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to benefits, transport to commute to and from work.
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.1.3 of the ELRC Constitution : ELRC Dispute Resolution Procedures (2021). The hearing was held via Zoom (virtual) on 28 September 2021, 25 October 2021 and 29 November 2021 and 30 November 2021 and the proceedings were electronically recorded. The applicant, Lesley Tshiredo referred an unfair labour practice dispute to the ELRC. The applicant was represented by Mr SAFATSA, a representative from SALIPWU and the respondent, Department of Higher Education and Training were represented by Mr Zitha, an Assistant Director Labour Relations. The parties agreed to submit written closing arguments by no later 14 December 2021 and submitted written closing arguments as agreed.
ISSUE TO BE DECIDED
2. This dispute concerns an alleged unfair labour practice regarding the transfer of the applicant from the Western TVET College campus in Krugersdorp to the Randfontein Campus.
INTRODUCTION
3. According to the pre-arbitration minutes the following were recorded by the parties:
3.1 facts that are common cause;
The applicant is employed by the respondent as a lecturer and was transferred to the Randfontein Campus of the Western TVET College from the Krugersdorp Campus.
The applicant is unhappy with him being transferred.
3.2 facts that are in dispute
The respondent submits that during January 2021, many student enrolled at the Randfontein Campus resulting in an increase in student numbers and they needed 10 lecturers. They looked at 7 staff member’s timetables in order to ascertain which staff members were underutilised. No one is employed within the section to be a specialist and 3 out of 4 subjects the applicant currently lectures are within the applicant’s skill set.
A final meeting was held with the applicant where he completed and signed a form and chose a subject that he was prepared to lecture. This was before he was given a time table by the campus. In order for the applicant to be relocated back to the Krugersdorp campus, the student numbers must first go up.
The applicant claims that he was never given sufficient time to relocate, whereas he should have been given at least between 60 and 90 days to relocate. He was supposed to be trained on the new subjects and no training was provided to him. The reason provided to him why he had to be transferred (relocated) was not rational, he was forced to accept the transfer, if not, he was threatened that his salary would be stopped and he could lose his job.
4. During the narrowing of the issues (opening statements), the applicant alleges that the respondent did not follow its own transfer policy in that they knew in advance that there would be a reduction in student numbers at the Krugersdorp campus. They knew approximately between 3 to 4 months prior to this and the respondent failed to consult with the applicant. The applicant was given 48 hours’ notice to execute his transfer. It was agreed that he would be provided with transport, to travel between the Krugersdorp Campus and the Randfontein Campus for period of 1 year. After 4 months the vehicle supplied for those transferred to use was taken away. The distance between the two campuses, Krugersdorp and Randfontein is approximately 20km and the distance from applicant’s residence to the Krugersdorp campus was approximately 10 km whereas the distance from his residence to the new campus, Randfontein was approximate 30 km.
5. When asked to explain when the arbitration commenced how the conduct complained of by the applicant amounts to an unfair labour practice the applicant made reference to the autocratic manner in which he was forced to accept the transfer and the removal of the transport provided to them.
6. The respondent submitted that the applicant was not forced to accept the transfer as he alleges and he was not given 48 hours. He was notified on 17 March 2021 and the transfer was affected on 21 March 2021. The indulgence in providing of transport was only for period of 4 months, 23 March 2021 to 23 July 2021 and only the principal of the college can provide permission for the utilisation of transport to get to work.
APPLICANT’S EVIDENCE
7. The applicant testified under oath to the following effect.
7.1 The Krugersdorp campus management sent out a WhatsApp message on a WhatsApp group informing them that due to budget cuts this would have a direct impact on the utilisation of lecturers. The lectures started to engage, they want transparency. A list of 8 lectures names appear on the list shared on the WhatsApp group, his name appearing thereon that was shared. The name list dealt with the sharing of responsibilities. Thereafter, they were summonsed to a meeting where those who were identified were asked to move to the Randfontein Campus.
7.2 At the meeting held with management he enquired why he was chosen in that he did not agree to be moved. He told them that they were not going to move him. He was told that the criteria used in identifying the lecturers to be transferred was LIFO (last in first out). He had a problem with the explanation in that he was not the last one to be employed. He was then told that he had a choice either to move or they would suspend his salary.
7.3 In terms of the respondent’s transfer policy, the policy provides that internal transfer is when employees move from one component or subcomponent to another within the Department of Education and Training. The releasing and receiving delegated authorities of the employee who is transferring must complete and sign off the internal transfer application form and submit it to the responsible HR unit. The policy further provides that all employees’ transfers must be communicated to the HRMA Directorate at Head Office through the formal channels of communication. He was not provided with an internal transfer form and only completed the form that he was told to sign. The arrangement with regard to his move was that they would be provided with subject to teach that they are competent to teach. He told the respondent it would be impossible for him to be transferred. The transfer was approved by the Campus Manager. He never received any documentation indicating that he would only be allowed to utilise transport for a period of 4 months. On 10 August 21 he forwarded an email to the Campus Manager at the Krugersdorp Campus wherein he confirmed their telephonic conversation that they took away the keys of the vehicle based on instructions from HR management and that he had sent all concerned colleagues emails and SMS concerning this. In the email he indicated that none of them that were using the vehicle had received any communication from either HR or from campus management concerning the removal of the vehicle. In the email he requested the Campus Manager to clarify the exact reason why the vehicle had been taken from them as the management were claiming that the 3 month period had elapsed.
7.4 The response he received from campus management on 12 August 2021 was that the decision was taken by the college management for the college to provide transport for a specific period. The college use the resettlement policy to determine the period of transportation, which was supposed to be 3 months but the college decided to make it 4 months. The approved period was from 23 March 2021 to 23 July 21, of which the last week of July was used as a notice period.
7.5 At Randfontein they have the subject marketing report 191 which is NATED. His primary qualification is a degree in marketing. He has honours degree and a postgraduate diploma in higher education. He is currently placed lecturing in the NCV programs and therefore the respondent is not optimising and utilising his qualifications.
7.6 Under cross-examination the applicant was asked which part of the transfer policy did the respondent breach, the response given was that in terms of clause 1.7 they breached the principle of fairness and transparency in that his personal circumstances and preference would be generally taken into account when finalising a transfer decision. It was pointed out to the applicant that in terms of his employment contract he could be required to work at any other place as may reasonably be required by the college. The applicant believed that the decision to transfer him was not a reasonable decision.
7.7 The applicant was asked whether he incurred any cost in having been transferred and whether he applied for the reimbursement of his costs. His response was that he did not in that he was provided with transport therefore he could not claim twice.
7.8 The applicant was shown a letter wherein the acting principal of the college provided instruction to the Fleet Management to provide transport for 8 lecturers that were to be transferred from Krugersdorp Central to Randfontein Campus. The transport would be for the period of 4 months with effect from 23 March 2021 23 July 21 and the transport would be from Krugersdorp Central Campus to the Randfontein Campus each morning and from Randfontein Campus back to Krugersdorp Central Campus in the afternoon until the 4 month period had lapsed. The applicant indicated that this was the first time that he has shown this letter of approval.
7.9 When confronted with who promised him transport for a period of 12 months, the applicant indicated that the acting principal on 17 March 2021 promised them transport for a period of 12 months. The applicant was shown an email sent to him wherein it was recorded therein that the approval period was from 23 March 2021 to 23 July 2021. The applicant reiterated that he was informed by Mr Nkosi that should he not execute his transfer his salary would be stopped. The applicant however conceded that there were 3 meetings held discussing the transfer and that the respondent’s first called for volunteers before making a deciding to transfer. The applicant conceded further that time periods are not provided for in the policy in that by the 31st of that month he was still at the Krugersdorp Campus sorting out issues.
8. Both Norman Koos Mere and Zolile Teto both colleagues of the applicant testified under oath to the following effect. They were both transferred from Krugersdorp Central Campus to Randfontein Campus with the applicant and they also made use of transport provided by the respondent. Both witnesses evidence corroborated that of the applicant especially as it relates to the reason for the transfer, the unhappiness of the witnesses the transfer and threats made should they not execute the transfer, what would happen to them and the means of communication, how they became aware of the decision to transfer. Both witnesses testified that they were informed that they would have the usage of the vehicle provided for the period of 12 months until the academic year end.
RESPONDNET’S EVIDNECE
9. Sello Mogotsi testified under oath to the following effect.
9.1 He is employed by the respondent and is currently the acting principal for the respondent’s college. One of the campuses required for 15 lectures to report on a temporary basis. That number was too high. They then noticed that the Krugersdorp Campus was not reaching targets, the student enrolment was down and as a consequence thereto, they decided to transfer 8 lectures from the college. They had a few meetings with those identified lecturers who were in excess. At the second meeting, the identified individuals signed transfer forms. They told them that they could write on their forms should they be unhappy and why they were they were unhappy with the transfer. Nobody was forced and colleagues should be mindful that had those lecturers who were not willing to execute their transfers they would have stayed at the campus doing nothing. As an employer they wanted to ensure that all employees keep their jobs. ‘
9.2 In the meeting, the lecturers were given reasons why they needed to move. In the PPN document if people are not able to be placed they will be moved. The applicant’s letter of appointment specifically provides that you are required to work at other places when required to work. The transfer policy was followed, what people need to understand that they have classes of 30 students and each lecturer must be utilised for 6 periods per day. They had a proxy 3 to 4 meetings with the lecturers and transport was arranged to assist them for a period of 4 months.
9.3 Transport was not provided until the end of that academic year it was provided for a period of 4 months and at the meeting they had with those transferred, they were told as such. The applicant at the meeting as confirmed by the minutes enquired how the college was going to assist them with transport since he was using one car to drop off a child and his wife at school. The applicant wanted to know if there was a travelling allowance.
9.4 If you are appointed to teach NATED you can be asked to teach NCV, you are appointed as a lecturer and not appointed to teach specific studies.
9.5 Under cross-examination, the witness was shown a Fleet Management Authorisation To Use College Vehicle form. This form indicated that authorisation was given for the vehicle to be used until academic year end. The witness indicated that he never provided authorisation for extension of the 4 month period.
9.6 Under re-examination as relates to applicant claiming the entitlement costs, the witness indicated that no costs were incurred in that he did not received any cost implication claims.
10. Sydney Kgoete the Campus Manager at the Krugersdorp Campus testified under oath to the following effect.
10.1 He is responsible for teaching and learning at the campus and the allocation of subjects to lecturers. He is also responsible to ensure that they have enough lectures to deal with specific subjects based on enrolment numbers. This is first done on a prediction of student numbers for the following year. They also have to look at the actual numbers the following year. The Principal looks at the actual student numbers.
10.2 He is aware of the movement/transfer of the applicant for the Krugersdorp Central Campus to Randfontein Campus. The previous year when they planned for numbers, they realise in January 2021 that the numbers were down. They had enrolled less than planned for. This lead to a meeting with campus managers and other campuses also submitted their enrolment numbers. At the meeting it was determined that they had an oversupply of lectures due to the under enrolment of students. There was however an increase in number of learners at other campuses.
10.3 When identifying lecturers who are in excess, they look into criteria such as LIFO. The applicant was one of the lectures appointed last at the campus and that they looked at the type of skills the lecturer had, for instance lecturers that lectured subjects such as finances or information processing or finance account are determined to have scarce skills. They then look at people who were able to teach scarce skills subjects. They first ask for volunteers and only one person volunteered and they could not use this person due to him having scarce skills.
10.4 On 17 March 2021 they gave the affected individual transfer forms to sign and these forms were signed and completed by the applicant as well. The applicant was not forced, he voluntary completed the forms and signed it
10.5 Under cross-examination, the witness indicated that the applicant was appointed on 24 May 2019 and he was the last person to be appointed permanently. The affected employees were never told that should they not sign the transfer form they could lose their jobs. This was never mentioned at the meeting and when the applicant signed the form, he showed no reluctance. It was mentioned to the witness that the applicant’s dissatisfaction relates to the subject he was required to teach and the response given was that on the 17th the discussion regarding the transfer and the employees concerned was with the subject they would be teaching, the applicant was satisfied with the subjects he would be teaching and even volunteered to teach graphic design. After a week after the applicant started teaching that subject, the applicant did indicate to management that he was not doing well in teaching that subject. The respondent then removed that subject and gave the applicant another subject to teach. At the meeting, the applicant as relates to personal circumstances explain the challenges he was experiencing.
10.6 Under re-examination, as it relates to the transfer policy, he testified that relocation arises when a transfer causes the employee’s family to relocate residence. A transfer is the movement of an employee from one place of work to another place.
11. Mokgadi Machaka the Campus Manager at the Randfontein Campus testified under oath to the following effect.
11.1 Krugersdorp Central Campus did not realise the numbers whereas they at the Randfontein Campus realised that they needed more lecturers and this led to the transfer of lecturers. She received transfer forms from HR in one of the forms she received was that of the applicant. Mr De Bruyn was a senior and he had been having meetings with lectures who was transferred. She had a short meeting with Mr De Bruyn.
11.2 As relates the applicant’s grievance regarding subjects he was required to teach, based on his qualification experience there was only one subject graphic design that he never previously taught. The subject fell under the field of marketing, the applicant was given between 3 to 4 weeks to settle in and he came back and said he was not comfortable in teaching that subject. They then allocated another subject for the applicant. The applicant had office admin and marketing subjects that he taught. The applicant has 6 groups to teach, 4 are in the marketing field and 2 are in the office administration field.
11.3 The transport was for 3 months and Mr Mogotsi showed them the minutes of the meeting wherein it was stipulated amount of vehicles that they would use and the period of utilisation.
11.4 As it relates to Annexure “A” the fleet management authorisation to use a college vehicle form received on 31 March 2021 and before she received the form she received a telephone call from Mr Mogatsi from Krugersdorp Central Campus explaining that they do not have a vehicle for those who were transferred. That is why she released one of their vehicles. The applicant then got the form and brought it to her. He then went to fetch the vehicle a Toyota, that vehicle had problems so they had to use a VW Polo in its place. The applicant then handed to her a new form. When she received a new form she checked the date to see that it corresponded with instructions. The form did not have the writing on the form “until academic year ends”. She does not have the authority to approve people to use motor vehicles and it is the applicant’s manager that had to approve the utilisation.
11.5 Under cross-examination, the witness explained that the form is completed for the release of motor vehicles based on the email they receive. The email came from Douglas the manager. The dates were not on the form which is why they relied on the email. They do not return this form but keep it for audit purposes. It was the applicant that later requested a copy of the form. They received an email from their corporate office for them to release the motor vehicle, the authorisation was for the release of the motor vehicle. They all knew that the motor vehicle was going to be used for three months. She had hoped that the applicant would complete the authorisation form in Krugersdorp in that he had already been using a motor vehicle from Krugersdorp.
12. Lelethu Hoya testified under oath to the following effect.
12.1 She is an intern student in training for the campus management at the Randfontein Campus. As it relates to fleet management, she kept the file that contains fleet management forms and when anyone comes to give them the forms, they will take the forms and file them in the campus manager’s office. The fleet management form people fill in to use college vehicles.
12.2 The forming marked annexure “A” she had first sight thereof when she received the form from Mam Cecilia to be completed. Mam Cecilia is a chief admin clerk.
12.3 When her internship lapsed Mam Cecilia took over the management of the fleet forms and she keeps the keys of all the vehicle. It is her handwriting that appears on the form and the date on which she completed the form is next to her signature. The handwriting on the form “until academic year ends” is not Mam Cecilia’s handwriting. She received this form from Mam Cecilia and when she received the form, the writing “until academic year ends” was not on the form.
12.4 Under cross-examination she explained that she does not know how the writing “until academic year ends” came to be in the form. The applicant came looking for copy of the form during August 2021 during the first week of August.
13. Cecilia Morowane the chief admin Clerk testified under oath.
13.1 As it relates to fleet management she is responsible to make sure that forms are completed. She also keeps the keys of the vehicles. As it relates to Annexure “A” she remembers the applicant coming to the office in that she was contacted by Mam Machaka regarding an email. She gave the applicant the form to complete so that they could assist him with a vehicle. Once the applicant completed the form she then gave the form to Lelethu Hoya so the form could be taken to Mam Machaka.
13.2 The applicant completed the form in her presence wherein he recorded his name and contact details. She does not know who wrote on the form “until academic year end” and that she only completed writing in the destination Randfontein to Krugersdorp and that transport is allocated to lecturers who are from KRC ……. “. She did not write the end date in that the applicant knew how long he could use the vehicle. She did not know the exact date that he would be using the motor vehicle. Krugersdorp Central Campus wanted Randfontein Campus to assist them with a car and the purpose of the email was for them to assist Krugersdorp Campus with a vehicle.
13.3 When Lelethu’s contract finished, she stayed at home for a month and that is when she took over from her. The applicant at that stage already had a vehicle allocated to him but there were problems with that vehicle. Therefore, the vehicle as identified in Annexure “A” was a replacement vehicle.
14. Mandisa Hltshwayo , the HR Manager testified under oath to the following effect.
14.1 His involvement in the transfer of the applicant related to paperwork. He attended the meeting on 17 March 21 and he showed the affected employees how to complete the transfer forms. At the meeting as far as he can recall, the acting principal made it clear that if they are unhappy with the subject choices they can indicate their unhappiness. There was only one person that was unhappy about the subject choice in that person only wanted to teach tourism.
14.2 The transport arrangement was that a vehicle would be provided for a period of 4 months and this indulgence was granted by the acting principal. As soon as the 4 month period lapsed, he reminded campus management of this and he gave them until the Friday that week to return the vehicles and therefore gave them a week’s notice of the ending of the transport arrangement.
14.3 The meeting regarding the transfer was held on 17 March 2021 and the staff who were affected had to report on 31 March.2021.
14.4 Under cross-examination when confronted with the objectives of the transfer policy that provides that the employer shall meet the costs within the country, incurred by an employee and his immediate family when he or she is transferred, the witness responded that they did not receive any claim for relocation costs and the clause does not provide that the respondent must provide transport.
SURVEY OF EVIDENCE AND ARGUMENT
15. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. At the conclusion of the arbitration when I afforded the parties an opportunity to submit written closing arguments, I specifically requested the parties to address me and provide an explanation how the conduct complained of amounts to an unfair labour practice as envisaged in terms of Section 186(2) of the LRA. As recorded in the pre-arbitration minute, the applicant took issue with him being transferred and the manner in which he was transferred. However, during opening statements mention was made about the removal of transport provided and a dispute as to the alleged duration agreed to.
17. The applicant in their closing argument has identified the issue to be determined is to establish whether the respondent acted in good faith and in line with its policy by transferring the applicant to the Randfontein campus and another issue to be determined as to whether the respondent had committed an unfair labour practice. As to relief, the applicant seeks that he be allocated subject relevant to the area of his speciality which is marketing and that he be reimbursed for travelling cost calculated by recent department travelling tariffs.
18. The applicant testified that he was forced to accept the transfer in that he was threatened that should he not execute his transfer his salary would be stopped. This the respondent disputes and claims that the applicant voluntary completed the transfer form. The applicant’s unhappiness appears to be twofold, the expenses that he incurred having to travel the extra distance to work and that he was further prejudiced in that the transfer had an indirect impact on his wife’s studies. His wife could study for free in that he is employee of the college but because he was moved to another campus it became no longer cost-effective from a transport stance for his wife to continue studying. Secondly, the applicant has a problem with this subject choices, he felt that based on his qualification and expertise he was being underutilised. However, the respondent for a period of 4 months provided the applicant with a vehicle to commute between Krugersdorp Central Campus and Randfontein Campus.
19. I believe the applicant when he claims that he was ultimately given an ultimatum, to execute a transfer or there would be consequences. In terms of the applicant’s own employment contract, contractually the respondent was within their rights to transfer the applicant in that in terms of the applicant’s contract he could be required to work at any other place as may reasonably be required by the college. It was never challenged by the applicant that there was a reduction in student numbers at the Krugersdorp Central Campus whereas the contrary occurred at the Standfontein Campus. This meant that due to the reduction in student numbers at the Krugersdorp Central Campus lecturers would be underutilised in that they would have fewer classes to lecture. Whereas, at the Randfontein Campus there would be a shortage of lecturers due to the influx of student numbers at that campus and therefore, the respondent operationally was obliged to ensure that there were enough lecturers at the Randfontein Campus to address the influx of the enrolment of students for 2021. The criteria used by the respondent in identifying who would be transferred was first LIFO and scarce skills. Scarce skills according to the respondent dealt with lecturers teaching in the field of finances or information processing or finance account. Therefore, I can find no unfairness in the respondent transferring the applicant. The respondent first asked for volunteers but this unfortunately did not resolve the need to transfer lectures. The transfer policy provides as it relates to policy provisions that personal circumstances and preference would be generally taken into account when finalising a transfer decision. However, DHET requirements will take precedence.
20. It should be noted that the applicant was transferred within the college for which he was employed from one campus to another and the distance between the two campuses approximately 20 km.
21. The respondent’s decision to transfer the applicant on its own does not amount to an unfair labour practice envisaged in terms of section 186 (2) unless the transfer would amount to a demotion, or would amount to disciplinary action short of dismissal or take the form of a precautionary suspension or that it amounts to a benefits dispute.
22. In the matter between Booysen v SAPS & another [2008] JOL 22262 (LC), Cheadle AJ at [16] held as follows:
“An unfair labour practice is defined in section 186(2). That definition is a closed definition. Unlike its predecessor in the 1958 Labour Relations Act, it is not open-ended. It is restricted to the practices listed. Those practices do not include an unfair act in the conduct of a disciplinary procedure. The listed unfair labour practice "involving suspension or any other unfair disciplinary action short of dismissal" is clearly directed to the substantive fairness of the action and not the procedure.”
23. In the matter of DENOSA obo Njeza and the Cape Peninsula Organisation for the Aged (2009) 30 ILJ 949 (CCMA), the employer operated various homes for the aged and infirm. The employee was employed as a nursing manager at the Arcadia Home. In her contract of employment the employer reserved the right to transfer her from one home to another 'provided that the matter shall first be discussed with the employee and that the employee is timeously... advised of the transfer date'. In 2008 the employee took three months' unpaid sick leave, and indicated that she was ready to resume work on 1 August. On 30 July she received two letters. The first, dated 18 July, informed her to report for duty at Erica Place. The second, dated 22 July, advised that this was wrong and that she had to report to Lotus River Place. When she sought further details no-one was available to talk to her about the matter. She reported to Lotus River Place under protest and claimed before the CCMA that the transfer amounted to a unilateral change to her terms and conditions of employment. She sought a return to Arcadia Home so that the matter could be properly discussed. The commissioner found that the respondent's conduct might well constitute an unfair labour practice within the ambit of s 23 of the Constitution, but that the CCMA only had jurisdiction to arbitrate 'unfair labour practice disputes' falling within s 186(2) of the LRA. Were it not for this limitation, the commissioner would have held that the respondent's conduct towards the applicant was unfair. The referral was dismissed for lack of jurisdiction.
Did the respondent perpetrate an unfair labour practice relating to benefits?
24. As it relates to benefits the applicant is claiming an entitlement to be reimbursed extra travelling costs calculated by the respondent’s transport travelling tariffs.
25. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 1120 (LAC), the LAC agreed with the finding in Protekon that Section 186(2) superimposes a duty of fairness irrespective of whether that duty arises expressly or implicitly in the contractual provisions that establish the benefit. The court found the better approach to be to interpret the term 'benefit' to include a right or entitlement to which an employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to the employee in terms of a policy or practice subject to the employer's discretion. This also put paid to the anomaly created by the decision in HOSPERSA, in terms of which an employee who wanted to use the unfair labour practice jurisdiction in s 186(2) relating to promotion or training did not have to show a right to training or promotion, but had to show a right sourced in contract or statute when using the same remedy in relation to the provision of benefits.
26. The respondent as a means to assist those employees transferred provided the applicant with the use of a vehicle belonging to the respondent so that they could commute between Krugersdorp Central Campus and Randfontein Campus. The dispute between the parties is that this indulgence was provided for period of 4 months whereas the applicant claims that this indulgence granted to them was until the end of the academic year. The applicant has produced a document marked Annexure “A” that is an authorisation form for utilisation of a college vehicle, the applicant claims that this document is proof that there was an agreement that they would have use of the vehicle until the end of the academic year. The acting principal of the respondent, Mr Mogotsi testified that although the respondent policy limits to the utilisation of the respondent’s vehicle to a period of 3 months, he agreed to allow them to use the vehicle for period of 4 months. He specifically recorded that in terms of the transfer letter he signed it states that the transport would be for period of 4 months from 23 March 21-23 July 2021 and at the meeting held with all involved including the applicant he only granted permission for the vehicle to be used for 4 months. The minutes of the meeting confirms this point. It was the respondent stance that only the campus principal had the authority to grant authorisation and any document signed to the contrary by subordinate cannot overrule the decision taken by him. I shall not dwell on whether this authorisation document had been altered for misrepresentation purposes. The respondent’s witnesses and in this regard, I refer to Ms Hoya, Ms Morowane and Ms Machaka testified that when Annexure “A” was signed, the period of duration was not recorded and therefore someone must have altered the document. What I can take from the evidence presented that the document in question is completed and retained by the respondent for administrative purposes and the applicant during August 2021 according to Ms Hoya approach the respondent seeking a copy to be made and a copy was made.
27. When Ms Hlatshwayi, the HR manager testified under cross examination when confronted about the objectives of the policy testified they had not received any relocation costs claim from applicant and that the policy does not provide that the respondent must provide transport.
28. Accordingly, I must conclude as it relates to the applicant been provided with transport for period exceeding initial 4 months, I’m not satisfied that the applicant has such an entitlement.
29. I therefore make the following order.
AWARD
30. The applicant, Lesley Tshiredo has failed to establish that the respondent, Department of Higher Education and Training committed an unfair labour practice relating to benefits arising out of his transfer from Krugersdorp Central Campus to Randfontein Campus.
31. The applicant is not entitled to any relief.
Name: Jonathan Gruss
(ELRC) Arbitrator
Case No.: ELRC207-21/22GP
Date of Award: 19 January 2022
In the ARBITRATION between:
Lesley Tshiredo
(Applicant)
and
Department of Higher Education & Training
(Respondent)
Applicant’s representative: Mr Sefatsa
Email ramokabane@gmail.com
Respondent’s representative: Mr Zitha
Email: NkatekoZ@eec.edu.za
Summary: Section 186(2) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to transfer.
Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to benefits, transport to commute to and from work.
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.1.3 of the ELRC Constitution : ELRC Dispute Resolution Procedures (2021). The hearing was held via Zoom (virtual) on 28 September 2021, 25 October 2021 and 29 November 2021 and 30 November 2021 and the proceedings were electronically recorded. The applicant, Lesley Tshiredo referred an unfair labour practice dispute to the ELRC. The applicant was represented by Mr SAFATSA, a representative from SALIPWU and the respondent, Department of Higher Education and Training were represented by Mr Zitha, an Assistant Director Labour Relations. The parties agreed to submit written closing arguments by no later 14 December 2021 and submitted written closing arguments as agreed.
ISSUE TO BE DECIDED
2. This dispute concerns an alleged unfair labour practice regarding the transfer of the applicant from the Western TVET College campus in Krugersdorp to the Randfontein Campus.
INTRODUCTION
3. According to the pre-arbitration minutes the following were recorded by the parties:
3.1 facts that are common cause;
The applicant is employed by the respondent as a lecturer and was transferred to the Randfontein Campus of the Western TVET College from the Krugersdorp Campus.
The applicant is unhappy with him being transferred.
3.2 facts that are in dispute
The respondent submits that during January 2021, many student enrolled at the Randfontein Campus resulting in an increase in student numbers and they needed 10 lecturers. They looked at 7 staff member’s timetables in order to ascertain which staff members were underutilised. No one is employed within the section to be a specialist and 3 out of 4 subjects the applicant currently lectures are within the applicant’s skill set.
A final meeting was held with the applicant where he completed and signed a form and chose a subject that he was prepared to lecture. This was before he was given a time table by the campus. In order for the applicant to be relocated back to the Krugersdorp campus, the student numbers must first go up.
The applicant claims that he was never given sufficient time to relocate, whereas he should have been given at least between 60 and 90 days to relocate. He was supposed to be trained on the new subjects and no training was provided to him. The reason provided to him why he had to be transferred (relocated) was not rational, he was forced to accept the transfer, if not, he was threatened that his salary would be stopped and he could lose his job.
4. During the narrowing of the issues (opening statements), the applicant alleges that the respondent did not follow its own transfer policy in that they knew in advance that there would be a reduction in student numbers at the Krugersdorp campus. They knew approximately between 3 to 4 months prior to this and the respondent failed to consult with the applicant. The applicant was given 48 hours’ notice to execute his transfer. It was agreed that he would be provided with transport, to travel between the Krugersdorp Campus and the Randfontein Campus for period of 1 year. After 4 months the vehicle supplied for those transferred to use was taken away. The distance between the two campuses, Krugersdorp and Randfontein is approximately 20km and the distance from applicant’s residence to the Krugersdorp campus was approximately 10 km whereas the distance from his residence to the new campus, Randfontein was approximate 30 km.
5. When asked to explain when the arbitration commenced how the conduct complained of by the applicant amounts to an unfair labour practice the applicant made reference to the autocratic manner in which he was forced to accept the transfer and the removal of the transport provided to them.
6. The respondent submitted that the applicant was not forced to accept the transfer as he alleges and he was not given 48 hours. He was notified on 17 March 2021 and the transfer was affected on 21 March 2021. The indulgence in providing of transport was only for period of 4 months, 23 March 2021 to 23 July 2021 and only the principal of the college can provide permission for the utilisation of transport to get to work.
APPLICANT’S EVIDENCE
7. The applicant testified under oath to the following effect.
7.1 The Krugersdorp campus management sent out a WhatsApp message on a WhatsApp group informing them that due to budget cuts this would have a direct impact on the utilisation of lecturers. The lectures started to engage, they want transparency. A list of 8 lectures names appear on the list shared on the WhatsApp group, his name appearing thereon that was shared. The name list dealt with the sharing of responsibilities. Thereafter, they were summonsed to a meeting where those who were identified were asked to move to the Randfontein Campus.
7.2 At the meeting held with management he enquired why he was chosen in that he did not agree to be moved. He told them that they were not going to move him. He was told that the criteria used in identifying the lecturers to be transferred was LIFO (last in first out). He had a problem with the explanation in that he was not the last one to be employed. He was then told that he had a choice either to move or they would suspend his salary.
7.3 In terms of the respondent’s transfer policy, the policy provides that internal transfer is when employees move from one component or subcomponent to another within the Department of Education and Training. The releasing and receiving delegated authorities of the employee who is transferring must complete and sign off the internal transfer application form and submit it to the responsible HR unit. The policy further provides that all employees’ transfers must be communicated to the HRMA Directorate at Head Office through the formal channels of communication. He was not provided with an internal transfer form and only completed the form that he was told to sign. The arrangement with regard to his move was that they would be provided with subject to teach that they are competent to teach. He told the respondent it would be impossible for him to be transferred. The transfer was approved by the Campus Manager. He never received any documentation indicating that he would only be allowed to utilise transport for a period of 4 months. On 10 August 21 he forwarded an email to the Campus Manager at the Krugersdorp Campus wherein he confirmed their telephonic conversation that they took away the keys of the vehicle based on instructions from HR management and that he had sent all concerned colleagues emails and SMS concerning this. In the email he indicated that none of them that were using the vehicle had received any communication from either HR or from campus management concerning the removal of the vehicle. In the email he requested the Campus Manager to clarify the exact reason why the vehicle had been taken from them as the management were claiming that the 3 month period had elapsed.
7.4 The response he received from campus management on 12 August 2021 was that the decision was taken by the college management for the college to provide transport for a specific period. The college use the resettlement policy to determine the period of transportation, which was supposed to be 3 months but the college decided to make it 4 months. The approved period was from 23 March 2021 to 23 July 21, of which the last week of July was used as a notice period.
7.5 At Randfontein they have the subject marketing report 191 which is NATED. His primary qualification is a degree in marketing. He has honours degree and a postgraduate diploma in higher education. He is currently placed lecturing in the NCV programs and therefore the respondent is not optimising and utilising his qualifications.
7.6 Under cross-examination the applicant was asked which part of the transfer policy did the respondent breach, the response given was that in terms of clause 1.7 they breached the principle of fairness and transparency in that his personal circumstances and preference would be generally taken into account when finalising a transfer decision. It was pointed out to the applicant that in terms of his employment contract he could be required to work at any other place as may reasonably be required by the college. The applicant believed that the decision to transfer him was not a reasonable decision.
7.7 The applicant was asked whether he incurred any cost in having been transferred and whether he applied for the reimbursement of his costs. His response was that he did not in that he was provided with transport therefore he could not claim twice.
7.8 The applicant was shown a letter wherein the acting principal of the college provided instruction to the Fleet Management to provide transport for 8 lecturers that were to be transferred from Krugersdorp Central to Randfontein Campus. The transport would be for the period of 4 months with effect from 23 March 2021 23 July 21 and the transport would be from Krugersdorp Central Campus to the Randfontein Campus each morning and from Randfontein Campus back to Krugersdorp Central Campus in the afternoon until the 4 month period had lapsed. The applicant indicated that this was the first time that he has shown this letter of approval.
7.9 When confronted with who promised him transport for a period of 12 months, the applicant indicated that the acting principal on 17 March 2021 promised them transport for a period of 12 months. The applicant was shown an email sent to him wherein it was recorded therein that the approval period was from 23 March 2021 to 23 July 2021. The applicant reiterated that he was informed by Mr Nkosi that should he not execute his transfer his salary would be stopped. The applicant however conceded that there were 3 meetings held discussing the transfer and that the respondent’s first called for volunteers before making a deciding to transfer. The applicant conceded further that time periods are not provided for in the policy in that by the 31st of that month he was still at the Krugersdorp Campus sorting out issues.
8. Both Norman Koos Mere and Zolile Teto both colleagues of the applicant testified under oath to the following effect. They were both transferred from Krugersdorp Central Campus to Randfontein Campus with the applicant and they also made use of transport provided by the respondent. Both witnesses evidence corroborated that of the applicant especially as it relates to the reason for the transfer, the unhappiness of the witnesses the transfer and threats made should they not execute the transfer, what would happen to them and the means of communication, how they became aware of the decision to transfer. Both witnesses testified that they were informed that they would have the usage of the vehicle provided for the period of 12 months until the academic year end.
RESPONDNET’S EVIDNECE
9. Sello Mogotsi testified under oath to the following effect.
9.1 He is employed by the respondent and is currently the acting principal for the respondent’s college. One of the campuses required for 15 lectures to report on a temporary basis. That number was too high. They then noticed that the Krugersdorp Campus was not reaching targets, the student enrolment was down and as a consequence thereto, they decided to transfer 8 lectures from the college. They had a few meetings with those identified lecturers who were in excess. At the second meeting, the identified individuals signed transfer forms. They told them that they could write on their forms should they be unhappy and why they were they were unhappy with the transfer. Nobody was forced and colleagues should be mindful that had those lecturers who were not willing to execute their transfers they would have stayed at the campus doing nothing. As an employer they wanted to ensure that all employees keep their jobs. ‘
9.2 In the meeting, the lecturers were given reasons why they needed to move. In the PPN document if people are not able to be placed they will be moved. The applicant’s letter of appointment specifically provides that you are required to work at other places when required to work. The transfer policy was followed, what people need to understand that they have classes of 30 students and each lecturer must be utilised for 6 periods per day. They had a proxy 3 to 4 meetings with the lecturers and transport was arranged to assist them for a period of 4 months.
9.3 Transport was not provided until the end of that academic year it was provided for a period of 4 months and at the meeting they had with those transferred, they were told as such. The applicant at the meeting as confirmed by the minutes enquired how the college was going to assist them with transport since he was using one car to drop off a child and his wife at school. The applicant wanted to know if there was a travelling allowance.
9.4 If you are appointed to teach NATED you can be asked to teach NCV, you are appointed as a lecturer and not appointed to teach specific studies.
9.5 Under cross-examination, the witness was shown a Fleet Management Authorisation To Use College Vehicle form. This form indicated that authorisation was given for the vehicle to be used until academic year end. The witness indicated that he never provided authorisation for extension of the 4 month period.
9.6 Under re-examination as relates to applicant claiming the entitlement costs, the witness indicated that no costs were incurred in that he did not received any cost implication claims.
10. Sydney Kgoete the Campus Manager at the Krugersdorp Campus testified under oath to the following effect.
10.1 He is responsible for teaching and learning at the campus and the allocation of subjects to lecturers. He is also responsible to ensure that they have enough lectures to deal with specific subjects based on enrolment numbers. This is first done on a prediction of student numbers for the following year. They also have to look at the actual numbers the following year. The Principal looks at the actual student numbers.
10.2 He is aware of the movement/transfer of the applicant for the Krugersdorp Central Campus to Randfontein Campus. The previous year when they planned for numbers, they realise in January 2021 that the numbers were down. They had enrolled less than planned for. This lead to a meeting with campus managers and other campuses also submitted their enrolment numbers. At the meeting it was determined that they had an oversupply of lectures due to the under enrolment of students. There was however an increase in number of learners at other campuses.
10.3 When identifying lecturers who are in excess, they look into criteria such as LIFO. The applicant was one of the lectures appointed last at the campus and that they looked at the type of skills the lecturer had, for instance lecturers that lectured subjects such as finances or information processing or finance account are determined to have scarce skills. They then look at people who were able to teach scarce skills subjects. They first ask for volunteers and only one person volunteered and they could not use this person due to him having scarce skills.
10.4 On 17 March 2021 they gave the affected individual transfer forms to sign and these forms were signed and completed by the applicant as well. The applicant was not forced, he voluntary completed the forms and signed it
10.5 Under cross-examination, the witness indicated that the applicant was appointed on 24 May 2019 and he was the last person to be appointed permanently. The affected employees were never told that should they not sign the transfer form they could lose their jobs. This was never mentioned at the meeting and when the applicant signed the form, he showed no reluctance. It was mentioned to the witness that the applicant’s dissatisfaction relates to the subject he was required to teach and the response given was that on the 17th the discussion regarding the transfer and the employees concerned was with the subject they would be teaching, the applicant was satisfied with the subjects he would be teaching and even volunteered to teach graphic design. After a week after the applicant started teaching that subject, the applicant did indicate to management that he was not doing well in teaching that subject. The respondent then removed that subject and gave the applicant another subject to teach. At the meeting, the applicant as relates to personal circumstances explain the challenges he was experiencing.
10.6 Under re-examination, as it relates to the transfer policy, he testified that relocation arises when a transfer causes the employee’s family to relocate residence. A transfer is the movement of an employee from one place of work to another place.
11. Mokgadi Machaka the Campus Manager at the Randfontein Campus testified under oath to the following effect.
11.1 Krugersdorp Central Campus did not realise the numbers whereas they at the Randfontein Campus realised that they needed more lecturers and this led to the transfer of lecturers. She received transfer forms from HR in one of the forms she received was that of the applicant. Mr De Bruyn was a senior and he had been having meetings with lectures who was transferred. She had a short meeting with Mr De Bruyn.
11.2 As relates the applicant’s grievance regarding subjects he was required to teach, based on his qualification experience there was only one subject graphic design that he never previously taught. The subject fell under the field of marketing, the applicant was given between 3 to 4 weeks to settle in and he came back and said he was not comfortable in teaching that subject. They then allocated another subject for the applicant. The applicant had office admin and marketing subjects that he taught. The applicant has 6 groups to teach, 4 are in the marketing field and 2 are in the office administration field.
11.3 The transport was for 3 months and Mr Mogotsi showed them the minutes of the meeting wherein it was stipulated amount of vehicles that they would use and the period of utilisation.
11.4 As it relates to Annexure “A” the fleet management authorisation to use a college vehicle form received on 31 March 2021 and before she received the form she received a telephone call from Mr Mogatsi from Krugersdorp Central Campus explaining that they do not have a vehicle for those who were transferred. That is why she released one of their vehicles. The applicant then got the form and brought it to her. He then went to fetch the vehicle a Toyota, that vehicle had problems so they had to use a VW Polo in its place. The applicant then handed to her a new form. When she received a new form she checked the date to see that it corresponded with instructions. The form did not have the writing on the form “until academic year ends”. She does not have the authority to approve people to use motor vehicles and it is the applicant’s manager that had to approve the utilisation.
11.5 Under cross-examination, the witness explained that the form is completed for the release of motor vehicles based on the email they receive. The email came from Douglas the manager. The dates were not on the form which is why they relied on the email. They do not return this form but keep it for audit purposes. It was the applicant that later requested a copy of the form. They received an email from their corporate office for them to release the motor vehicle, the authorisation was for the release of the motor vehicle. They all knew that the motor vehicle was going to be used for three months. She had hoped that the applicant would complete the authorisation form in Krugersdorp in that he had already been using a motor vehicle from Krugersdorp.
12. Lelethu Hoya testified under oath to the following effect.
12.1 She is an intern student in training for the campus management at the Randfontein Campus. As it relates to fleet management, she kept the file that contains fleet management forms and when anyone comes to give them the forms, they will take the forms and file them in the campus manager’s office. The fleet management form people fill in to use college vehicles.
12.2 The forming marked annexure “A” she had first sight thereof when she received the form from Mam Cecilia to be completed. Mam Cecilia is a chief admin clerk.
12.3 When her internship lapsed Mam Cecilia took over the management of the fleet forms and she keeps the keys of all the vehicle. It is her handwriting that appears on the form and the date on which she completed the form is next to her signature. The handwriting on the form “until academic year ends” is not Mam Cecilia’s handwriting. She received this form from Mam Cecilia and when she received the form, the writing “until academic year ends” was not on the form.
12.4 Under cross-examination she explained that she does not know how the writing “until academic year ends” came to be in the form. The applicant came looking for copy of the form during August 2021 during the first week of August.
13. Cecilia Morowane the chief admin Clerk testified under oath.
13.1 As it relates to fleet management she is responsible to make sure that forms are completed. She also keeps the keys of the vehicles. As it relates to Annexure “A” she remembers the applicant coming to the office in that she was contacted by Mam Machaka regarding an email. She gave the applicant the form to complete so that they could assist him with a vehicle. Once the applicant completed the form she then gave the form to Lelethu Hoya so the form could be taken to Mam Machaka.
13.2 The applicant completed the form in her presence wherein he recorded his name and contact details. She does not know who wrote on the form “until academic year end” and that she only completed writing in the destination Randfontein to Krugersdorp and that transport is allocated to lecturers who are from KRC ……. “. She did not write the end date in that the applicant knew how long he could use the vehicle. She did not know the exact date that he would be using the motor vehicle. Krugersdorp Central Campus wanted Randfontein Campus to assist them with a car and the purpose of the email was for them to assist Krugersdorp Campus with a vehicle.
13.3 When Lelethu’s contract finished, she stayed at home for a month and that is when she took over from her. The applicant at that stage already had a vehicle allocated to him but there were problems with that vehicle. Therefore, the vehicle as identified in Annexure “A” was a replacement vehicle.
14. Mandisa Hltshwayo , the HR Manager testified under oath to the following effect.
14.1 His involvement in the transfer of the applicant related to paperwork. He attended the meeting on 17 March 21 and he showed the affected employees how to complete the transfer forms. At the meeting as far as he can recall, the acting principal made it clear that if they are unhappy with the subject choices they can indicate their unhappiness. There was only one person that was unhappy about the subject choice in that person only wanted to teach tourism.
14.2 The transport arrangement was that a vehicle would be provided for a period of 4 months and this indulgence was granted by the acting principal. As soon as the 4 month period lapsed, he reminded campus management of this and he gave them until the Friday that week to return the vehicles and therefore gave them a week’s notice of the ending of the transport arrangement.
14.3 The meeting regarding the transfer was held on 17 March 2021 and the staff who were affected had to report on 31 March.2021.
14.4 Under cross-examination when confronted with the objectives of the transfer policy that provides that the employer shall meet the costs within the country, incurred by an employee and his immediate family when he or she is transferred, the witness responded that they did not receive any claim for relocation costs and the clause does not provide that the respondent must provide transport.
SURVEY OF EVIDENCE AND ARGUMENT
15. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. At the conclusion of the arbitration when I afforded the parties an opportunity to submit written closing arguments, I specifically requested the parties to address me and provide an explanation how the conduct complained of amounts to an unfair labour practice as envisaged in terms of Section 186(2) of the LRA. As recorded in the pre-arbitration minute, the applicant took issue with him being transferred and the manner in which he was transferred. However, during opening statements mention was made about the removal of transport provided and a dispute as to the alleged duration agreed to.
17. The applicant in their closing argument has identified the issue to be determined is to establish whether the respondent acted in good faith and in line with its policy by transferring the applicant to the Randfontein campus and another issue to be determined as to whether the respondent had committed an unfair labour practice. As to relief, the applicant seeks that he be allocated subject relevant to the area of his speciality which is marketing and that he be reimbursed for travelling cost calculated by recent department travelling tariffs.
18. The applicant testified that he was forced to accept the transfer in that he was threatened that should he not execute his transfer his salary would be stopped. This the respondent disputes and claims that the applicant voluntary completed the transfer form. The applicant’s unhappiness appears to be twofold, the expenses that he incurred having to travel the extra distance to work and that he was further prejudiced in that the transfer had an indirect impact on his wife’s studies. His wife could study for free in that he is employee of the college but because he was moved to another campus it became no longer cost-effective from a transport stance for his wife to continue studying. Secondly, the applicant has a problem with this subject choices, he felt that based on his qualification and expertise he was being underutilised. However, the respondent for a period of 4 months provided the applicant with a vehicle to commute between Krugersdorp Central Campus and Randfontein Campus.
19. I believe the applicant when he claims that he was ultimately given an ultimatum, to execute a transfer or there would be consequences. In terms of the applicant’s own employment contract, contractually the respondent was within their rights to transfer the applicant in that in terms of the applicant’s contract he could be required to work at any other place as may reasonably be required by the college. It was never challenged by the applicant that there was a reduction in student numbers at the Krugersdorp Central Campus whereas the contrary occurred at the Standfontein Campus. This meant that due to the reduction in student numbers at the Krugersdorp Central Campus lecturers would be underutilised in that they would have fewer classes to lecture. Whereas, at the Randfontein Campus there would be a shortage of lecturers due to the influx of student numbers at that campus and therefore, the respondent operationally was obliged to ensure that there were enough lecturers at the Randfontein Campus to address the influx of the enrolment of students for 2021. The criteria used by the respondent in identifying who would be transferred was first LIFO and scarce skills. Scarce skills according to the respondent dealt with lecturers teaching in the field of finances or information processing or finance account. Therefore, I can find no unfairness in the respondent transferring the applicant. The respondent first asked for volunteers but this unfortunately did not resolve the need to transfer lectures. The transfer policy provides as it relates to policy provisions that personal circumstances and preference would be generally taken into account when finalising a transfer decision. However, DHET requirements will take precedence.
20. It should be noted that the applicant was transferred within the college for which he was employed from one campus to another and the distance between the two campuses approximately 20 km.
21. The respondent’s decision to transfer the applicant on its own does not amount to an unfair labour practice envisaged in terms of section 186 (2) unless the transfer would amount to a demotion, or would amount to disciplinary action short of dismissal or take the form of a precautionary suspension or that it amounts to a benefits dispute.
22. In the matter between Booysen v SAPS & another [2008] JOL 22262 (LC), Cheadle AJ at [16] held as follows:
“An unfair labour practice is defined in section 186(2). That definition is a closed definition. Unlike its predecessor in the 1958 Labour Relations Act, it is not open-ended. It is restricted to the practices listed. Those practices do not include an unfair act in the conduct of a disciplinary procedure. The listed unfair labour practice "involving suspension or any other unfair disciplinary action short of dismissal" is clearly directed to the substantive fairness of the action and not the procedure.”
23. In the matter of DENOSA obo Njeza and the Cape Peninsula Organisation for the Aged (2009) 30 ILJ 949 (CCMA), the employer operated various homes for the aged and infirm. The employee was employed as a nursing manager at the Arcadia Home. In her contract of employment the employer reserved the right to transfer her from one home to another 'provided that the matter shall first be discussed with the employee and that the employee is timeously... advised of the transfer date'. In 2008 the employee took three months' unpaid sick leave, and indicated that she was ready to resume work on 1 August. On 30 July she received two letters. The first, dated 18 July, informed her to report for duty at Erica Place. The second, dated 22 July, advised that this was wrong and that she had to report to Lotus River Place. When she sought further details no-one was available to talk to her about the matter. She reported to Lotus River Place under protest and claimed before the CCMA that the transfer amounted to a unilateral change to her terms and conditions of employment. She sought a return to Arcadia Home so that the matter could be properly discussed. The commissioner found that the respondent's conduct might well constitute an unfair labour practice within the ambit of s 23 of the Constitution, but that the CCMA only had jurisdiction to arbitrate 'unfair labour practice disputes' falling within s 186(2) of the LRA. Were it not for this limitation, the commissioner would have held that the respondent's conduct towards the applicant was unfair. The referral was dismissed for lack of jurisdiction.
Did the respondent perpetrate an unfair labour practice relating to benefits?
24. As it relates to benefits the applicant is claiming an entitlement to be reimbursed extra travelling costs calculated by the respondent’s transport travelling tariffs.
25. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 1120 (LAC), the LAC agreed with the finding in Protekon that Section 186(2) superimposes a duty of fairness irrespective of whether that duty arises expressly or implicitly in the contractual provisions that establish the benefit. The court found the better approach to be to interpret the term 'benefit' to include a right or entitlement to which an employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to the employee in terms of a policy or practice subject to the employer's discretion. This also put paid to the anomaly created by the decision in HOSPERSA, in terms of which an employee who wanted to use the unfair labour practice jurisdiction in s 186(2) relating to promotion or training did not have to show a right to training or promotion, but had to show a right sourced in contract or statute when using the same remedy in relation to the provision of benefits.
26. The respondent as a means to assist those employees transferred provided the applicant with the use of a vehicle belonging to the respondent so that they could commute between Krugersdorp Central Campus and Randfontein Campus. The dispute between the parties is that this indulgence was provided for period of 4 months whereas the applicant claims that this indulgence granted to them was until the end of the academic year. The applicant has produced a document marked Annexure “A” that is an authorisation form for utilisation of a college vehicle, the applicant claims that this document is proof that there was an agreement that they would have use of the vehicle until the end of the academic year. The acting principal of the respondent, Mr Mogotsi testified that although the respondent policy limits to the utilisation of the respondent’s vehicle to a period of 3 months, he agreed to allow them to use the vehicle for period of 4 months. He specifically recorded that in terms of the transfer letter he signed it states that the transport would be for period of 4 months from 23 March 21-23 July 2021 and at the meeting held with all involved including the applicant he only granted permission for the vehicle to be used for 4 months. The minutes of the meeting confirms this point. It was the respondent stance that only the campus principal had the authority to grant authorisation and any document signed to the contrary by subordinate cannot overrule the decision taken by him. I shall not dwell on whether this authorisation document had been altered for misrepresentation purposes. The respondent’s witnesses and in this regard, I refer to Ms Hoya, Ms Morowane and Ms Machaka testified that when Annexure “A” was signed, the period of duration was not recorded and therefore someone must have altered the document. What I can take from the evidence presented that the document in question is completed and retained by the respondent for administrative purposes and the applicant during August 2021 according to Ms Hoya approach the respondent seeking a copy to be made and a copy was made.
27. When Ms Hlatshwayi, the HR manager testified under cross examination when confronted about the objectives of the policy testified they had not received any relocation costs claim from applicant and that the policy does not provide that the respondent must provide transport.
28. Accordingly, I must conclude as it relates to the applicant been provided with transport for period exceeding initial 4 months, I’m not satisfied that the applicant has such an entitlement.
29. I therefore make the following order.
AWARD
30. The applicant, Lesley Tshiredo has failed to establish that the respondent, Department of Higher Education and Training committed an unfair labour practice relating to benefits arising out of his transfer from Krugersdorp Central Campus to Randfontein Campus.
31. The applicant is not entitled to any relief.
Name: Jonathan Gruss
(ELRC) Arbitrator