ELRC1048-21/22KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (VIRTUALLY) Case No ELRC1048-21/22KZN

In the matter between

THANDAZILE GASA Applicant

and

DEPARTMENT OF EDUCATION: KWAZULU-NATAL Respondent

ARBITRATOR: Monde Boyce

HEARD: 27 May 2022; 26 September 2022 & 06 October 2022

CLOSING ARGUMENTS: 13 October 2022

DATE OF AWARD: 25 October 2022

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC set this matter down for arbitration on the 27 May 2022 and scheduled it to proceed virtually. The matter could not be concluded on this date and was adjourned to the 26 September 2022 and was concluded on the 06 October 2022.

[2] An interpreter was arranged and provided services when the applicant testified. The proceedings were digitally recorded, and typed notes were taken.

[3] Parties had electronically exchanged bundles and no issues were raised with the bundles.

THE ISSUE TO BE DECIDED:

[4] I am required to decide whether the respondent, in declaring the applicant, Miss Gasa to be in excess, properly applied the provisions of the HRM Circular 50 of 2021 and am required to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[5] The applicant is currently employed as an educator at Intlanganiso Primary School and is specializing in History and IsiZulu. A meeting was held on the 04 December 2020 where the applicant was declared in excess at the school and where she was advised that she would be transferred to Novimba Secondary School. The applicant took issue with her being declared excess at the school and referred a dispute to the Council in respect of which she alleged that the respondent failed to apply the provisions of the HRM Circular 50 of 2021 on Post Provisioning in declaring her excess. When the dispute could not be successfully conciliated, the applicant referred the dispute for arbitration. She seeks to have the respondent declared to have failed to apply the HRM Circular 50 of 2021 in its declaring her in excess at Intlanganiso Primary School, and that she be allowed to remain at the said school as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicant’s Evidence

[6] The applicant, Miss Thandazile Beatrice Gasa, testified that she and her fellow educators were called by the principal to his office in December 2020. The principal informed them that he had a Post Provisioning Norms (PPN) certificate that confirmed that no one was going to leave the school and that if all the educators were in agreement, they should sign confirmation to the effect that they will all remain at the school. She was later called by the principal on the 04 December 2020 who asked her to meet her at Indwede Teachers Centre. During the meeting, the principal asked her about her qualifications. She told the principal what her qualifications are. The principal told her that she was declaring her to be in excess at the school (Intlanganiso Primary School). She asked the principal to give her (applicant) time to think about the decision. Present at the meeting was Miss Zondo, Miss Mathebula, Miss Ngubane, the principal and herself.

[7] She believes that there was no need for her to be declared in surplus because according to the PPN certificate, the staff complement did not have any additional educator other than the six (06) educators who were placed at the school. There was no additional educator that was needed at the school or teachers that needed to be moved from the school. Another educator from a neighboring school later arrived and was employed to teach at the school. She then received a letter stating that she was being moved to Novimba Secondary School. She has been teaching at Intlanganiso Primary School since 2015 and has been teaching all the subjects and there had never been a time where they were told that they needed to be specialists.

The Respondent’s Evidence

[8] The employer called its first witness, Miss Kuhlekwethu Sizokuhle Mncube, who testified that she is employed as a school principal at Intlanganiso Primary School. She is aware of the HRM Circular 50 of 2021. When schools receive the PPN, the school principal would read it and issue a communication book and call all the educators to the office to discuss the PPN. She called a meeting on the 04 December 2020 to discuss the PPN. During the meeting she explained the procedure and the circular to the staff. The school allocation in terms of the PPN had one departmental head, one principal and four PL1 educators. She had explained that the school had a problem and was battling with the Maths and English subjects for Grade 5. Miss Gasa had told her that she could not teach English and Maths. She then declared Miss Gasa in surplus because of her being unable to teach the two subjects.

[9] The applicant was present in the meeting she called. The applicant signed the attendance register as well as all other staff members who were in attendance. It was because of the curriculum of the school that the applicant had to be moved. The applicant had told her she would be happy if the Circuit Manager could place her at a high school so she could teach IsiZulu and History. When the applicant received the letter moving her from the school, she acknowledged receipt but did not sign. Another educator, Miss Sokhulu reported to the school because the applicant had been moved. Miss Sokhulu currently teaches Grade 5, but she should be teaching Grade 5 and 6. The Circuit Manager reported to Human Resources that the applicant was refusing to move from the school and that her case had been taken further. The applicant did not lodge a grievance immediately after she was informed of the move. She lodged a grievance the following year.

[10] The respondent’s second witness, Mr Mthokozisi Mpunzana, testified that he is employed by the respondent as the Circuit Manager and has 27 schools that he oversees. He is aware that the applicant was declared in excess by Intlanganiso Primary School. The principal held a staff meeting where she discussed the details of the PPN. The applicant had indicated that she was going to lodge a grievance and had asked for a grievance form which she was given. He however heard nothing about the grievance after the applicant had been given the grievance form. He gave the applicant a list of 10 schools from which to choose, but the applicant did not avail herself of this opportunity. He called the applicant to the district office and told her to report at Novimba Secondary School, but the applicant refused, telling him that she had lodged a grievance.

[11] Letters were sent instructing the applicant to report to Novimba Secondary School, but the applicant still refused to move. He had then engaged leaders of the applicant’s trade union, NATU who he met to discuss the issue of the applicant’s move. The NATU officials had requested to visit the school. He had again engaged the applicant who told him she did not want to talk to him and he must talk to her trade union. He told the applicant that he had spoken to the trade union. But the applicant still refused to move. A Circuit Management Task Team (CMTT) held a meeting where it was resolved that the applicant be moved to Indwedwe District which is not far from her current district. Another Egweni was identified for the applicant to move to, but she still refused to go to the said school. This school (Egweni) still has a vacancy.

[12] The applicant’s failure to move has created additional pressure on the department’s budget since the department has to pay an educator who is excess. A fair process was followed. A need exists for her to be moved from the school because of the school’s curriculum needs. She is not capacitated to teach Maths and English at a primary school

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[13] The issue for my determination is that of whether the employer, in declaring the applicant additional in terms of the Post Provisioning norms (PPN), followed the procedure set out in terms of the HRM Circular 50 of 2021. The applicant’s version is that the process followed by the employer in declaring her an additional educator and transferring her to Novimba Senior Secondary School was unfair. Having heard evidence, I am not persuaded that the applicant has made a case in support of this contention. There is a requirement in terms of the HRM Circular 50 of 2021 that a fair process be followed in declaring educators additional and transferring them to other schools. Evidence before me suggests that the process as outlined in the Circular was followed. While there were issues around whether the applicant was in attendance at the meeting meant to discuss the very issue, and while the minutes were not necessarily signed, it is my finding that the applicant did attend the meeting.

[14] The attendance register bears the applicant’s signature, and while the applicant denied that this was her signature, I was left unconvinced that she possibly did not attend this meeting. By her own admission during cross-examination, the meeting was about her, and the principal of Intlanganiso Primary School had engaged her on the possible move to Novimba Senior Secondary School and why it needed to occur. On being questioned on what she did when she was informed that she had been declared excess, the applicant’s response was that she had told the principal that she needed time to think. Accordingly, I am not convinced that the respondent did not follow the process as provided for in HRM Circular 50 of 2021. I find the respondent to have followed a fair process in compliance with the above-mentioned Circular.

[15] But even if I am wrong in finding that the employer complied with the procedure set out in the Circular, I would still find that such a flow, even if it were to exist, would not be sufficient to stop her intended move to Novimba Senior Secondary School given the reasons for the move which would need to be balanced against what would be in the best interests of the children in the circumstances. It is trite that in matters involving children, that interest of the children must take paramount importance in terms of Section 28(2) of the Constitution 1996. In other words, even if such a flaw were to exist, a question would have to be asked as to whether it would it be in the best interests of the learners at Intlanganiso Primary School to have the applicant remain at the school despite the intention to move her to another school? The answer is to be found in the evidence given by both two of the respondent’s witnesses, in particular the principal of the school.

[16] The primary reason that informed the school to declare the applicant in excess was because of a need, in particular the need to bring in a Maths educator. The applicant cannot teach Maths and her qualifications allow her to teach at a senior secondary school and not at a primary school. This, for me, is an important consideration. Accordingly, it would not be in the best interests of the children if the applicant were to be allowed to remain at the school. An educator who is qualified to teach Maths has since been brought in to teach the subject at the school, something that the applicant, despite her attempts to resist, cannot teach. The intended move is based on the interests of the children. In the circumstances, I find that the respondent properly applied the provisions of the HRM Circular 50 of 2021.

[17] In the premises, I make the following award:

AWARD

[18] The respondent properly and correctly applied the provisions of the HRM Circular 50 of 2021 in declaring the applicant in excess at Intlanganiso Primary School.

[19] The application is accordingly dismissed, and the Council is directed to close the file.

Monde Boyce
Panelist: ELRC