ELRC 161-21/22 EC & ELRC 174-22/23 EC JOINED

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT CHRIS HANI DISTRICT (QUEENSTOWN)

Case No. ELRC 161-21/22 EC & ELRC 174-22/23 EC JOINED

In the matter between

NAPTOSA obo DEBORAH BUKELWA MDLELA Applicant

and

EASTERN CAPE DEPARTMENT OF EDUCATION Respondent

PANELIST: YOLISA NDZUTA

LAST HEARD ON: 11 & 12 SEPTEMBER 2022

DATE OF AWARD: 28 OCTOBER 2022


SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice is conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee

SUMMARY: whether the secondment and subsequent demotion by the employer constituted an unfair labour practice.

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS

1. The matter was heard on several days. The proceedings commenced on the 10th of August 2021 and after several set down days was concluded on the 12th of September 2022.

2. The applicant was represented by Mr Aaron Mhlontlo from NAPTOSA whilst the respondent was represented by Mr Thando Makina. On the 12th of September 2022 the applicant was represented by Mr Mabinda of Naptosa.

3. Initially the applicant was represented by Mrs T Mbotya Of SADTU however she then appointed new representation wherein she was represented by NAPTOSA.

4. The parties filed substantial bundles of evidence and written submissions too, these will be further addressed later in the award.


THE ISSUES IN DISPUTE

5. I am to determine whether the Respondent had committed an act that constitutes an unfair labour practice as alleged by the Applicant per same applicant’s secondments (transfer) to another school prior to the conclusion of her disciplinary proceedings and per same applicant’s demotion post -after-the disciplinary proceedings.

BACKGROUND

6. In these proceedings the applicant referred a dispute pertaining to the alleged unfair labour practice relating to the prolonged disciplinary proceedings against it and the secondment that had been enforced pending the conclusion of the disciplinary proceedings. During the hearing of the matter- between the first set down and the conclusion of the matter- the employer concluded the disciplinary proceedings subject to scrutiny and implemented a sanction (demotion) which same inspired another disputed being referred which same referral was joined to the initial matter.

7. The applicant is an employee of the respondent and at the time of referring the dispute was she (the applicant) was occupying the vacancy of principal (then in terms of PERSAL) although she had been seconded to another school executing the services of a deputy principal.

8. The applicant’s dispute pertains the secondment that was effected during her disciplinary proceedings and the subsequent sanction (demotion) that was imposed. The applicant raises a challenge pertaining both by contending that both constitute unfair labour practice.


SURVEY OF EVIDENCE AND ARGUMENT

9. Seeing that the nature of the dispute herein is one of an alleged unfair labour practice, the applicant bears the onus to prove that same unfair labour practice exists in her dispute in terms of section 186(2) of the Labour Relations Act 60 of 1995. On account of the latter, the Applicant shall lead its case first then the Respondent (employer) shall follow in opposition.

10. The Applicant called five witnesses besides herself and filed a bundle enclosing several documents. There was no dispute raised against the contents of the bundle thus same was adopted on the basis that the documents are what they purport to be. It must be placed on record that the applicant testified twice (was recalled with the consent of the representative of the employer). The summary of the aforementioned witnesses is enclosed hereinbelow.

11. The applicant (Ms Mdlela’s) evidence can be summarized as follows:

11.1 She was the principal of Thembelihle Public School from May 2019 (date when she commenced acting that vacancy) until 1 November 2019 wherein she was appointed however on or about 24 February 2020, she was placed on precautionary suspension and thus removed from that role;

11.2 She testified that on or about 12 March 2021, she was then directed to report for duty at Edlelweni Public School in a different capacity which she considered as a transfer and demotion hence her referral of the unfair labour practice.

11.3 Her term as the principal (both as acting and after the appointment) was hassle-free until her relations with the circuit manager soured because of a dispute pertaining to the recruitment and appointment of the deputy principal;

11.4 She testified that other issues pertaining to administration were tabled to the circuit manager however due to the strained relationship between herself and the circuit manager those issues were ignored by same circuit manager.

11.5 She testified that she also had issues pertaining to the school’s admin clerk’s in ability to perform her function.

11.6 She testified that the circuit manager perpetuated bias against her in that all disputes involving her would somehow have same circuit manager taking a commanding role towards the implementation of proceedings against herself whereas when she (the Applicant) was a victim same circuit manager would not approach the dispute or challenge with the same vigour.

11.7 She testified that the latter and many other issues were reported to the district director however nothing came out of same reporting.

11.8 She testified that after the appointment of one (Mrs Katywa) into the vacancy of deputy principal, there was intense friction and a lack of good interpersonal working relation between herself and same Mrs Katywa.

11.9 She testified that same fractious interpersonal working relation deteriorated to the point wherein allegations of physical assault were laid by the parties (the applicant and Deputy Principal and one Mrs Tom.
11.10 She testified that due to being frustrated with the work ethic of the admin clerk and because at some stage a firm of accountants ended up doing book keeping duties that the admin clerk.

11.11 She testified that after an altercation that lead to same being reported, she was suspended and was subsequently charged with various charges including assault, failure to submit reports, transfer (handing over) of duties and failure to attend a CCMA hearing amongst others.

12. The above witness was subject to cross-examination by the Respondents and the following was ascertained therefrom:

12.1 The applicant knew that she was the administrative head of the school and had authority to initiate disciplinary proceedings or at least insist on same disciplinary proceedings for transgressors within the school;

12.2 Thembelihle Primary School had an active SGB (school governing body) council and the applicant was an ex officio member of the SGB.

12.3 Thembelihle Primary School had also established sub-committees which include the SMT and the disciplinary committee however the discipline of educators was solely the responsibility of the employer (being the Eastern Cape Department of Education).

12.4 Although the applicant had issues of insubordination amongst others with the deputy principal (Mrs Katywa), she did not implement progressive discipline save to lodge a complaint per the disciplinary process.

12.5 The applicant’s disciplinary hearing was subject to several postponements however was ultimately resolved then outcome was delivered and a sanction imposed

12.6 The transfer (or secondment) of the applicant was per item 7 of the Employment of Educators Act however she maintained that albeit it be per the act, it was not one that fully complied with the statute because she (the Applicant) did not request the transfer.

13. The applicant also called one Mrs Pumla Ally who testified as follows:
13.1 She testified that that she was the treasure of the SGB;

13.2 The applicant enjoyed good working relations with the SGB however there were minor issues which would be resolved;

13.3 She testified that per her knowledge the applicant submitted reports however when there was one specific submission outstanding which pertained to duties due to be executed by the admin clerk. The witness placed on record that due to the admin clerk’s continuous absence and poor workplace performance the school at one stage had to request the services of an external party to assist in order for the school to comply and submit same report;

13.4 She testified that at some stage during the intense unsavory workplace environment between the applicant and the deputy (Mrs Katwya) there was a protest by parents because the latter workplace environment had resulted in an interruption of the functions of the school;

13.5 She testified that ever since the interventions to resolve the unpalatable workplace environment had sustained however, she cannot say that it was due to the transfer of the applicant away from Thembelihle Primary School because the applicant was a good principal who took great initiative to improving the standard of the school;

13.6 She testified that regarding charge 2.3 as the SGB they were merely told of the CCMA hearing and the subsequent charge to be levelled against the applicant for non-attendance of same.

13.7 She also testified that regarding charge 2.4 as the SGB they never had any issue relating to the adoption and approval of the school’s budget.

13.8 She also testified that regarding charge 2.2 she was concerned about the applicant being disciplined for Mrs Shenxane’s consistent failure to execute her duties as such they (the SGB) undertook alternative means to resolve the failure when their pleas to the employer (the district director and the circuit manager) were being ignored.

13.9 She testified that it was the SGB decision to give Mrs Nyonkana some compensation for the expenses she incurred assisting the school during her maternity leave.

14. The above witness was subject to cross-examination by the Respondents and the following was ascertained therefrom:

14.1 When asked about the allegation (and charge) pertaining to an assault perpetrated by the applicant, the witness testified that same did not occur before her therefore she could not testify as to same;

14.2 She testified that her role within the SGB also include governance of the school;

14.3 She confirmed that the applicant was appointed in 2019 when the previous principal had retired.

14.4 She confirmed that on or about December 2020, she together with other members of the SGB undertook an instruction to enlist the services of an external person to assist the school with a program that had caused the school to be warned of possible noncompliance. She went on to state that the admin clerk who was responsible for said tasks was absent when the submission was due and it was evident that same admin clerk had not attended to the duties necessary to facilitate compliance. She also placed on record that this incident of disappointment by the admin clerk was on of many instances of her continued failures.

14.5 When asked whether it was their prerogative to remunerate Mrs Nyokana, she testified that the school did not remunerate, it thanked her by helping settle her expenses incurred.

14.6 When asked about her interaction with the accountants relating to them claiming an amount for adducing bookkeeping duties (that ought to have been executed by the admin clerk) she testified that at the time she queried the claim and refused to pay it as it was services not enlisted per the mandate. She emphasized that in order for the accountants to be paid, a special SGB sitting and vote had to be taken.

14.7 When asked whether she was aware of the statutory provision in the South African Schools Act pertaining to payment of extra money (supplementary income) to a government employee, she testified that was not aware of that provision furthermore the SGB of Thembelihle did not remunerate Mrs. Nyokana.

14.8 When asked whether she was aware of the qualifications required for an administrative clerk, she testified that was true as the job description would dictate that as such the qualifications required depend solely on the job description and subsequent advertisement of the requisite job.


15. The applicant also called one Mr Lucky Ngindo as a witness, the summary of his evidence is enclosed hereinunder:

15.1 He testified that he is a parent who serves in the SGB.

15.2 When asked about the incident relating to the alleged assault (per charge 1) he testified that he did not witness such as he was present within the vicinity of the area referred to in the charge wherein the assault is purported to have occurred.

15.3 He testified that the school has a timebook (or educator’s register) which stays in the passage of the school’s front office until same book is taken by the applicant (the principal at the time) to her own office around 10am. He testified that the SGB had received a report of an incident between the applicant and one Mrs Tom that related to the latter timebook.

15.4 He also testified that during the school year (in 2020) Ms Shenxane (the admin clerk) was repeatedly absent and was struggling to keep up with her increasing workload as such it was reported to the SGB that the school was failing behind with compliance and that necessitated the procuring of assistance to resolve the issues relating to Mrs Shenxane’s failures. The latter decision to procure assistance was taken by the SGB.

15.5 He also testified that he was aware of Ms Katywa’s appointment as the deputy principal because same was reported to the SGB as such when same Ms Katywa was being introduced to the school (in assembly) there was an incident between the applicant and Ms Katywa.

15.6 He also testified that the teaching environment and social aura at the school was not pleasant during the periods of the applicant and Ms Katywa’s incidents. He testified that regardless of the latter, the applicant adduced her duty including providing Ms Katywa tools or trade and resources as the deputy principal (after her -Ms Katywa’s- appointment).

15.7. He further testified that they (the SGB) were only advised of the applicant’s suspension and subsequent transfer to Edlelweni much later as they were not consulted after the decision was taken.

16. The above witness was subject to cross-examination by the Respondents and the following was ascertained therefrom:

16.1 When asked about incidents pertaining to charge 4 of the charges that the applicant was facing (and was subsequently demoted for) he testified that to his knowledge the applicant had not intimated or victimised Mr Katywa however he cannot speak to every interaction between the two (the applicant and Ms Katywa).

16.2 When asked about the school’s finances and the SGB’s involvement in such, he testified that he can only testify to the role he played as a member of the SGB and incidents wherein he witnessed the use of same funds.

16.3 When asked why the SGB decided to pay one Ms Nyokana (the admin clerk of Lehmans Drift Primary School an amount of R5000, he testified that it was a decision by the SGB to do so because that person assisted the school to comply with a department submission and also availed herself (during her maternity leave) to assist the school with duties that the admin clerk was obliged to execute.

16.4 When referred to the South African Schools Act and provisions thereto, he testified that he was not aware of the provisions and did not know if their actions transgressed any rules/ statute.

16.5 When asked about the allocation of duties and resources to Ms Katywa, he testified that it was reported to the SGB that same was attended to timeously after the appointment of Ms Katywa as the witness.

16.6 When asked about which party enjoyed the duty to discipline educators, he testified that it was the employer (the DoE).

17. The applicant also called one Nwabisa Nyokana as a witness, the summary of her evidence is enclosed hereinunder:
17.1 She testified that she is the admin clerk of Lehmans Drift Primary School, prior to working in her current vacancy, she worked for Deloitte as a training officer teaching the schools of the Eastern Cape Department of Education about a program called SASAMS.

17.2 She testified that a training officer she used to train admin clerks of many schools and principals of same schools. One of her trainees included Mrs. Shenxane.

17.3 She also testified that upon her appointment into the Department of Education, she was identified as the ‘champion’ (an expert) of the program as such she was requested to assist schools wherein same assistance was required.

17.4 When asked about the incident that informed charge 2.2, she advised that around 13 December 2020 (the time wherein the submission was due) she was called by the applicant and the school’s SGB to assist the school with SAMS compliance. She testified that at that time she was on maternity leave and had advised the school that she was on maternity leave however when she was begged to assist she did so with the intention of it being a quick process. She testified that upon her first attempt she saw how extensive the problem was as such it required a prolonged period which she couldn’t assist in as she was on maternity leave and was traveling with an infant (new born).

17.5 She testified that when the school insisted on her to assist, she obliged as she was advised by her superiors that her commitment to her work and work ethic coupled with the expertise would assist in PMDS assessment therefore she obliged the school with the intention of the school being able to attest to same assistance during her PMDS assessment.

17.6 She testified that what she gathered was that there wasn’t another party present who could assist with the resolution of the predicament faced by the school as the admin clerk (Mrs. Shenxane was absent at the time.

17.7 She also testified that the above was not her first time assisting the school and hence referred to an incident in 2019 wherein she had to assist with a different submission.

18. The above witness was subject to cross-examination by the Respondents and the following was ascertained therefrom:

18.1 She confirmed that she would assist schools with problems of capturing, saving and submission on the program amongst others as such she referred to an example with a different school and her interventions.

18.2 She confirmed that the applicant was also trained to work on the program.

18.3 When asked whether she was paid for her assistance to the schools, she testified that she wasn’t paid and was not expecting payment as it formed part of her duties and her assistance would support her PMDS assessment scoring.

18.4 When asked whether she only assisted the school when the admin clerk was absent, she testified that she had on occasion assisted while the admin clerk was present. She reiterated that her duty included imparting knowledge and reminding parties of what was learned during training.

18.5 When asked whether her assistance constituted extra work to obtain supplementary remuneration, she testified that it was not. She reiterated her role as the SASAMS champion and her duties as an employee of the DoE.

18.6 When asked why she was remunerated by Thembelihle Primary School for her assistance during December 2020, she testified that it was not remuneration, the SGB had communicated that it was their means of thanking her and assisting her on the expenses incurred personally for assisting the school.

19. The applicant also called one Mrs. Ntombebongo Ngece, her evidence can be summarized as follows:

19.1 She testified that she was a cleaner who had been at Thembelihle since 2013.

19.2 She testified that the incident of charge 1 was not as recorded correctly in the charge sheet rather what happened was that when Mrs Tom arrived late to school and was seeking the register, she (Mrs Tom) went to the applicant’s office to find same register. The applicant allegedly met Mrs Tom at her office’s door as she (the applicant) was exiting and Mrs Tom blocked the applicant so that to refuse same the applicant from exiting her office.

19.3 She testified that during the above incident between Mrs Tom and the applicant, one Ms Katywa arrived spoke to Mrs Tom however at the same instant addressed the applicant using a derogatory term.

19.4 She further testified that after the above incident she was allegedly invited to a brief meeting by Ms Katywa in Ms Tom’s class wherein she was asked whether she had witnessed the incident between the applicant and Ms Tom and her perspective was interrogated.

20. The above witness was subject to cross-examination by the Respondents and the following was ascertained therefrom:

20.1 She testified that her perspective of the incident is different from all other parties who were present during the incident;

20.2 She confirmed her version that the incident was instigated by Ms Tom and she stood steadfast on her version that there wasn’t an assault however due to Ms Tom having blocked the exit of the applicant (from her own office). She admitted that she was not in full view of the incident but was however within the vicinity of the incident and maintained that because she didn’t hear the push she could not attest to such.

20.3 When it was put to her that she was coached to merely confirm the Applicant’s version, she denied it vehemently and placed it record that she was called to place her version of what occurred as such she was absent when the applicant testified.

20.4 When she was asked about Ms Tom’s state after the incident, she testified that she didn’t notice save to confirm that she was called by Ms Tom to testify to an assault which she did not witness. Then when asked whether she noticed whether Ms Tom was booked off after the incident she testified that she did notice Ms Tom’s absence however did not know the reasons thereof.

20.5 When it was put to her that she may have missed the assault as she was attending to her duties as that instant, she testified that if the assault occurred when Ms Tom was blocking the applicant from exiting her office, she (Ms Ngece) would have witnessed it as she was facing them (the applicant and Ms Tom) at that instance.

21. The applicant also called one Patricia Dyantyi, her evidence can be summarized as follows:

21.1 She testified that she is a Head of Department in Thembelihle Primary School.

21.2 When asked whether she had received her IQMS increment and adjustment for 2020, she confirmed that she received her however knows that the Applicant did not.

21.3 When asked whether she knew Ms Katywa, she confirmed that she knew her as the deputy principal of Thembelihle Primary School.

21.4 When asked about Ms Katywa’s appointment, she testified that Ms Katywa was introduced to her at a SMT meeting by the applicant thereafter the appointment was conveyed to the school at the assembly. She testified that the appointment was only communicated upon receipt of the appointment letter.

21.5 When asked about access to school resources, she testified that same is requested from the applicant (as a principal) however the deputy (Ms Katywa) had her own resources too.

22. The above witness was subjected to cross-examination and the following was procured therefrom:

22.1 It was put to her that Ms. Katywa was not given resources and an office by the applicant, the witness confirmed her earlier version that Ms. Katywa was given office resources and was given tasks. She further confirmed that to her knowledge Ms. Katywa was given duties and the necessary resources soon after her appointment being communicated to the school and the SMT.

22.2 When asked about the relationship between the applicant and Ms. Katywa, the witness testified that the two did not have a good relationship as there were many days wherein the two would argue.

23. The applicant’s last witness was Mr Mfundo Mxoli, a summary of his evidence herein is:

23.1 He is an educator and a member of the SGB.

23.2 He testified that the school’s attendance register would stay at the foyer until around 9am when it would be taken by the applicant to her office.

23.3 He testified that he has heard about the incident between the applicant and Ms. Tom at an SGB meeting as such they called the people who witnessed same being the applicant, Ms. Tom and Ms. Ngece however only the applicant and Ms. Ngece attended to the SGB to explain.

23.4 When asked about the incident pertaining to the appointment of Mrs. Nyokana He testified that her appointment was necessitated by the issues the school had with the admin clerk more so when same admin clerk’s failures put compromised the school by placing it in danger of not comply with the departmental requirements.

23.5 When asked if Mrs. Nyokana was employed by the school, he responded by saying that the school did not employ Mrs. Nyokana however thought it be necessary to thank her for her assistance by paying for her expenses incurred.

23.6 He testified that the school was allocated its budget in 2020 therefore the financial report must have been submitted.

23.7 He testified that he received his IQMS increment and adjustment although knew that the applicant did not receive hers then opined that had the school not submitted its development plan and related documents then they would not have received same IQMS increment.

23.8 When asked about the recruitment of the deputy principal, he testified that he formed part of the panel whilst the circuit manager (Ms. Masimane) was the resource person similarly he confirmed that the panel had been trained on recruitment processes. He testified that post the conclusion of the recruitment they (the panel) made its recommendations and after same recommendations the HOD would decide based on the recommendation. He also opined that the successful party would be advised by way of the appointment letter

23.9 When asked about the allegation pertaining to Ms. Katywa not receiving duties and resources, he testified that same is not true as Ms. Katywa was given duties and resources as soon as her appointment was communicated to the school. The witness went on to testify how Ms. Katywa was also the curriculum head.

24. The latter witness was subject to cross-examination, the following was procured therefrom:

24.1 It was put to the witness that a verbal confirmation of appointment is as acceptable as the letter of appointment to which the witness accepted once he was referred to a document within the bundle of documents.

24.2 It was put to the witness that there was a time when the applicant refused Ms Katywa and the witness maintained that soon after the announcement of Ms Katywa as the deputy principal, she was allocated her office and other stationery together with duties being allocated to her.

24.3 It was put to the witness that the actions of the SGB by remunerating Mrs Nyokana whilst she was a government employee was a transgression of the South African Schools Act and the witness confirmed that the SGB did not remunerate Mrs Nyokana.

25. The respondent called 4 witnesses, namely Mr Nicolas DeBruin (the District Director), Ms Tom, Ms Katywa and Ms Shenxane. The Respondent also filed a bundle enclosing several documents. Considering the condition adopted in lieu of the applicant’s bundle the same basis was adopted regarding the bundle of the respondent. The summary of the aforementioned witnesses is enclosed hereinbelow.

26. Mr DeBruin testified as follows:

26.1 He is the district director of Chris Hani West;

26.2 He testified that had received reports of the commotion at Thembelihle Primary School then he sanctioned a meeting with the applicant, Ms Katywa and the union (SADTU) to be chaired by an official within his office however when that failed he then directed several officials to intervene by conducting the necessary proceedings to resolve the issue amicably.

26.3 He testified that when the attempts failed and the commotion between the applicant and Ms Katywa worsened to the point of effecting education, he directed employee relations to intervene that resulted in the precautionary suspension of the applicant.

26.4 He testified prior to the expiration of the applicant’s precautionary suspension, he and other officials of the Eastern Cape Department of Education elected to transfer the applicant to another school in order to separate the parties to the commotion.

26.5 He testified that at all times he included the applicable officials (including the DCES- Labour Relations).

27. The latter witness was subjected to cross examination and the following can be procured therefrom:

27.1 Prior to charges being preferred against the applicant, a portfolio committee was convened and a decision therefrom was that charges be preferred against the applicant per an investigation report.

27.2 He confirmed that immediate action was required as such the separation of the two parties was necessary. He confirmed that same immediate action was concluded from meetings that included labour (unions) and Labour Relations officials.

27.3 He confirmed that there was an investigation conducted prior to disciplinary steps being instituted and same investigation directed that charges be preferred against the applicant.

27.4 It was put to the witness that the applicant was not transferred rather the witnesses (through other officials) executed an irregular secondment of the applicant to which the witness confirmed that the applicant was placed on a secondary placement.

27.5 When the witness was asked whether they had secured the consent from other school regarding the applicant’s impending secondment, the witness testified that he had spoken to the leadership of Edlelweni Primary School including its SGB. When it was put to the witness that the secondment was in contravention of the Employment of Educators Act, the witness stood firm that he and the employer complied with all statutes in their actions.

27.6 When it was put to the witness that Ms Masimeni (the EDO) had communicated Ms Katywa’s appointment verbally before the appointment letter was received, the witness placed on record that he was unaware of the latter action by the EDO.

27.7 When it was put to the witness why the separation of the parties to the commotion did not also include the transfer of Ms Katywa, the witness responded by saying that the practical execution was in the hands of the DCES Labour Relations as his directive was the matter to be resolved to ensure that normal school activities and business would resume.

27.8 when questioned of his interpretation of the telephonic notification in relation to a confirmation of appointment the witness testified that the letter of appointment is important before an appointee commences service and that the telephonic notification is merely communication to the appointment.

28. The respondent also called Ms Nolulo Tom as a witness, the summary of her evidence is herein below.

28.1 She is an educator at Thembelihle Primary School;

28.2 She testified that the incident between herself and the applicant because she arrived late for work. She testified that upon her arrival a work, she noticed that the register was not in its normal place therefore she then made her way to the applicant office to procure the attendance register however when she tried to do so the applicant refused as such she (Ms Tom) was compelled to enforce her way by blocking the applicant from exiting her office.

28.3 She testified that an altercation ensued between her and the applicant that resulted with her being assaulted by the applicant.

28.4 She testified that Ms Katywa witnessed the assault as such after the assault Ms Katywa comforted her.

28.5 She also testified that soon after the assault she sought permission to seek medical attention which resulted in her absence from work for atleast two (2) weeks.

29. The latter witness was subjected to cross examination and the following can be procured therefrom:

29.1 She testified that she was late and had infact informed Ms Katywa as her immediate supervisor of same latecoming;

29.2 She testified that Ms Katywa played a dual role at the school, she was both a department head and the deputy principal;

29.3 She also testified she had reported the incident to the chairperson of the SMT however did not get any satisfactory outcome;

29.4 When asked if this was the first time she was late (referring to the causa of the incident), the witness testified that it was not. She also mentioned that this was the first time wherein she could not find the attendance register when arriving late.

29.5 The witness refuted having called or spoken with Ms Ngece about what she witnesses after the incident.

29.6 When asked about her doctors visit after the incident and what the diagnosis thereof was, the witness testified that she had high blood pressure yet her Dr had diagnosed her with PTSD. She couldn’t explain it save to say she was also referred to a psychologist. When referred to her testimony as recorded in the report of the disciplinary proceedings, she conceded that she had not mentioned this testimony before.

30. The respondent also called Ms Katywa, before I record her evidence as summarized. I must place on record that she had objected to Mr Nhlontlo representing the applicant during her testimony because same Mr Mhlontlo had consulted with her about the same matter. Mr Mhlontlo was then excused and Mr Mabinda was permitted to represent the applicant during the testimony of this witness. A summary of this witnesses testimony is herein below:

30.1 She testified that she was the deputy principal of Thembelihle Primary School.

30.2 She testified about the alleged incident between the applicant and Ms Tom and placed that she as the immediate supervisor of Mr Tom had gone to the applicant to advise her (the applicant) of Mr Tom’s lateness with the intention of ensuring that Ms Tom would be given an opportunity to sign the register upon her arrival.

30.3 She also testified that immediately prior to the incident she was in the office of the applicant discussing several matters including the lateness of Ms Tom wherein a verbal argument ensued, during same argument Ms Tom arrived and begged the applicant if she could complete the attendance register. She also testified that during the same time, there was a parent nearby as such she remembers Ms Tom asking the applicant to be aware that there was a parent nearby so that to avoid the parent witnessing the incident.

30.4 She testified that the applicant pushed Ms Tom three times and allegedly asked Ms Tom “what are you going to do”.

30.5. She testified that at the time, only herself, Ms Tom and the applicant would have witnessed the assault (pushing) as every other person was not within the immediate vicinity of and have full view of the incident to constitute a good point of view. She also refuted having called Ms Ngece to request that she testify.

30.6 She testified in support of disciplinary charges preferred against the applicant.

30.7 She testified of how the relationship between her and the applicant had deteriorated and referred to the treatment she allegedly endured from the applicant including alleged incidents of humiliation in the presence of senior departmental officials.

30.8 She testified that the deterioration in their relationship affected other educators and also caused a protest at the school as it affected school activities.

31. The above witness was subjected to cross examination, the following was procured therefrom:

31.1 She had been an educator for atleast 27 years.

31.2 She confirmed that her relationship with the applicant prior to her appointment as the deputy principal was fine.

31.3 When asked about the attendance register that is the causa of the incident involving Ms Tom, she testified that it normally remains in the foyer (near reception) from 7:30 until any particular time it is taken to the applicant’s office. She testified that the time of its transference from the foyer (wherein it is easily accessible) to applicants office is no specified time.

31.4 When asked about the incident and her specific position during same, she testified that she was in the passage and not in the office. She also testified that Ms Ngece was also in the passage. When referred to the record of the disciplinary proceedings more specifically how her evidence was recorded she refuted how same was recorded.

31.5 When asked about her tenure as the deputy principal, she testified that she commenced same upon being advised of her successful appointment by the circuit manager (one Ms Masimeni). She confirmed that at the time she had not secured the letter of appointment however because the communication was addressed by a senior, she accepted same.

31.6 She testified that although she received resources they came at the convenience of the applicant.

31.7 When asked she was not suspended or even transferred with the applicant away from Thembelihle Primary School, she said she did not know as it was a decision made by far superior officials of the employer.

32. The Respondent also called one Thumeka Shenxane as a witness, her testimony is summarised hereinbelow:

32.1 She testified that she is the admin clerk of Thembelihle Primary School and has been employed with the Eastern Cape Department of Education since 1996;

32.2 She testified that she had endured ill-treatment at the hands of the applicant as such she made reference to incidents of such ill treatment.

32.3 When asked about the school having to enlist services of another person to attend to task that formed part of her exclusive job description, she testified that there was no need for the school to undertake such an action as she was present at the school when same person was attending to those tasks as such during that period, she would do other work and assist educators with other tasks. She also testified that she interpreted that action by the applicant as demeaning.

32.4 She testified that considering she had been working at Thembelihle Primary School for many years, she had worked with many principals as such the applicant was the first principal to victimise her and treat her in such an undignified manner.

33. The above witness was subjected to cross-examination and the following was procured therefrom:

33.1 When asked about her responsibilities in lieu of her job description, she testified that she had full knowledge of same.

33.2 She testified that according to her knowledge, the applicant had been transferred to Edlelweni Primary School as she was advised by the District Director of same transfer.

33.3 When she was asked whether she knew of the applicant’s demotion and subsequent placement at Nomesi Full Service School, she said she had no idea of such.

33.4 When asked about her duties in relation to the submission that almost put the school in a precarious position, she testified that she was not negligent however she had difficulties with the system. She also testified that the files necessary for the submission had at one point gone missing. She also testified that she could not advise how many times she had successfully recorded information on the system because there were periods wherein she was excluded from using the system.

33.5 She testified that after her appointment, the applicant did not do much teaching.

33.6 When asked about her PMDS and whether same evaluation was conducted, she testified that it was only conducted by the principal preceding the applicant as the applicant refused to do same evaluation during her tenure. She however confirmed having received her increment adjustment.

34. The respondent did seek to call another witness however on the last date of set down same witness was not properly secured by subpoena hence same witness testimony did not form part of these proceedings.

35. At the conclusion of the witness testimony, the parties were directed to file submissions in support of their respective arguments, same submissions were due by the 21st of September 2022. I shall hereinunder place a summary and analysis of same submissions.

ANALYSIS OF THE TESTIMONY AND SUBMISSIONS

36. As stated above, the parties filed written submissions in support of their respective cases. The applicant submission can be summarized as follows:

36.1 The applicant referred an unfair labour practice as per section 186 (2) of the LRA in relation to the suspension, disciplinary hearing and subsequent sanction.

36.2 The applicant argues that the employer committed an act of unfair labour practice firstly by transgressing the Employment of Educators Act 76 of 1998 (hereinunder referred to as the EEA 76 of 1998) in that both the suspension and transfer was not executed in compliance with the act.


36.3 The applicant was placed on precautionary suspension as early as 24 February 2020 and was only directed of the lifting so same suspension on the 4th of March 2021.

36.4 Secondly as from 15 March 2021 she had to serve in the position of deputy principal at Edlelweni Public Primary School as a post level educator and this decision was implemented without due process having been followed.


36.5 The applicant seeks that she be reinstated as neither the prolonged precautionary suspension nor the subsequent transfer were executed in compliance with the act. The applicant referred the commission to Chapter 5 Schedule 2 of the EEA 78 of 1998 wherein the act directs the maximum period of time one may be suspended and how one may be transferred in cases of disciplinary proceedings.

36.6 The applicant then referred to case law arguing that the employer has failed to comply with the statutory requirements thus its actions constitute unfair labour practice.

37 The respondent’s submissions can be summarized as follows:

37.1 The applicant committed acts of misconduct and further committed acts of mismanagement;

37.2 Her acts of misconduct satisfied the definition per section 18 (1) of the EEA 76 of 1998.


37.3 If we contextualise the chargers in respect of the events (and incidents) before and during the investigation, one will be convinced of the guilt;

37.4 The witnesses testified as to the incidents that established the various elements of each charge;


37.5 Evidence was given as to how same applicant abdicated her duties although she was in a position of authority, she was well aware of her obligation and duties per section 16A of the South African Schools Act

37.6 All the evidence directs why the suspension and transfer of the applicant was necessary during the investigation furthermore the employer had no other alternative but to demote the applicant after the disciplinary proceedings.


APPLICATION OF LAW TO THE SUBMISSIONS

37. A dispute wherein an applicant alleges unfair labour practice departs from section 186 (2) of the LRA once same form of unfair labour practice alleged is identified.

38. It is common cause that the applicant not only challenges the sanction resultant from the disciplinary proceedings, she also challenges the suspension and transfer instituted during the investigation pending her disciplinary action. For the reason of the latter I shall address the two challenges separately. I must state that the applicant seeks reinstatement for both.

39. I must reiterate that considering that the dispute is an unfair labour practice dispute, the applicant bears the onus to prove the existence of same.


40. The applicant called several witnesses to attest to the charges preferred against her and relied on her own testimony pertaining the transfer. I shall herein under ruminate about the testimony of said witnesses.

40.1 Ms Ally’s testimony was clear and concise. I found her to be a credible witness as her evidence confirmed without hesitation (or contention) how the applicant and the school’s SGB managed the finances of the school. This was confirmed by Mr Ngindo and Mrs Dyantyi.

40.2 I found Mr Ngido’s testimony to be credible as he was honest in what he observed whether that be the relationship between the applicant and Ms Katywa or what he (as a member of the SGB) observed regarding the administration of the school including how the applicant approached issues with Mrs Shenxane.

40.3 Mrs Ngece cannot be considered a credible witness as she often changed aspects of her evidence. Similarly she testified to having been in the vicinity of the altercation between Ms Tom and the applicant however admitted that she was not in full view of the incident. Correspondingly she maintained that there was no push, that on the basis that she did not hear anything. One cannot put much weight on such evidence.

40.4 I found Mrs Nyokana to be a credible witness as she testified without quivering of her role when she assisted the school in complying with the submission per SASAMS. She testified of her involvement including the amount she had received from the school whether it be interpreted as remuneration, an incentive or a payment for costs incurred is a matter of interpretation.

40.5 I found Ms Tom to be a credible witness as she testified of the incident between her and the applicant. I observed her recollection of the incident and the sincerity in how the incident still haunts her to date.

40.6 Mr DeBruin gave his account of his involvement in the incident however his testimony required corroborating which same was unavailable at the time of testifying. His testimony wherein it referred to other people however will have to be considered as hearsay evidence.

40.7 The evidence of Ms Katywa was difficult to assess as same evidence had contradictions though some of her evidence was corroborated by Ms Tom and Ms Shenxane. The evidence of Ms Katywa cannot be considered as credible considering the contradictions and how some evidence changed as and when each inconsistency was identified.

40.8 I considered Ms Shenxane to be a credible witness. As she presented her evidence in a manner that was consistent and did not have any contradictions even after being subject to strong cross-examination.

40.9 With regards to the credibility of the applicant, Mrs Mdlela. I found her difficult to assess as her testimony often required corroboration which same corroboration was not forthcoming from other witnesses.

41. My analysis of the viva voce evidence is that some of it marred with inconsistencies and contradictions as such I must consider same per the Law of Evidence Amendment Act 45 of 1998.

42. At the epicentre of this application lies a dispute of the incidents that resulted in the action undertaken by the employer (the respondent) against the employee. Correspondingly we cannot avoid the burden carried by the applicant in such matter. In Exxaro Coal (Pty) Ltd v Chipana and Others (JA161/17) [2019] ZALAC 52; [2019] 10 BLLR 991 (LAC); (2019) 40 ILJ 2485 (LAC) (27 June 2019) the courts held that hearsay evidence cannot be admitted under it meets the muster of section 3 (1) of the Law of Evidence Amendment Act 45 of 1998.

43. An application of the above test stands to nullify contradicting versions. What worsens the proceedings is the influx of unsubstantiated claims by the various witnesses that only achieved a further complication of the matter. Notwithstanding the above, I shall address the culmination of evidence and arguments by dealing with the suspension first, then I shall address the disciplinary proceedings then I shall address the sanction last.

44. The applicant argued that the respondent in executing a precautionary suspension and further prolonging same suspension was an act of unfair labour practice. Same applicant argued the latter in its submissions however made a brief address of same in its testimony.

45. The applicant’s submissions argued and claimed that there was non-compliance by the respondent with statute however fails to explain the non-compliance in that was same non-compliance was merely not following the directive or regulation in the statute or whether same non-compliance was a direct and deliberate transgression. The applicant’s arguments pertaining to interpretation of the statue fails because full consideration of the dictum and judgement of Stokwe v MEC Department of Education, Eastern Cape [2018] ZACC 3. the court considered the factors in Morenyane to determine if the delay was unreasonable and same court directs that these factors are holistically considered. If we are to consider the latter together with the principles of substantial compliance decision in Weenen Transitional Local Council v Van Dyk which considered the application and interpretation of delegated legislation. The court places that where there is an allegation of non-compliance with legislation by an authoritative party, said non-compliance must be clearly established (my interpretation). Further to the above it was not challenged that between the date of suspension and the date of the disciplinary proceedings there was an investigation and other internal proceedings undertaken by the employer.

46. It is evident from the evidence such non-compliance has not been clearly established by the applicant which same applicant carries the onus to prove in such matters. Although the applicant attempted to argue this in their submission, it was not pleaded in evidence thus cannot be relied on in argument.


47. Having regard to the above and the concessions in the submissions the suspension was justified and cannot be considered as an unfair labour practice.

48. I now turn to the proceedings and the various charges preferred against the applicant.
48.1 The applicant was charged with assault which same charge relied pn viva voce evidence. The alleged victim of same assault was Ms Tom who testified how she was assaulted and this was corroborated by Ms Katywa. The applicant refuted the assault on account of her understanding and called one witness (Mrs Ngece) to corroborate her understanding however same witness could not fully attest to whether or not there was an assault as her perspective of the incident was not of one who witnessed the incident fully. Furthermore same Mrs Ngece’s testimony had inconsistencies when she testified as to this specific incident. It stands to determine that the probability of the assault having occurred is quite high and the applicant being guilty of having committed this act of misconduct as defined by Section 18 (1) (r) of the EEA 76 of 1998.

48.2 The applicant was also charged misconduct in terms of section 18 (1) (f) of the Employment of Educators Act 76 of 1998 (as referred to as the EEA 76 of 1998 herein above) however again the elements of the charge are not established by the employer. The applicant argued that there wasn’t an ‘unjustifiable prejudice to the administration’. The employer presented evidence pertaining to the applicant’s mismanagement of her inferior staff regarding their compliance with their job descriptions. The applicant argued proved on a balance of probabilities that she cannot be considered guilty of all the incidents referred to in this charge. This charge has three facets (incidents) as such although she cannot be guilty in terms of the first, she did concede to the other two, I shall address same hereinbelow.

48.3 The applicant was also charged misconduct in terms of section 18 (1) (l) of the Employment of Educators Act 76 of 1998 (as referred to as the EEA 76 of 1998 herein above). Evidence was placed before to consider whether the applicant’s insistence for a written letter of appointment constituted ‘poor or inadequate performance’. Having considered that evidence, I determine that on a balance of probabilities, her actions were justified as such she could not be considered guilty of this charge.

48.4 The applicant was also charged misconduct in terms of section 18 (1) (u) of the Employment of Educators Act 76 of 1998 (as referred to as the EEA 76 of 1998 herein above) and evidence was presented. The applicant attempts to disprove her guilt in this charge were unsuccessful, the respondent’s (Employer’s) witnesses and evidence succeeded on a consideration of a balance of probabilities.

49. I must record that the applicant did concede to two subparagraphs) of the charge 2 albeit an explanation was provided. Same explanation was not satisfactory to evade guilt thus in terms of these two she is guilty of misconduct in terms of section 18 (1)(f) of the EEA 76 of 1998.

50. I now turn to the sanction imposed on the applicant. The applicant argued that she was demoted, and she seeks that same be reversed and she be reinstated. Demotion is a disciplinary sanction imposed when an employer is avoiding dismissal of the employee, herein we refer to Solidarity obo Kern v Mudau and Others (JR 987/05) [2007] ZALC 131; [2007] 6 BLLR 566 (LC) (19 January 2007) wherein the courts considered what constituted demotion and whether same was reasonable. Also if we reflect on Van Niekerk v Medicross Health Care Group (Pty) Ltd [1998] 8 BALR 1038 (CCMA), wherein the CCMA found that, since demotion is a disciplinary action, ‘consultation and counselling should take place before the demotion is implemented. In the absence of a fair reason and fair procedure, the demotion was held to amount to an unfair unilateral alteration of terms and conditions of employment.

51. Departing from the latter premise, we consider the reason for the applicant’s demotion vis a vis the relief sought whilst being guided by section 193 (4) of the Labour Relations Act 66 of 1995. The employer has placed reasons for the applicants removal from Thembelihle Public Primary School and based on the outcome of her disciplinary hearing, reasons for her demotion however same were only premised on her being found guilty of all the charges preferred against her. Considering that the de novo consideration of the disciplinary hearing found otherwise it stands that the demotion must be reconsidered. The integral question is whether the applicant being guilty of misconduct in terms of section 18 (1)(f), (r) and (u) justifies her demotion. The employer argued and its witnesses testified how the school was managed during the applicant’s reign as principal as such there was testimony also from the applicant how the environment during her reign caused protest action. It begs the question whether the applicant remains entitled to the relief sought.

52. It must be reiterated that the applicant bears the onus to prove that the actions of the respondent constitute unfair labour practice. The evidence of the applicant was insufficient to establish unfair labour practice. The employer (the respondent) could justify its reasons for transferring the applicant from the situation that presented itself at Thembelihle Public Primary School although such decision is regarded as non-compliance by the applicant with item 6 of Chapter 5 Schedule 2. Correspondingly the employer addressed the reasons for the sanction imposed after the applicant’s disciplinary which is justified.

53. Lastly, the applicant failed to dispose of its obligation in establishing that there was an act of unfair labour practice. In Solidarity obo Kern v Mudau and Others (JR 987/05) [2007] ZALC 131; [2007] 6 BLLR 566 (LC) (19 January 2007) the courts considered what constituted demotion and whether same was reasonable in determining whether a demotion constituted an unfair labour practice. Applying the teachings of the above case to the applicant’s referral, it stands to conclude that the sanction imposed was most suitable.

54. In the premise of the above I make the following award.

AWARD

55. The employer has not committed an act of unfair labour practice in so far as the suspension of the applicant. Similarly, the applicant has committed serious acts of misconduct which justify the ultimate decision of the Respondent.

56. The applicant has failed to establish the existence of an unfair labour practice therefore, the application is dismissed.

Yolisa Ndzuta
Panelist: ELRC