ELRC221-22/23EC

Case Number: ELRC221-22/23EC
Commissioner: Vusi Moyo
Date of Award: 17 November 2022

In the ARBITRATION between

NAPTOSA obo Accom, Cindy APPLICANT

And


Department of Education: Eastern Cape RESPONDENT

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration award is rendered pursuant to an arbitration process held virtually under the auspices of the ELRC.

2. The Applicant was represented by Advocate GD Saayman. The Respondent was represented by Mr Sakhiwo Kralo, an Official of the Department of Education in the Eastern Cape. These proceedings were conducted in English. Submissions were both digitally and manually recorded.

ISSUE TO BE DECIDED

3. To determine the correct interpretation or application of ELRC Collective Agreement 4 of 2016 on Transfer of Serving Educators in terms of operational requirements.

RELIEF SOUGHT

4. The Applicant sought the process of redeployment to be reverted back to school level and accordingly restarted.

BACKGROUND TO THE ISSUE

5. The Applicant is an Educator based in the Eastern Cape. She referred this matter to the ELRC to challenge her redeployment. The Respondent is the Department of Education in the Eastern Cape. Bundles of documents were exchanged by the parties. The authenticity and veracity of these documents was not disputed.

SURVEY OF EVIDENCE AND ARGUMENT

6. As noted above in paragraph 2, these proceedings were digitally recorded, what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration; it is by no means a comprehensive minute of what transpired in the course of these proceedings. Section 138(7)(a) of the LRA stipulates that within 14 days of conclusion of the arbitration proceedings the Commissioner must issue an arbitration award with brief reasons. What follows underneath accordingly serves as my brief reasons:

7. The first witness in the matter was the Applicant. She testified under oath that she started working for the Department as a Post Level 1 Educator in January 2008. She is currently teaching in Foundation Phase Grade 2 at a new school (Uitenhage Convent School) after she was identified to be in excess at her original school, Jubilee Primary school.

8. The Applicant testified on the minutes of the redeployment meeting held with the Principal. In this meeting, the Principal presented a teacher ratio for the different phases. Her disagreement with the rationale was that the Principal did not consider the entire foundation phase. The Applicant was aggrieved that one Educator was employed after her in 2008 and LIFO was not applied.

9. In the redeployment process the Applicant was further aggrieved that she was given a choice form in which she had to choose schools that she would prefer to be moved to. She was surprised that she was then moved to a school that was not on her nomination list in terms of clause B.6.5.3 of Collective Agreement 4 of 2016. Another key submission was that there was no recommendation from the School Governing Body as required. It was also not specified whether the redeployment is temporary or permanent in terms of clause B.6.5.5. In further violations to the collective agreement, specifically clause B.6.5.7, the Applicant submitted that she was not afforded an opportunity to make written representations. A further violation was raised in terms of B.6.5.8 whereby there was no compliance with a 30 school days’ notice.

10. The Applicant responded under cross examination that she was identified in February 2022 not November 2021. She conceded that there were two Grade 2 English Teachers and Grade 2 had the lowest number of learners. However, her point was that LIFO should have been applied to the entire foundation phase, Grade 1 – 3. If this was done, the Applicant is confident that she would not have been transferred as she was not the last-in Teacher in the foundation phase.

11. In her understanding, the transfer letter did not specify that the move was temporary therefore she regarded it as a permanent transfer to another school effectively from 25 August 2022. The Applicant further stated that the Principal was also surprised that her name ended up on the Uitenhage list as this was not on her choice form. It was further highlighted that the SBGs of both her old and the new school were not aware of her transfer.

12. The second witness was Ms Luckygirl Tiyo. She testified under oath and her evidence is summarised as follows:

13. Ms Tiyo is a Chairperson of the SGB at the Applicant’s former school, Jubilee Park Primary School. She testified that the SGB never recommended the Applicant’s redeployment to another school. She further pointed out that even the receiving school never made a recommendation to receive her. The SGB only heard about the transfer informally. She raised concerns of the SGB in that the school is currently in need of 4 teachers in the foundation phase and that since the transfer, the Applicant’s former class does not have a Teacher. For these reasons, the SGB is not pleased with the decision of the Department to remove her from the school as they are now sitting with a problem of Teacher shortages. They are thus pleading for her return.

14. Ms Tiyo conceded under cross examination that she is not au fait with the Collective Agreement as well as the Department’s processes as the SGB was never trained on such. She thus accepted that the Department can do the transfer, however her challenge was why this would be done when the school had a crisis of Teacher shortage in the foundation phase.

15. The Applicant’s case was then closed.

16. The Respondent called Mr Fadiel Jaggers as its first witness. He testified under oath and his evidence is summarised as follows:

17. Mr Jaggers is a Principal at another unrelated school. He participated in the Identification of Educators Panel as a labour representative of NAPTOSA. He testified that the Principal was given a mandate by staff to identify Teachers for redeployment of the foundation phase. In this respect, there were no objections raised. Based on this, the Principal focused on the needs of the school. Grade 2 was the only class that was combined as there was a total of 55 learners. LIFO was then applied and the Applicant was duly identified for redeployment in that manner.

18. Mr Jaggers averred that transfers do not need any SGB input as this is between the employer and the school. He added that the receiving school’s SGB does however have an input on permanent placements. He stated that this was not done as the Applicant was only placed at the receiving school temporarily for a period of 12 months. For these reasons, Mr Jaggers stated that he does not know which part of the collective agreement was flouted as the process he was involved in was fair and transparent and LIFO was their last resort. On revisiting the process, Mr Jaggers believes that there is no need to do so as it would result in the same outcome.

19. A similar case with similar facts and from the same process, ELRC975-21/22EC, was presented to Mr Jaggers under cross examination. He could not recall what was different about the matter but conceded that the same relief sought by the current Applicant was granted. Mr Jaggers conceded that with the current matter, LIFO was not the only consideration as they mainly considered the needs of the school in terms of numbers in the grade. He clarified that the classes would have been too big if combinations were made. Another problem was that the Principal could not identify which combination could be made. Mr Jaggers disagreed that the process was one-sided. He asserted that there were engagements but could not produce evidence and attendance registers thereof. Mr Jaggers revealed that the committee did not have a discussion with the Principal.

20. When confronted with the other candidate that could have been transferred, Mr Jaggers maintained that they did not compete for the same post as the committee’s focus was on the needs of the school in Grade 2. They only looked at the allocation of learners in classes. A decision on who should be redeployed could not be made and that is when LIFO was ultimately recommended by the Committee.

21. Whereas Mr Jaggers argued that the transfer was not permanent, he accepted that the transfer letter did not state that it was a temporary move. He conceded that the receiving SGB did not make a recommendation on the Applicant’s transfer. He could not answer why the Applicant was placed at a school that did not appear on her choice form. He explicated that placement nominations are not discussed at the identification meeting. After some meandering, Mr Jaggers ultimately conceded that the Applicant’s representations were not dealt with.

22. The Principal of the Applicant’s former school, Mr Patrick Korkee, testified under oath as the second witness for the Respondent’s case. His evidence is summarised below.

23. Mr Korkee testified that when the post became vacant they had to combine Grade 2 English classes so that it has 55 learners and therefore manageable. This identification was made in February 2022. Mr Korkee testified that he met with staff in November 2021. The Applicant was the last Teacher at the school and on the system whereas the other teacher started in 2006.

24. Mr Korkee conceded that maybe he made a mistake in the identification process. However, he stated that the collective agreement is not specific on whether the grade or phase should be considered.

25. Mr Korkee highlighted under cross examination that he met with the unions in February 2022 and gave them the files for guidance through the process. He stated that they advised him to look at the whole school. This was in spite of the fact that the need was at the foundation phase.

26. Significant concessions were made that:
a) Ms Ravat, was engaged after the Applicant at the school.
b) Grade 2 does not have a Teacher but a non-qualified SGB person.
c) There was no communication from the receiving school.
d) The Principal agreed that he still needs a foundation phase Teacher.

27. The third witness was Ms Belinda Muller. She testified under oath and her evidence is summarised as follows:

28. Ms Muller is currently a Circuit Manager and a former Principal. She testified that LIFO is not only for the school but also means last-in on the public school system. She attested that there was a meeting held with all staff but could not adduce evidence thereof in terms of minutes or an attendance register. Mr Muller explained that the Applicant was identified for redeployment because she had the lowest number of learners in the school. She was aware that the Applicant had lodged an internal grievance.

29. Under cross examination Ms Muller agreed that the Applicant can teach all subjects in the foundation phase, Grade 1 – 3. She denied that the Principal was bullied by the Committee nor that she had threatened the Applicant. She explained that in this matter the SGB had no role to play.

30. Ms Muller was confronted with clauses of the collective agreement that were breached: B.6.5.3; B.6.5.4; B.6.5.5 and B.6.5.6. She struggled to refute the claim of unfairness put to her about the process. Her retort was that she only acted on instructions from HR. she conceded that when it comes to representations, the collective agreement makes it clear that this is a “must” in terms of B.6.5.7. When asked about the placement, she responded that she was closely involved and that it was the DTT that made the decision. In closing she accepted that it was not fair that the Applicant was placed at a school that was not on her choice form.

31. Closing arguments were presented in writing by both parties.

ANALYSIS OF EVIDENCE AND ARGUMENT

32. This dispute was referred as an interpretation and application of the ELRC Collective Agreement 4 of 2016. It is however clear that the matter is about non-compliance and the parties have reached common ground on that aspect.

33. A number of provisions of the collective agreement that were flouted were conceded to by the Respondent’s witnesses. Evidence was adduced to specify flouted provisions. In brief, key clauses that were breached are as follows:
(a) B.6.5.3: The employer shall provide a list of vacancies and their profiles from which the educator additional to the post establishment would, as per the agreed management plan of the respective provincial department, make a choice relevant to his/ her profile for transfer.

(b) B.6.5.7: In the event none of the educator’s choices in terms of paragraph B.6.5.3 can be realised, the employer must first give the educator an opportunity to make written representations e.g. personal circumstances about the intended transfer to that specific school within 5 working days before a final decision is made.

(c) B.6.5.8: The opportunity to make representations must be given to the educator before a school governing body recommends the transfer of such educator to their school.

34. In conclusion, the respondent simply failed to apply the process as specified in the collective agreement. In the premise, I render the award as follows:

AWARD

35. The Respondent has failed to apply provisions of Collective Agreement 4 of 2016. For this reason, the decision taken by the Respondent to transfer the Applicant is set aside.

36. I therefore order the identification and redeployment process to be restarted effectively within 30 days of receipt of this award.

37. I make no order as to costs.

Dated and signed on the 17th of November 2022.

Vusi Moyo
ELRC Commissioner