ELRC689 -22/23

IN THE ELRC ARBITRATION
BETWEEN:

Shadrack Ndou Applicant
and
The Department of Education: Gauteng Province Respondent

ARBITRATION AWARD

Case Number: ELRC689 -22/23
Arbitration date: 24 February 2023 and 26 April 2023
Date of Award: 19 May 2023

Pitsi Maitsha
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za



DETAILS OF HEARING AND REPRESENTATION

1. This matter was held over 2 days. The first arbitration hearing was held on 24 February 2023. A final arbitration hearing was held on the 26th of April over Zoom. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.

2. The applicant is Shadrack Ndou, he was in attendance, and he was represented by Solane Mlambo, the Site Steward from SADTU. The respondent is The Department of Education: Gauteng Province and was represented by Ms. Thato Morewane, assistant director; Labour Relations Officer.

3. The parties gave the evidence under oath. The proceedings were held on Zoom to observe the Covid-19 regulations. The proceedings were digitally recorded using the recording facility available on Zoom.

ISSUE TO BE DECIDED

4. I am required to determine whether the conduct of the respondent to transfer the applicant for a period longer than sixty (60) days constituted unfair labor practice. If so, make an appropriate award.

BACKGROUND DETAILS

5. The parties held a pre-arbitration meeting on 15 February 2023 and agreed on the following in terms of the Pre-Arbitration Minutes:
5.1. In terms of common cause facts:
5.1.1. The respondent employed the applicant on 1 September 2009 in the capacity of the Principal and he was appointed at Asteri Primary School. He is earning a gross salary of R55 026,87 per month.
5.1.2. The applicant was charged with the following five counts of miscount:
i. It is alleged that during the year 2019 while on duty at or near Asteri Primary School, you conducted yourself in an improper, disgraceful, and unacceptable manner in that you sexually harassed Tsholofelo Molefe an Educator from the same school by hugging tightly whilst breathing heavily with your penis pressed against her vagina. Given the above action, you are thus charged with misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998.
ii. It is alleged that during 2020 while on duty at or near Asteri Primary School, you conducted yourself in an improper, disgraceful, and unacceptable manner in that you sexually harassed Tsholofelo Molefe an Educator from the same school by hugging her pinned her against the white cupboard whilst rubbing your penis against her vagina. Given the above action, you are thus charged with misconduct in terms of section 18(1) (q) of the Employment Educators Act, 76 of 1998 as amended.
iii. It is alleged that during the year 2021 while on duty at or near Asteri Primary School, you conducted yourself in an improper, disgraceful, and unacceptable manner in that you sexually harassed Tsholofelo Molefe an Educator from the same school, by putting your hands underneath her skirt and rubbing her buttocks. Given the above action, you are thus charged with misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 as amended.
iv. It is alleged that between 2019 and 2021 while on duty at or near Asteri Primary School, you conducted yourself in an improper, disgraceful, and unacceptable manner in that you sexually harassed Tsholofelo Molefe, an Educator from the same school, by coming to her side of the table took her hand and hold it tightly and rub it up and down on your penis. Given the above action, you are thus charged with misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 as amended.
v. It is alleged that during the year 2021 while on duty at or near the School, you conducted yourself in an improper, disgraceful, and unacceptable manner in that you sexually harassed Tsholofelo Molefe an Educator from the same school, by hugging her inappropriately and tried to kiss her and putting your tongue in her ear. Given the above action, you are thus charged with misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 as amended.”

6. He was not found guilty on all charges. A disciplinary hearing was held first on 28 July 2022. A second one was held on 5 September 2022. The third one was held on 19 September 2022, 20 October 2022, 3, 4, and 14 November 2022. The outcome was issued on 15 December 2022.
7. The HOD approved the return of the applicant to the school with immediate effect on 31 January 2023. The applicant has returned to the school.

8. He was transferred from the school to the Johannesburg East District on 15 March 2022 and was due to expire in sixty days. The Department also exceeded 90 days for a disciplinary hearing.

9. The parties recorded the following facts to be in dispute:

10. The precautionary transfer took longer than sixty days, and the respondent did not adhere to the rules and regulations of the precautionary transfer.

11. Aggrieved by the decision to transfer him exceeding a prescribed period of 60 days, the applicant, referred the dispute of unfair labour practice to the ELRC. He is seeking compensation.

THE EVIDENCE OF THE APPLICANT

12. He testified that on 15 March 2022, he received a from the Department of Education that he must come to the District. He went to the District office where he was given a precautionary transfer letter. He was told to report to the district for 120 days without any charge sheet.

13. He testified that he was told that the process would be finalized within 90 days. He nearly committed suicide because the matter was published in the Sunday Times newspaper. In the newspaper, he was referred to as “sexpert Principal”. He was given a task to go to school. He forfeited pay progression in 2022.

14. He testified that no GDE policy relating to sexual harassment was followed. He was tasked to go to the departmental meetings, and district meetings with his car, no subsidy was given. The department charged him with newspaper reports.

15. He testified that as Principals, they must be appraised every year. One must meet certain standards. He did not go through this process of 3%; it boosts his salary. He has been prejudiced against transport reimbursement money for 2021 and 2022.

16. He further testified that on 18 July 2022, they sent a letter to the respondent, but there is no response. The second letter was on 17 August 2022 requesting the upliftment of the transfer. The response that was sent to it on 9 March 2020, suggested that there was no meeting.

17. He also testified that after 120 days there was no postponement by the chairperson. He testified that the transfer letter does not he would be office based.
When it was put to him under cross-examination that he also contributed to the delay, he testified that the department did not comply with its policy. The relationship between himself and the Principal, Mr. Lefa Kgomo, is professional, and that he is his Principal. He testified that he did not assist the Principal during a disciplinary hearing against the Principal, but he was assisting a disciplinary hearing. He was a member of the SGB. He confirmed that he was a witness to the Principal. He testified that he knew that the Principal was not involved in this matter because he did not call him to indicate that he was going to charge him. He did not find a letter from the principal stating that he was going to charge him. He further testified that he had a meeting with the Departmental Head and the Principal about the matter, wherein he was given the impression that they did not see any wrongdoing on his side. He testified that the Principal told him that he was not aware of the charges. He testified that the Circuit Manager testified during a disciplinary inquiry that he sent the Principal an SMS to the Principal, not the Deputy-Principal, Mr. Ledwaba. He testified that the testimony that Mr. Ledwaba informed the staff of the visit by the Circuit Manager which will be on Monday is not true. He further testified that he did not know the testimony by the HOD, Mrs. Kgodu, that the Circuit Manager was at the school on Monday, 2 March 2020 to address the SMT about the visit which was to start on Tuesday 3 March 2020. He also testified that on Monday 2 March 2020, there was no such briefing that the Circuit Manager was coming on Tuesday 3 March 2020and the reason for the visit was to monitor written work starting from Grade 8 to Grade 12 and that three books would be required per Grade, per subject. He testified that the relevant person is Mam Kgodu, or the Principal or Deputy Principal. Mam Kgodu signed the books on 13 March 2020 as per their agreement. They were not signed by the Principal as they were already signed by the Circuit Manager on 4 March 2020. He testified that he showed the Circuit Manager the class to collect the books for Grade 10 on 4 March 2020. The Circuit Manager never asked him about Grade 11 books. He testified that Mrs. Kgodu came to him informing him that the Circuit Manager was awaiting Grade 10 learner's books for monitoring, and he told her that he was still busy marking the assignment. He further testified that there is no such thing as he told the Circuit Manager that he was not going to give the Circuit Manager the books to see them, but they can only be seen by the HOD and the Principal. The Circuit Manger did not request him to see the books in the presence of the HOD, instead, he requested him to accompany him to Grade 10 classes. Mam Kgodu was not with them when he and the Circuit Manager block D classes, but the Circuit Manager personally collected the books. He testified that it was the first time in his teaching experience that the Circuit Manager comes to see the books of a teacher with a recommendation of a charge being written already. He testified that the Grade 11 books were supposed to be checked on 5 March 2020, but the Circuit Manager did not come. On 5 March 2020, he was not asked to submit the books.

18. He testified that on 4 March 2020, he did not refuse to give the HOD, Mrs. Kgodu the Grade 10 Mathematics Literacy books, but they were requested by the Circuit Manager. He testified that the Circuit Manager came to the school on 4 March and 6 March 2020, not on 5 March 2020. He did not refuse to give Mrs. Kgodu on 5 March 2020. He also testified that on 5 March 2020, the Circuit Manager did not demand Grade 11 books from him because he was never at the school.

THE APPLICANT’s CLOSING ARGUMENTS

19. Mr. Solane Mlambo stated that in terms of the Employment of Educators Act, 76 of 1998 as amended “the EEA”, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer in the event an educator is suspended or transferred. He indicated that the “LRA” provides that disciplinary processes must be concluded in the shortest time possible. He argued that the GDE failed to prove that there was a substantially fair reason for delaying a disciplinary procedure, which must be vied amounting to an unfair labour practice. He indicated that the respondent failed to conclude the disciplinary hearing within one month of transfer. The presiding officer was not appointed to postpone the disciplinary hearing which exceeded 90 days from the date of transfer and the disciplinary hearing was not concluded within 90 days, but only took place after 120 days. He referred to the Constitutional Court judgment of Stokwe v Member of the Executive Council: Department of Education, Eastern Cape, and Others (CCT33/18) (2019) ZACC 3; 40 ILJ 773 (CC). He also argued that Mr. Selowa failed to demonstrate the respondent’s substantive reasons for delaying the disciplinary process, hence they caused psychological and emotional strain on the applicant. He relied on Riekert v Commission for Conciliation, Mediation and Arbitration and Others (JR686/03) (2006) ZALC 90; (2006) 4 BLLR 353 (LC).



THE RESPONDENT’s EVIDENCE

THE EVIDENCE OF PATRICK SELOWA: THE DIRECTOR: OF LABOUR RELATIONS

20. He testified that they have received a complaint from Johannesburg East District of sexual harassment leveled against the applicant. The district suggested that the applicant be placed on precautionary transfer. He received the report and indeed he agreed that the applicant can be placed on precautionary transfer.

21. He testified that at the time they received the preliminary investigation report from Motsiri Hlapolosa, who resigned in December 2020. Unfortunately, he had already passed on. The applicant was served with a precautionary transfer on 15 March 2022. In terms of the school calendar for 2022, the schools went on recess until 4 April 2022, which had an impact on the finalization of the investigation because the witnesses were on school holidays. An investigation was not going to be done if the witnesses were on holiday. They received an investigation report and determined that there is a case to answer.

22. The notice of charges was signed by the Head of Department on 6 June 2022. His office appointed the chairperson to chair a disciplinary hearing. The department could only manage to serve the applicant with the notice of a disciplinary hearing on 13 July 2022. The hearing first sat on 25 July 2022. He checked the report and he found out that the applicant requested legal representation in that hearing and the matter was postponed to 19 September 2022. The Department also requested more time to prepare for the case. The applicant was allowed to secure a representative from the trade union or fellow employee.

23. The applicant’s representative requested more time to familiarize himself with the facts of the case. The applicant was not found guilty of five allegations leveled against him. There was a strong ground to effect precautionary transfer as the allegations were serious in nature.

24. He testified that the department receive the report in January 2023 and the HOD signed off on 21 January 2023. According to the outcome, the precautionary transfer was immediately uplifted on the basis that the hearing was concluded, and the applicant was not found guilty of all allegations.

25. He further testified that there was a reason for placing the applicant on the precautionary transfer because he was facing serious allegations of sexual harassment by someone working with him.

26. He testified that concerning the period, there was an investigation that culminated in charges being approved in June 2022.

27. He testified that the issue of traveling, if an employer assigned responsibility or duty that will require an employee to travel from one workstation to another, the employer, as part of its responsibility, may provide an employee with a State vehicle for him or her to perform that function. There are instances where the employer will require him or her to utilize his or her vehicle to go to different workstations or in the execution of official responsibilities. It appears to him that when the applicant was precautionary transferred to the district, he was requested by the district to utilize his vehicle to travel to different workstations and he was not paid for it. There is a process in the Department, this issue has nothing to do with the precautionary transfer. Every employee would have used his or her vehicle in the execution of official responsibilities. An employee is expected to submit monthly a claim called subsistence and traveling claim, which will indicate the total number of kilometers that an employee would have traveled. A claim is submitted to the Supervisor for approval and once it has been approved, it will go to Finance to process payment.

28. He testified that the applicant must lodge the claim and if it is not paid, lodge a grievance. On the Performance Management Development Systems (PMDS), the process can be done at the district level even if he was on precautionary transfer. The performance assessment must be submitted and lodge a grievance and declare a dispute with the ELRC in case the grievance was not in his favor. He could have enquired with the district to find out as they have come to the end of the year how will they conduct a performance assessment; the claim is without merits and any substance.

29. He testified under cross-examination that it was not his duty, but Ms Kgodu’s duty. He testified that the teachers should submit their books every month. He checked the books between the month's end and the third. He confirmed that on 3 the Departmental Head, Mam Kgodu, said she will be reminding the applicant of the books.
THE RESPONDENT’S CLOSING ARGUMENTS

30. Ms. Thato Morewane indicated that Tsholofelo is an Asteri Primary School Teacher. She argued that it was therefore going to be impossible for the respondent to conduct the investigation when schools were on recess. She indicated that the applicant confirmed during cross-examination that no one was mentioned in the newspaper, and the school name was not mentioned. She argued that there was no proof that the respondent relied on the newspaper. She stated that the applicant confirmed that he was still getting his salary with full benefits, which was what the respondent was obliged to do. She further argued that there is no proof that the applicant had tried to claim, and the respondent had failed to pay him. Instead, he waited for the arbitration hearing to inform the ELRC that he had suffered financial prejudice. If the applicant could have escalated the matter to his Supervisor, it could have been attended to. She stated that the applicant did not suffer any financial prejudice. He said he was made to travel during his precautionary transfer, but there is no evidence that he tried to claim, and the respondent has failed to pay him. He claims that he had psychological trauma because of the precautionary transfer, but there is nothing from his medical certificates linking his sickness or stress to the precautionary transfer. He further claims that he was never assessed for performance management, and he will not be paid 1,5% pay progression, however, this is an internal matter that his Supervisor and himself could have resolved. His precautionary transfer was with full pay and full benefits. She argued that these claims have nothing to do with the precautionary transfer. She further argued that there was no way the respondent could have returned the applicant to the school whilst the disciplinary proceedings were still not finalized. She stated that the duty of the respondent was to protect the victim until the matter was finalized.

ANALYSIS
31. This matter concerns an alleged unfair labour practice in terms of section 186 (2) (b) of the “LRA”. Generally, it is tried law that in any dispute relating to an alleged unfair labour practice, the applicant bears the onus to establish or prove if the conduct of the employer constitutes unfair labour practice. Whilst the respondent bears the onus to prove that the conduct does not constitute unfair labour practice. The applicant did not call any additional witnesses, whilst the respondent has called one witness to substantiate its case or disprove the applicant’s case. The applicant had submitted a bundle of documents hereinafter referred to as bundle A, whilst the respondent submitted a bundle of documents hereinafter referred to as bundle R.

APPLICABLE LAW
32. First and foremost, section 186 (2) of the “LRA” is a “gateway” to all disputes relating to unfair labour practices. It provides an understanding of what exactly the conduct of the employer constitutes unfair labour practice. Section 186 (2) of the LRA defines unfair labour practice as follows:
(2) [Unfair labour practice] means any unfair act or omission that arises between an employer and an employee involving -
(a) unfair 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.
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
(c) a failure or refusal by an employer to re-instate or e-employ a former employee in terms of any agreement.

33. Firstly, it is common cause that the conduct of educators is governed by the Employment of Educators Act, 76 of 1998. Section 18 reads as follows: “Misconduct refers to a breakdown in the employment relationship an educator commits if he or she:
(1) fails to carry out a lawful order or routine instruction without just or reasonable cause.
(2) He or she conducts himself or herself in an improper, disgraceful, or unacceptable manner while on duty.”

34. Having regard to the above, I am of the view that the first step of this inquiry is to determine unfair acts or omissions that arose between the respondent and the applicant.

35. Giving rise to this matter, it is the allegations of serious misconduct in nature that were preferred against the applicant. In the wake of those allegations relating to sexual harassment, the respondent decided to place the applicant on precautionary transfer effective on 15 March 2022. The purpose of that precautionary transfer was accordingly to conduct a thorough investigation into such allegations.

36. It is common cause that the applicant was then transferred to the Johannesburg East District office. In terms of the “EEA”, an obligation is placed on the respondent to do everything possible to finalize a disciplinary inquiry within a period of one month of the transfer after transferring an educator.

37. In the present matter, it is common cause that the respondent did not conclude a disciplinary inquiry within one month according to the transfer of the applicant to the Johannesburg East District office.

38. As already read the definition of “unfair labour practice”, it then follows that I ought to determine if the transfer of the applicant does fall within the ambit of section 186 (2) of the “LRA”. The “LRA” makes no mention of the word “transfer” in the definition of “unfair labor practice”.

39. The transfer of an educator is governed by section 8 of the Employment of Educators Act, 76 of 1998 as amended. A transfer constitutes unfair labour practice, the conduct should amount to demotion or failure to pay benefits in full to the employee. In the present case, there is no evidence before me to suggest that the applicant did not enjoy his benefits in full, or he was subjected to the salary reduction.

40. Item 6 (2) of Schedule 2 of Disciplinary Code and Procedures for Educators: to “EEA” provides that in case of misconduct in terms of section 18, the employer may suspend an educator per the procedure contemplated in subitem 1 or transfer an educator to another post if the employer believes that the presence of the educator may jeopardize any investigation into the alleged misconduct, or endanger the well being or safety of any person at the workplace.

41. I wish to record in this regard that the applicant did not dispute the respondent’s version that he was paid his salary in full, including his benefits, throughout the period of transfer. There was no salary reduction and no demotion. There were no changes in terms of his terms and conditions of employment.

42. The applicant alleged that he was subjected to emotional trauma after being placed on precautionary transfer. It is the version of Mr. Selowa that the applicant submitted a medical certificate that did not link his condition to the precautionary transfer. However, I am of the view that if the applicant wishes to pursue a case of damages against the respondent, he should do so by lodging the correct dispute. I have no jurisdiction to deal with this issue under unfair labour practice.

43. Finally, the applicant is alleging that he was made to travel to different schools during his precautionary transfer. In contrast, the applicant failed to dispute Mr. Selowa’s version that the claim of traveling allowance at the ELRC in these proceedings was an ambush on the respondent since he failed to submit the claim internally. I agree. He could not prove before me that such a traveling allowance was submitted to the respondent and the respondent refused to pay it. Again, he did not deny or refute the knowledge of such a process or procedure within the respondent’s establishment. Given the above, I am of the view that the applicant ought to follow the internal procedures before declaring a dispute of unfair labour practice against the respondent with the ELRC.

44. In addition, the applicant alleged that he forfeited pay progression because of the precautionary transfer. There is no evidence before me stating that the respondent had refused to take the applicant through the performance management assessment to determine if he qualifies for pay progression. He may challenge the respondent’s decision after being scored unfavorably by his Manager with the Council. There is a remedy for pay progression if the respondent is found to have contravened any collective agreement, the applicant may embark on the procedure as laid out in the relevant collective agreement. The applicant has not forfeited the pay progression benefit since he did not go through a performance assessment with his Supervisor.

45. Regarding the above, I believe that the applicant had failed to discharge the onus to prove that the respondent's conduct constituted unfair labour practice.

46. On the premises, I make the following ruling.

AWARD
47. I find that the applicant, Shadrack Ndou, has failed to establish that the conduct of the respondent, Department of Education: Gauteng Province, constituted unfair labour practice in terms of section 186 (2) (b) of the “LRA”.

48. As a result of the above, this matter is dismissed.

49. I make no order as to costs.


P. Maitsha
ELRC Panelist