ELRC953-22/23FS

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA ZOOM

Case No: ELRC953-22/23FS

In the matter between

Ntombuxolo Jennet Dumezweni Applicant

and

Education Department of Free State Respondent

PANNELIST: Dr. GC. Van Der Berg
RULING: Finalized on 11 July 2023

Details of hearing and representation

1. The arbitration hearing took place on 29 May 2023 and 30 June 2023 via digital zoom conference, and it was scheduled for 12:00 PM and 9:00AM respectively. The applicant, Ntomboxolo Jennet Dumezweni, was represented by Thabo Raphudu from AV Theron & Swanepoel Inc. The respondent, Department of Education Free State, was represented by Thulo Tsunke. The applicant alleged an unfair labour practice regarding a demotion. The applicant is seeking to present the same subjects that she presented in 2022 before her demotion. The respondent denied that an unfair labour practice was committed against the applicant as she was never demoted.

Issue to be decided.

2. The applicant referred an unfair labour practice dispute regarding demotion in respect of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended to the ELRC.

3. I am firstly required to determine whether the respondent committed an unfair Labour practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA by demoting the applicant since January 2023 by taking away the following three (3) subjects; IsiXhosa, Business Studies and EMS and replaced it with Life Orientation (LO).

4. In terms of appropriate relief if I find that the respondent committed an ULP: (1) The applicant must as Educator PL1 teach the three (3) original subjects taught in 2022 to restore her dignity.

Background to the Dispute

5. The applicant was employed since 2016 as an educator level P1 and she is still teaching at the same school but since January 2023 it has changed to LO instead of isiXhosa and Commercial subject at the Katleho-Mpumelelu Secondary School. The applicant claimed that it is indeed an unfair labour practice regarding demotion as they took away subjects from her like EMS, isiXhosa, and Business Studies. Since 2016 up to the end of December 2022 she was teaching the subjects at Katleho-Mpumelelu Secondary School for grades 11 and 12. Since January 2023 she was only teaching Life Orientation (LO) for grades 8 and 9. Nothing changed in her grade, salary, and position as an educator. This came after she lodged a grievance about the principal and her attorney sent a letter to the School and the District about the change in subjects on 20 February 2023 but received no feedback. She sought the subjects to be given back to her.

6. The dispute was referred as an unfair labour practice regarding demotion on 09 March 2023 to the ELRC. The case was conciliated on 04 April 2023 and a certificate of non-resolution was issued. The applicant requested for arbitration on 24 April 2023, and it was set down for the arbitration hearing on 29 May 2023. The respondent claimed that the ELRC has no jurisdiction to entertain this arbitration and no demotion took place as the applicant is still in the same position with the same salary and benefits and at the same school. In a ruling it was decided that the ELRC indeed have jurisdiction to decide on this referred unfair labour practice regarding demotion.

7. The parties did present opening statements and verbal closing statements on 30 June 2023. Both parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered.

Survey of evidence and argument
Documentary evidence.
8. Only the applicant submitted a bundle of documents. The bundle of the applicant was marked as “A” pages 1-21. The respondent indicated that they are using the same bundle. The parties did not dispute the authenticity of the bundle.
Applicant’s evidence and arguments
The applicant, Ntomboxolo Jennet Dumezweni, Post level 1 teacher, after having been sworn in, testified as follows:

9. She stated that she started working in January 2016 at the new school and she was employed to teach IsiXhosa, but she was also allocated Business Studies in 2018 as the principal asked her, and she agreed. Her performance in the subjects were very good and there were no complaints from the learners in all three (3) subject which now also included EMS. The reports in 2020 were particularly good and the school started in 2020 with grade 12 learners. She taught IsiXhosa for grades 8 to 10, Business Studies for 10 and 11 and EMS for grade 8. In December 2022, the principal allocated only LO to her and took away the other three subjects.

10. She did not do anything in January 2023 and in February 2023 she approached her attorney, and he wrote a letter to the Department of Education, and he never received any response. Thereafter she decided to refer an unfair practice to the ELRC. In 2022 the principal also took away IsiXhosa and then she gave it back to the applicant indicated that the decision come from the departmental head.

11. According to the applicant the principal said in a meeting in front of the other staff members that teachers who teach LO is useless and stupid after LO was allocated to her. The relationship between the applicant and the principal became sour in 2020 and she wanted the applicant out of the school. She has no qualifications to teach LO, but she attended two (2) workshops in LO at the Districts Office and the second workshop during February 2023 at Aldam. When only LO as subject was allocated to her, she felt undermined, belittled, and disrespected by the principal and amongst staff. She wanted the subjects EMS, Business Studies and IsiXhosa to be given back to her and LO for certain grades can be included. She further asked to be sent on a mental health program to restore her self-esteem.

12. Under cross-examination the applicant confirmed that she has no qualifications in IsiXhosa, but it is her first language, and she grew up in a IsiXhosa speaking home. When she arrived in January 2016 at the school, she was transferred to teach IsiXhosa and there were two other educators that could speak IsiXhosa and at this present time there are five (5). She confirmed that the principal said in a meeting that anybody teaching LO is useless and stupid. She confirmed that the principal allocated to her LO in December 2022 and took away the other three (3) mentioned subjects that she was teaching, from January 2023. She stated that LO is weighing less than the other subjects because of the results and that the Department of Education always told that language subjects have more weight than LO. She further confirmed that if a learner fails IsiXhosa he/she fails the year and cannot be progressed to the next grade, but it is not the case when a learner failed LO and pass all the other subjects.

13. She confirmed that she was never consulted about the three (3) subjects taken away from her and she was just informed that from January 2023 she would only teach LO. She agreed that she was told to go to a workshop in January/February 2023 at Aldam to be further taught aspects of LO. She was on sick leave when she was informed in writing about the changes in her subjects, but she was only verbally told in January 2023. She stated that she was not at the school from 14 November 2022 when she was admitted at Vaalpark Hospital until the school closed in December 2022. She was told that the principal is going to testify that the reason IsiXhosa was taken away as subject was due to her habitual absenteeism. The applicant stated that she was not always out of school. She confirmed that a LO teacher is in a lessor position although the salary is still the same. She confirmed that she was teaching LO since 2016 with other subjects.

14. The applicant stated that the number of educators in IsiXhosa in the school are now two and grade 12 was never taught by her. The number of learners in her classes differ between 35 and 52. She did not respond when she was told that the principal will testify that her performance was not good. She confirmed that she was demoted.

15. Under re-examination she confirmed that she first taught LO in 2016 with IsiXhosa as subjects. She always has one or two classes in LO but now it is all the classes and no other subject.
Respondent’s evidence and argument
The witness of the respondent, LJ Tsotetso, Principal at Katleho-Mpumelelu Secondary School after having been sworn in, testified as follows:

16. The witness stated that she became principal at the school in January 2018 and the applicant is an educator at the school. The applicant taught IsiXhosa in 2016 and LO was added in 2017. She stated that there is no difference in the weight of LO and IsiXhosa as both are compulsory subjects and if LO is not completed there is no progression to the next grade, and it is the same for IsiXhosa. In some subjects there are educators in access and no educators are useless and stupid when teaching LO.

17. In December 2022 she and the Departmental Heads looked at the allocation and she decided about IsiXhosa. All the tasks were not done by the learners and the total curriculum was not covered by the applicant. Some of the learners failed in 2022 due to the performance of the applicant in IsiXhosa. The applicant was absent in October 2022 as well as November and December 2022 which resulted in tasks not marked as well as the scripts.

18. She further stated that it is in the job description of the Head of Department to do subject allocation to educators in different grades and she did not allocate the three (3) subjects for 2023. She however told the applicant that LO was allocated to her for 2023. She was capacitated for LO by sending her to a LO workshop in February 2023. The witness said that the applicant was absent in September and October 2022 as well as from 14 November 2022 up to when the school closed in December 2022. The applicant was either late or absent for two to three days a week from September 2023. The witness stated that the applicant was not specialized to teach in IsiXhosa as the required qualifications is not a major in her qualifications.

19. Under cross-examination she confirmed that EMS and Business Studies were taken away from the applicant because of access educators and her poor performance for the year. The allocations were made by the Departmental Heads. To ensure that the applicant improved her performance they look at the performance of educators plus development through different workshops. She confirmed that the Heads of Departments are allocating subjects in IsiXhosa, Business Studies and EMS. As principal she reverted to them, and they gave their reasons and then they discussed LO with her and she informed the applicant accordingly. She informed the Head of Department in 2022 to give IsiXhosa to the applicant to teach in 2022.

20. The witness confirmed that the relationship between her and the applicant is one of an employer and employee relationship. She never said that an educator that is teaching CA and LO is useless and stupid as the weight of all the subjects are equal. She agreed that the applicant is not qualified for LO, but she was sent to a workshop in LO in February 2023 at Aldam. She said the needs of the school and learners demanded that the applicant taught IsiXhosa from 2016 up to 2022. She stated that the applicant was not employed at the school to only teach IsiXhosa but all subjects that she could teach and depending on the needs of the school.

Closing arguments
21. Both the representatives of the applicant and the respondent presented verbal closing arguments on 30 June 2023. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.

Analysis of evidence and argument

22. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter.

23. The applicant referred an unfair labour practice dispute in terms of 186(2) of the LRA. The applicant is alleging that the respondent demoted her since January 2023 to remove the subjects she taught in 2022 and replace it with only LO. It is common cause that the applicant has been employed by the school since January 2016 as a PL1 teacher. The applicant claims that it is indeed an unfair labour practice regarding demotion as they took away subjects from her like EMS, isiXhosa, and Business Studies. From 2016 up to the end of December 2022 she was teaching subjects at Katleho-Mpumelelu Secondary School for grades 10 to 12. Since January 2023 she was only teaching Life Orientation (LO) for grades 8 and 9.

24. The panellist is expected to determine whether the respondent committed an unfair labour practice (ULP) in terms of section 186 (2)(a) of the LRA and whether the respondent demoted the applicant since January 2023 by taking away the following three (3) subjects; IsiXhosa, Business Studies and EMS and replaced it with Life Orientation (LO).

25. In terms of appropriate relief if I find that the respondent committed an ULP: (1) The applicant must as Educator PL1 teach the three (3) original subjects taught in 2022 to restore her dignity.

26. An employee who alleged that she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. She must do more than just demonstrate that the three (3) mentioned subjects were taken away from her and replaced with LO for 2023. She must also prove that her dignity was affected by the demotion as well as a reduction of the responsibility, power, or status which the employee previously enjoyed. It can also be seen as suffering because of public humiliation.

27. According to section 186(2)(a) of the LRA it provides that any act or omission involving the unfair conduct of the employer in relation to demotion constitutes an unfair labour practice. Demotion is thus allowed provided it is done fairly, in consultation with the employee and for the right reason. This means an employer must follow a fair procedure before it can demote an employee. Even if the salary and benefits remain unchanged a demotion may nerveless still be unfair. A demotion usually can means a reduction of the responsibility, power, or status which the employee previously enjoyed. Together with the diminished power can be the loss of the dignity of the employee.

28. The applicant testified that the principal said in a meeting in front of the other staff members teachers who teach LO is useless and stupid after LO was allocated to her. The relationship between the applicant and the principal became sour in 2020 and she wanted the applicant out of the school. She has no qualifications to teach LO, but she attended two (2) workshops in LO at the Districts Office and the second workshop during February 2023 at Aldam. When only LO as subject was allocated to her, she felt undermined, belittled, and disrespected by the principal and amongst staff. She wanted the subjects EMS, Business Studies and IsiXhosa to be given back to her and LO for certain grades can be included. She further asked to be sent on a mental health program to restore herself esteem.

29. It is the testimony of the principal that the applicant taught IsiXhosa in 2016 and LO was added in 2017. She stated that there is no difference in the weight of LO and IsiXhosa as both are compulsory subjects and if LO is not completed there is no progression to the next grade, and it is the same for IsiXhosa. In some subjects there are educators in access and no educators are useless and stupid when teaching LO. In December 2022 she and the Departmental Heads looked at the allocation and she decided about IsiXhosa. All the tasks were not done by the learners and the total curriculum was not covered by the applicant. Some of the learners failed in 2022 due to the performance of the applicant in IsiXhosa. The applicant was absent in October 2022 as well as November and December 2022 which resulted in tasks not marked as well as the scripts.

30. The representative of the applicant submits that there is no proof that any consultation took place with the applicant regarding the three (3) subjects taken away from her and the allocation of only LO for 2023. No training was given regarding the absence and poor performance of the applicant and no corrective measures were taken. Instead, the respondent opted to uniformly demoted the applicant by removing the major subjects and she was allocated LO for grades 8 and 9 for 2023.

31. It is his further submission that the applicant testified that only teaching LO belittled, undermined, and humiliated her as it was said in front of other teachers. She wants at least one of the major subjects back together with LO. The applicant proved the demotion on the balance of probabilities. Training for LO only took place after the subject was allocated to her. Her illness and absence must be considered in the determination of the poor work performance.

32. It is the submission of the representative of the respondent that training indeed took place for the applicant when she was sent to a LO workshop in February 2022. The applicant led evidence that she teaches LO in 2016 and according to him no consultation is needed. The applicant stated that she felt aggrieved from removing her to teach IsiXhosa, but she does not have the qualifications to teach the subject. LO is not of less value and weight than IsiXhosa. The problem with her performance already existed in 2022 and the principal had to intervene in the allocation of classes for 2022. It is his further submission that the applicant was performing poorly in 2022 as tasks were not completed and there was a high failing rate in 2022 of learners. Further due to her habitual absenteeism and the fact that she does not qualify to teach IsiXhosa the subject was taken away from the applicant. According to him the applicant failed to prove that there was any demotion.

33. It is clear from the testimony of the witness of the respondent and the closing arguments of the representatives as well as the testimony of the applicant that she was indeed not demoted in January 2023 when the three subject was taken away from her and replaced with only LO. However, no consultation took place with the applicant regarding the allocation of subjects in December 2022 for the year 2023 and she was informed about the change in subjects. I further find that there was no change in position and salary and not in power, responsibility and status and she was not humiliated in front of the other staff members that affected her dignity. She felt aggrieved about it, but it does not mean that her dignity was affected. This was a managerial prerogative by the principal as the applicant’s line manager. Her action amounted to no more than the re-allocation of tasks although it was not done in a humane manner.

34. Considering all the above, the applicant was not subjected to a ULP demotion as envisaged by the LRA provisions. I do recommend that the applicant must be sent for training and workshops to develop her further and the necessary action may be taken against poor work performance and absenteeism. Considering the above I make the following award.

AWARD

35. The respondent, Education Department of the Free State did not commit an unfair labour practice dispute in terms of 186(2) of the LRA and the applicant was not demoted by the respondent in January 2023.


Signature:
Basic Education