ELRC192-22/23KZN

ARBITRATION AWARD

Case Number: ELRC192-22/23KZN
Commissioner: Protas Cele
Date of Award: 10 August 2023

In the ARBITRATION between

NATU obo Ngema, H

(Union / Applicant)

And

Department of Education KwaZulu-Natal

(Respondent)

Union / Employee’s representative : S. M. B. Buthelezi (NATU)

Employer’s representative : M.C. Sibanyoni (DOE)

Details of hearing and representation
1. The matter was set down for arbitration at the District Office of the Department of Education KwaZulu-Natal in Vryheid on 19 July 2023 at 09h00.

2. The Applicant, Hlakaniphile Ngema, appeared in person and was represented by S. M. B. Buthelezi, an official from the National Teachers` Union (NATU) and M.C.Sibanyoni appeared on behalf of the Respondent, the Department of Education: KwaZulu-Natal.

3. Buthelezi produced a bundle of documents which was admitted and marked bundle A(A1-24) and Sibanyoni presented two bundles which were admitted and marked bundle B(B1-38) and bundle C (C1) respectively.

4. The proceedings were conducted in English and digitally recorded.

Preliminary issue(s)
5. At the commencement of the arbitration proceedings the parties agreed that the dispute is premised on the interpretation and application of a collective agreement.

6. To this end it was agreed that no oral evidence would be led and that the parties would give opening statements on record and finalise the matter in terms of a stated case.

7. It was further agreed that the parties would file their statements on or before 26 July 2023 and that to dispense with oral evidence would be an objective time and cost saving measure given the history of the matter.

Issue(s) to be decided
8. I am required to decide whether or not the collective agreement no.4 of 2016 and HRM circular No.50 of 2021 were adhered to when the Applicant was declared a surplus educator.

Background to the dispute
9. The Applicant was placed at Bawelise Special School as a temporary transferred educator on 1 January 2021. She was subsequently declared a surplus educator by the Respondent and placed at Paullpietersburg Primary School to assume duty on 27 July 2022 where she is currently teaching.

10. The Union is seeking an order allowing the Applicant to return to her initial school, Bowelise Special School. It contended that if the Procedure Manual was correctly interpreted, she would still be teaching at Bawelise Special School.
11. The Respondent`s case was that the Applicant was procedurally declared surplus to staff establishment. The decision was based on the curricular needs of the school.

Survey of evidence and argument.
Applicant`s statement of case
12. Buthelezi submitted on behalf of the Applicant that the Respondent issued HRM Circular No.50 of 2021 to be used as a guiding document for the process of declaring surplus educators in all the schools. The Circular should be read in conjunction with the ELRC Collective agreement No.4 of 2016.

13. The Respondent committed an error in interpreting and implementing the Circular. HRM 50 of 2021 (A3-14) should be used as a procedure manual for the staffing of schools and ELRC collective agreement No.4 of 2016 is one of the key principles guiding this procedure manual (A3 par 2).

14. The Applicant arrived at Bawelise Special School on 1 January 2021 as a temporary transferred educator. The School Governing Body (SGB) of Bawelise Special School had to make a recommendation regarding the permanent absorption of the Applicant within two months after the Applicant had reported for duty at the school (A1 par 3).

15. The Respondent failed to comply with its own condition in that there was no recommendation made. The Applicant arrived at Bawelise Special School in January 2021, and 2021 is a base of a 3-year cycle which commenced in 2021 and will lapse in 2023. The Post establishment and the determination of the curriculum is undertaken in the base year and shall be fixed for the ensuing three years (A12 par 1).

16. Placing the Applicant at Paulpietersburg Primary School was therefore a mistake by the Respondent because 2021 was a base year. An observation must be done during the 3-year cycle to minimise the movement of educators.

17. The Applicant was placed at Bawelise in January 2021 and was accepted because of her profile which matched the requirements at that time. In October 2021 (10 months later) she was declared a surplus educator, whereas there was no submission made in terms of the change in the curriculum which caused her not to meet the requirements after ten months.

18. The Respondent should give a full account of the logic or motive behind the change within this period if there is any. An acceptable explanation in this regard could be that the school is no longer offering the subject that the Applicant was teaching.
19. On the contrary, the Respondent provided minutes of the meeting (B13-14). According to the minutes the Applicant is the only educator offering Life Skills as functional academic and woodwork under skills since Bawelise is a special school. There is no other educator offering same which clearly indicates that her services are still needed.

20. If she did not meet the requirements at Bawelise in January 2021 the principal was supposed to indicate that from the onset and not accept her. If the Applicant was mistakenly placed at Bawelise then unfortunately this process should not be used to rectify previous errors or mismatch by the Respondent.

21. The purpose of this Procedure manual is to give effect to PPN implementation, as per bundle A (A3 par 1) (Purpose). The allegation by the Respondent that the Applicant was incorrectly placed cannot be addressed using this process.

22. Alleging that the Applicant was incorrectly placed at Bawelise is not relevant, the placement was done by the Respondent, and if the Respondent failed to place the Applicant correctly at that time, that cannot be used as a justification for not following the procedure in implementing the staffing now.

23. The Respondent should have followed the relevant and legislated procedure in dealing with the alleged incorrect placement of the Applicant, such concern should be raised at the relevant structure following proper procedures.

24. The arbitration seeks to address the issue of incorrect interpretation and implementation of HRM 50 of 2021 and not to address the discrepancies or irregularities by the Respondent from the previous DTT placements or any other forum.

25. It is the prerogative of the Respondent to ensure that procedures are always implemented correctly and placing the Applicant incorrectly cannot be used as the reason for an incorrect and unprocedural declaration at Bawelise.

26. The movement of the Applicant twice within the same cycle is unprocedural and according to the procedure manual, 2021 being a base year, the Applicant should stay at Bawelise and only move during the next cycle which will commence from 1 January 2024.

27. Where schools experience a decrease in post allocation or changes in curriculum needs, educators should be declared as additional to the educator post establishment, at a formal staff meeting (A4 par 4.2.1). Formal minutes of the staff meeting (B13-14) confirm that there was no educator who was declared as surplus in a meeting that was held, hence any declaration thereof should be deemed invalid and unprocedural.
28. A declaration should be done in a fair, transparent and objective manner, and not a punitive measure against educators (A par 4.1.2). According to the minutes of the staff meeting which was held at Bawelise neither the Applicant nor any other educator was declared as surplus at the meeting.

29. The attempt by the Respondent to use the process to punish the Applicant is unethical, unfair and unprocedural. The PPN certificate (B13 par 3) confirms that Bawelise Primary School qualifies for 7 educators i.e 1 principal, 2 departmental heads and 4 PL1`s. The minutes reflect that the school had 1 departmental head and 4 PL1`s and 1 principal.

30. The minutes also reflect that there was a post advertised for 1 departmental head, which confirms and account for seven educators as per the PPN certificate that was presented at the meeting. The procedure manual (A4 par 4.2.1) dictates that additional educators should be declared in a formal staff meeting in consultation with the educator staff of the institution. Declaring an educator as surplus after the meeting is unprocedural and incorrect.

31. The minutes of the meeting which was held at Bawelise further confirm that the educators’ qualifications and school subjects were displayed to establish the curriculum needs and if they qualified. In these minutes there was no declaration made in terms of any educator not meeting the requirements, including the Applicant.

32. Where less than three educators have been declared as additional no further action is necessary except to confirm that the services of such educators will be effectively utilized at the best advantage of the learners (A13 par 5.6.2).


33. Even if the Applicant was procedurally declared but because she would be the only educator declared, she was not supposed to be moved from Bawelise special school.

34. He submitted that the Applicant believes that the declaration that was made of her being a surplus educator was both unjustified and unprocedural as it does not comply with the procedure manual, HRM circular no.50 of 2021 and the collective agreement which was issued as a guiding document to be used during the declaration.

35. He submitted that the Applicant should be allowed to return to her initial school, Bawelise special school, because if the procedure manual was correctly interpreted and implemented, she would still be serving at Bawelise special school and not Paulpietersburg primary school.

Respondent’s statement of case

36. Sibanyoni submitted on behalf of the Respondent that as a norm, every year the Respondent declares the educators who are additional to the staff establishment. The main aim is to correct the inefficiency of the shortage in many schools.

37. The mechanism of post provisioning was adapted to ensure that each school is allocated the correct number of educators hence the process is governed by the Employment of Educators Act no 76 of 1996.

38. The Applicant was declared additional in terms of staff establishment. She lodged a grievance challenging the process, alleging that there were procedural irregularities on her identification as additional to the establishment of the school in terms of HRM CIRCULAR NO.50 of 2021.

39. The grievance was dismissed and the grievance committee reached a decision that the Circuit Management Task Team must place the Applicant at Paulpietersburg primary school less than a 5-kilometre radius from Bawelise special school.

40. The Applicant was procedurally declared surplus to staff establishment and this was confirmed by the staff meeting which was held on 25 October 2021 at the school. The main thrust of the meeting resolution to have the Applicant declared additional was based on the curricular needs of the school.

41. The PPN certificate was presented but the main objective was to check whether all educators qualify to teach the special school subject package offered by the school. As a result, it was established that the Applicant holds a Bachelor of Science degree, post graduate certificate in senior and FET phases in mathematics, natural science and life science, however she does not possess a qualification to teach at a special school but she is a main stream school educator by profession.

42. Bawelise falls in the ambit of learners with Special Education Needs (LSEN), hence it is accommodating children with special needs of education who require specialist attention to barriers of learning like visual, hearing and other impairments.

43. As a result, the Department of Basic Education published a model for the allocation of educator posts to schools. The model provides for learners with disabilities or educational challenges to be allocated a weighting that reflects their relative needs in terms of post provisioning.

44. Furthermore, the post provisioning of the school must ensure that the teachers are qualified to accommodate learners with disabilities. After a disclosure on the qualifications of the Applicant, the Respondent arrived at the conclusion that the applicant does not meet the requirements of teaching the learners with disabilities.


45. The Respondent then resolved to bring into line the learners with disabilities with the fundamental right to basic education that supports the best interest of the child. The state has an obligation to protect, respect, promote and to fulfill the right to education. This right is regarded as the most crucial constitutional right, particularly because it promotes economic and social well-being.

46. The Applicant was initially teaching at KwaMpunzi combined school, a 34-kilometre radius from town, where she resides and where both Bawelise special school and Paulpietersburg Primary School are located. She was transferred from KwaMpunzi combined school after she attended a Circuit Management Task Team meeting (CMTT) representing the union, NATU.


47. The meeting was held to place educators that were additional to staff establishment to a new special school, Bawelise. As a participant to the meeting, the Applicant proposed that she is also placed at the school. When she was asked if she possessed the necessary qualifications, she confirmed and due processes unfolded.

48. Upon her assumption, it was established that she had submitted a fraudulent document indicating that she is qualified to teach at a special school. The Respondent is in the process of initiating disciplinary processes regarding this falsification of documents.

49. The collective agreement no. 2 of 2003 which deals with transfers of serving educators in terms of operational requirements, was implemented in this matter. The collective agreement provides that operational requirements for education institutions are based on but not limited to the following:

a) The change in learner enrolment;
b) Curriculum changes or change in learners` involvement in the curriculum;
c) Change to the grading or classification of institutions; and
d) Merging or closing of institutions and financial constraints.

50. In this regard the curriculum needs of the school resulted in the Applicant declared surplus on the staff establishment. After she was declared surplus, the CMTT was tasked to place her at the school which matches her profile. In terms of a placement letter at Paulpietersburg Primary School (B17) the Applicant was expected to assume duties not later than 27 July 2022.

51. Some communications were made pertaining to the assumption of duties by the Applicant at Paulpietersburg Primary School including that there was no post, however the principal of the school confirmed in writing that there was indeed a vacant post for intermediate and senior phase.


52. The placement was fair as the Applicant would not suffer any prejudice in that she was still going to receive equal remuneration, her travelling distance from home to work was shortened and all her conditions of service she enjoyed were not tampered with.

53. On 24 February 2023 when this matter was set down for arbitration, the Applicant was given time to think about what was put on the table by the Respondent regarding the vacant post in Paulpietersburg Primary School and to respond before 10 March 2023.

54. When the Applicant failed to respond the Respondent issued a placement letter directing her to assume duties at Paulpietersburg Primary School (C1). The Applicant made a dramatic assumption of duty at the school, accompanied by Union officials and demanded to teach only isiZulu.

55. The Respondent had to intervene and assisted the situation to the extent that the Applicant is currently working very well at the school and there are no issues.

56. To move her back to Bawelise is likely to jeopardize the management and administration of education in that:

a). Bawelise is currently enjoying a balanced staffing and there is no vacancy;
b). Paulpietersburg would be left with a class without an educator (Shortage);
c). The applicant will not be able to offer any assistance to Bawelise as she would be the only educator not qualified to teach at a specific school;
d). All educators placed, moved, and she would be the only educator in the District who remains at the school with no duty load.

57. He submitted that it is the duty of the Respondent in terms of section 195 and 197 of the constitution of the Republic of South Africa to ensure that placing of employees to posts, considers abilities of employees as well as the need to redress the imbalances of the past to achieve broad representation.

58. The Labour Relations Act of 1995, as amended, and other prescripts of law direct that employers must endeavor to achieve equity with employees. The Employment of Educator’s Act of 1996, as amended, in chapter 3, directs that the employer has an obligation to serving educators before considering new applications. This mitigates possible retrenchments.


59. Filling of a vacant post is regulated in Chapter B of the PAM document. Transfer of serving educators is regulated in the collective agreement no.4 of 2016. Annexure A of the agreement gives guidance to a consideration of classification of an institution when posts are allocated. A decision must be based on views of a staff meeting.

60. The employer may transfer an educator who is additional to staff establishment to another post where he / she matches skills and experience. An arbitration on a matter of transfer of educators shall rule in consideration of the fact that operational requirements of the employer remain the ultimate and overriding factor to be considered when deciding a transfer.

Analysis of evidence and argument
62. Section 24 of the Labour Relations Act 66 of 1995(LRA), as amended regulates disputes about the interpretation and application of collective agreements and provides for their resolution through arbitration.
63. In chapter one of the BCEA a collective agreement is defined as a written agreement concerning terms and conditions of employment or any other matter of mutual interest, concluded by one or more registered trade unions and one or more employers or one or more registered employers’ organisations.
64. In the present case the Applicant contends that based on the HRM Circular No.50 of 2021 and the ELRC collective Agreement No.4 of 2016, she was unprocedurally declared by the Respondent as surplus/additional to the educator post establishment.
65. She further contends that as a result thereof her subsequent placement at Paulpietersburg Primary School from Bawelise Special School was unjustified and therefore invalid.
66. After taking into account the totality of the circumstances surrounding the declaration and the resultant placement, and considered all the relevant and material facts contained in the statements, I find no basis on which it can be said that the declaration was unprocedural and that the placement was unjustified.
67. The Respondent had an objective rationale for declaring the Applicant surplus to establishment and I am persuaded by the submission made on its behalf that it was because she does not qualify to teach at a special school.
68. The fact that 2021 is a base of a 3 year cycle for the Applicant cannot be used to preclude the Respondent from addressing an anomaly as part of its prerogative of post provisioning based on the curricular needs of a school.
69. When the Applicant was declared additional and placed at Paulpietersburg Primary School, the Respondent applied the provisions of the Collective Agreement No.2 of 2003 which deal with transfers of serving educators in terms of operational requirements based on the curriculum needs of the school.
70. The Applicant was declared surplus in a procedural manner and I am not persuaded by her contention that there were procedural irregularities on her being identified as additional in terms of the HRM Circular No.50 of 2021.
71. Furthermore even if she established the procedural irregularities, which she did not, the court in PSA obo Chokoe v Education Labour Relations Council and Others (JR2147/13) [2016] ZALCJHB 396 (14 October 2016) held that the Applicant’s actual unhappiness and her dispute with the employer has very little to do with the procedure for transfer in terms of Resolution 2 of 2003 or any other collective agreement, but much to do with the substantive fairness of the transfer.
72. The relief that the Applicant is seeking is to be allowed to return to Bawelise Special School. According to the Respondent she does not qualify to teach at a special school and that there is no vacant post at Bawelise Special School.
73. If she is allowed to return to Bawelise, she would be the only educator in the District who remains at the school with no duty load and Paulpietersburg Primary would be left with a class without an educator.
74. It is also my view that this is not a competent relief based on the submission made on behalf of the Respondent and further that it would not be in the interest of the learner i.e the learner in a main stream school and more so, the learner in a special school with special education needs.
75. Section 28(2) of the Constitution of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child.
76. By extension, section 28(2) also applies in the education sector. In the Governing Body of the Juma Musjid Primary School v Essay N.O. and Others 2011 (8) BCLR 761 (CC) , the Constitutional Court held that courts and arbitrators are bound to give consideration to the effect that their decisions will have on children`s lives.
77. In these circumstances it is my finding on a balance of probabilities that the Applicant did not establish the interpretation of the collective agreement in order for her to be allowed to return to Bawelise Special School.

Award

I therefore make the following award

78. The Application is dismissed.

79. I make no order as to costs.

P Cele: CCMA Commissioner