ELRC855-22/23GP

IN THE ELRC ARBITRATION
BETWEEN:

Themba Raymond Nkosi Applicant
and
The Department of Education: Gauteng Province Respondent

ARBITRATION AWARD

Case Number: ELRC855-22/23GP
Arbitration date: 25 July2023
Date of Award: 22 August 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. The arbitration hearing was held over 4 days was held on 28 March 2023, 22 May 2023, 27 June 2023. A final arbitration hearing was held on 27 July 2023 at the Department of Education in Johannesburg. 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 LRA”. The award is issued in terms of section 138(7) of the LRA”.

2. The applicant is Themba Raymond Nkosi. He was in attendance and he was represented by Mr. Mikhail Mayet, an Attorney from Mikhael Mayet Attorneys. The respondent is the Department of Education: Gauteng Province and was represented by Mr. Hasani Macheke, Assistant Director: Labour Relations Officer.

3. The parties gave the oral evidence under oath. The proceedings were digitally recorded.

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 in terms of section 186(2) (b) of the LRA.
5. If so, to make an appropriate award.

BACKGROUND DETAILS
6. The parties held a pre-arbitration meeting on 15 February 2023 and agreed on the following in terms of the Pre-Arbitration Minutes:
6.1. In terms of common cause facts:
6.1.1. The respondent employed the applicant on 1 April 2001 in the capacity of the principal and he was appointed at Laerskool Kreft Primary School. He is earning a gross salary of R49 742, 55 68 per month.
6.1.2. The applicant was transferred to Ekurhuleni District office on 1 November 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 the transfer 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:

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

10. 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
11. He testified that on 1 November 2022 he was called by the IDSO Supervisor to come to the board room and informed him that the Dispute Management wanted to give him a letter. He then went to the board room and upon arrival, he found Peter Nkosi, Themba Ntshangela from Dispute Management, his IDSO Glenda Bonga, accompanied by Circuit Manager, Victor Petlo. Mr. Themba Ntshangela was given an opportunity to read the letter to him.

12. He testified that the letter contained a Persal number which does not belong to him. He then did not attend to work after the letter.

13. He testified that section 6, SUSPENSION in the Employment of Educators Act, under Schedule 2: Disciplinary Code and Procedures provides: “6(1) In case of serious misconduct in terms of section 17 the employer may suspend the educator on a full pay for a maximum period of three months.”

14. He testified that in terms of subsection 6(2), in terms of for misconduct in terms of section 18 Employment of Educators Act, the employer must suspend the educator in accordance with the procedure contemplated in sub-items 1 or transfer the educator to other post if the employer believes that the presence of the educator may jeopardize any investigation to the alleged misconduct or endanger the wellbeing of safety of a person at the workplace.

15. He testified that subsection 6(3) reads as follows: “If an educator is suspended or transferred, the employer must do everything possible to conclude the disciplinary hearing within one month of the precautionary suspension or transfer. (b) The presiding officer may decide on any further postponement, such postponement must not exceed 90 days from the date of suspension. (c) If the proceedings are not concluded within 90 days, the employer must enquire from the presiding officer what the reason for the delay is and give the direction to the speedily conclusion of the proceedings. (d) At the time of enquiry contemplated in paragraph (c), the employer may after giving an educator an opportunity to make representation, direct that a further suspension will be without pay.

16. He testified that Item 8(5) of Schedule 2 to the Employment of Educators Act reads as follows: “The Head of Department may, without recommendation contemplated in subsection 2, transfer the educator temporarily for a stated period from a post at a public school or public further education and training institution, to post at other public school or public institution for further education and training.”

17. He testified that there are gross irregularities on the side of the respondent because in terms of the legislation he was supposed to be transferred to a public school, but he was transferred to a district office where he just sat doing nothing. District office is not a public school. He testified that on 28 November 2022 the SADTU Tembisa branch Executive Committee wrote a letter to the CCMA/ELRC Gauteng wherein they confirmed that the applicant has been appointed as the office-bearer at Craft site to represent its members. The purpose of the letter was to inform the CCMA or ELRC that when its members appear at arbitration, he can represent them. He further testified that there is a procedure in terms of Schedule 8 which reads as follows: “Discipline against union representative or an employee who is an office bearer or official of a trade union should not be instituted without first informing and consulting the trade union.”

18. He testified that on 1 November 2022 he was called by his Manager, Mr. Bonga, that the Dispute Management wanted to give him a letter, the union was not informed at all in terms of Schedule 8 because if it has been informed, they were supposed to have been given a chance to make representation to the respondent. There was no consultation according to his knowledge.

19. He also testified that on 28 November 2022 SADTU Tembisa South branch wrote a letter to the District Director, Mrs. Nduta, stating that he was surprised on 25 November 2022 he did not receive section 38A salary with no reason or explanation and thereby asked her office to intervene. He testified that the respondent had written a letter to the school governing body with the subject “APPOINTMENT OF A PERSON TO PERFORM FUNCTIONS OF THE SGB”. Wherein it was stated that a financial assessment was conducted at the school and was established that the SGB has failed to perform function allocated to it and the Head of Department informed the SGB that he has appointed the District Director to perform its functions as the SGB. The HOD further stated that such appointment would be for a period of three months from the date of the letter.

20. He testified that the District Director was the one who was supposed to pay section 38A salary as he was appointed by Head of Department. Even at the time of these proceedings the District Director has not responded to the letter. Macheke was misdirected, the SGB has no power to make such payment. It cannot pay anybody. Section 38A payments were made in November 2022 whilst he was on suspension to the following people: James Prinsloo (Head of Department), Mofokeng (Acting Head of Department), Mr. Botha (Acting Head of Department).

21. He testified that Item 8(3) ) of Schedule 2 to the Employment of Educators Act states: “The salary and other conditions of services of an educator may not be adversely affected by the transfer under the section without the consent in writing of that educator, except with the provisions of chapter 5.

22. He testified that a letter of “UPLIFTMENT OF PRECAUTIONARY TRANSFER” states: “Kindly take note that the Department would like to uplift your precautionary transfer with immediate effect in line with the expiry of 90 days. Please liaise with Labour Relations Office at Ekurhuleni District Office within 24 hours after the receipt of this notice for them to facilitate your back to school”.

23. He did not receive this letter; he saw it from the bundle, and he called Mr. Macheke who referred him to the District Director. He called the District Director. He testified that on 12 April 2023 the school opened, and he went to the district to get the letter, but the Director told him to go to the school because the Dispute Management confirmed. He further testified that on 10 May 2023 he responded to a missed call on his cell phone where he was told to come to the office, and upon arrival, the Director gave him the letter.
24. He further testified that on 7 February 2023 he received a letter from Mr. Ndutha from the respondent dated 6 February 2023 which reads as follows: “The suspension was for three months, and 90 days has lapsed long time ago.” He was suspended indefinitely.

25. He testified that the respondent has treated him unfairly and does not care about the legislature. His relief sought is compensation as the process the respondent implemented after his presentation is clearly substantively and procedurally unfair, his dignity and reputation are damaged.

26. He testified under cross examination that the precautionary transfer letter that transferred him to a district office was invalid. He testified that section 6(2) of the Employment of Educators Act prohibits the HOD from transferring him to the district office. There was no post given to him. Item 8(5) of Schedule 2 to the Employment of Educators Act does not state district office. The legislation does not state that the HOD may transfer him anywhere. He testified that the legislation states that the maximum period for precautionary transfer is 90 days. The minimum period for precautionary transfer is 30 days. He agreed that the precautionary letter stipulated that he was transferred to the district office. He testified that the SGB does run the schools. He testified that the SGB must make an application to the respondent for section 38A salary payment to be made on any person. The SGB is responsible for running the school funds.

THE EVIDENCE OF THE SECOND WITNESS: SELOKELA MALEMA, THE MODUPO PRIMARY SCHOOL
27. He testified that the applicant reported to the union, SADTU, that the payment of section 38A salary has been stopped. As the chairperson, he wrote a letter to Mam Nonceba Nduta, who promised to deal with the matter. This matter has not been resolved to date because section 38A letter did not come. This stoppage surfaced after the applicant’s precautionary transfer. The union believes that the applicant was treated unfairly because his benefit was taken away from him.

28. He testified that a letter from the Head of Department, Mr. Edward Mosue, dated 24 November 2022 addressed to the SGB with the subject “APPOINTMENT OF PERSON TO PERFORM DUTIES” tries to prove that the respondent was responsible for taking away the applicant’s section 38A salary because the HOD appointed the District Director and if there is anybody who took away section 38A payment away from the applicant, that person would have acted in her instruction. He testified that the payment would have been made to the applicant by 25 November 2022.

29. He testified that there was never any communication in writing or in any way that went to the applicant, nor the union explaining why this section 38A payment was taken away. He testified that the union has provided the respondent with the list of office bearers at least three times because the respondent will always ask documents from the union and the union has a working relationship with the respondent. This is affirmation that the applicant is an office bearer. The union has appointed the applicant to represent its members.

30. He testified that the union was never consulted or notified. That is why the respondent acted unfairly. The applicant was never given an intent letter or “audi” letter as to why the respondent should not take precautionary transfer or not discipline him.

31. He testified that on 28 October 2022 Mr. Mosue signed a precautionary transfer letter and the applicant received it on 1 November 2022. The applicant had to report at Ekurhuleni District offices. The letter does not transfer the applicant to public school, but to the district office. He further testified that the respondent is also undermining the laws of the country.

32. He testified under cross-examination that Item 6(1) of Schedule 2 to the Employment of Educators Act states: “In the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in subsection (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 wellbeing or safety of any person in the workplace.

THE APPLICANT’S CLOSING ARGUMENTS
33. Mr. Mikhail Mayet referred to PSA obo Blose Department of Education: KwaZulu natal (2009) 6 BALR 584 (GPSSBC), Israel v Department of Correctional Services (2009) 6 BALR 540 (GPSSBC), Ngwenya v Premier of Kwa-Zulu Natal (2001) 8BLLR 924(LC). He indicated that the Labour Court has laid down the principles of fairness of suspension. He referred to Mabilo v Mpumalanga Provincial Government (1999) 8 BLLR 821 para.17. He submitted that the Commissioner should find that the applicant’s precautionary transfer and non-payment of his section 38A benefits were procedurally and substantively unfair and he should be compensated with the standards and norms.

THE RESPONDENT’S EVIDENCE
THE EVIDENCE OF PATRICK SELOWA: THE DIRECTOR: OF LABOUR RELATIONS
34. He testified that he has been the Director for 12 years. He is responsible for management of discipline which includes advising the Head of Department on cases that requires precautionary suspensions and transfers, overseeing the investigations on disciplinary cases, overseeing that disciplinary cases are heard and concluded, disputes lodged against the respondent at the Bargaining Councils, oversee the resolution of the employees’ grievances in the Department, and provide labour relations advisory to management within the respondent.

35. He testified that the Employment of Educators Act of 1998 in particular Schedule 2, Item 6 regulates precautionary transfer. The reason for precautionary transfer will be if the educator is alleged to have committed a serious act of misconduct and the presence of the educator in that specific workstation may jeopardize the investigation into the alleged act of misconduct.

36. He testified that the applicant was notified of a precautionary transfer through a letter signed by the Head of Department, Mr. Mosue, on 26 October 2022 and acknowledged by the official on 1 November 2022. The respondent has to continue with the investigation after notifying the applicant of precautionary transfer to establish the veracity of the allegations that were the subject of the investigation and upon completion of the investigation and if the veracity has established that the official has a case to answer, the district will then forward a report to the Head Office with the request that the disciplinary charges be proffered against the official.

37. He testified that the first allegation against the applicant was to promote racial tension at the school. As the Principal of the school, the applicant has an obligation to ensure that there is no racism at the school. The other issue was that it was alleged that the applicant was taking unilateral decision without consulting the SGB. He was taking the decisions relating to the appointments and finances of the school without involving the school governing body or consulting the school governing body. The other issue that came was that he failed to appoint the teacher who was recommended by the panel, but appointed someone who was not even shortlisted and allegedly his relative. It was further alleged that he was signing cheques for payment without informing or without authorization from the school governing body. It was also alleged that he unilaterally changed the payment date of the SGB educators from 20th of the month to the 25th of the month. The other allegation was that he solicited a bribe from the service provider, who got the security tender or R2 000 000,00 at the school by demanding 10% of the money the company was paid. He testified that taking all these allegations into consideration, which are viewed by the respondent in a serious light, it was justified for the respondent to place the applicant into precautionary transfer pending the investigations into those allegations. His presence at the school would jeopardize the investigation.

38. He testified that when the applicant was transferred, he would be at the district office. He testified that section 8 of Employment of Educators Act deals with ordinary transfer, whereas Schedule 2 of the same Act deals with precautionary transfer. Section 8 does not find application in this case.

39. He testified that in the case of precautionary suspension and precautionary transfer, there is no requirement to consult the union because no disciplinary action is taken at that stage. There is no requirement to give an employee the opportunity to be heard. He testified that the case has been settled by the Constitutional Court.

40. He further testified that on 24 February 2023 the HOD approved the allegations against the applicant and acknowledged by the applicant on 8 March 2023. He confirmed that the allegations emanated from the applicant’s precautionary transfer. He testified that in terms of Schedule 2 of Employment of Educators Act, the employer must do anything possible to conclude the disciplinary proceedings.

41. He also testified that during precautionary transfer the applicant suffered no prejudice. He did not suffer any financial loss; the precautionary transfer was not unreasonably long and it did not impact on his dignity.

42. He testified under cross examination that the applicant was transferred to the district office. He testified that when proffering the charges against the applicant, it was not brought to his attention that the applicant was a shop steward.

THE RESPONDENT’S CLOSING ARGUMENTS
43. Mr. Hasani Macheke indicated that the respondent’s evidence is more probable because it is trustworthy, credible, sufficient, reliable, and compelling, whereas the applicant’s evidence is based on denial, evasiveness, fabrication and lies. He indicated that the precautionary transfer of educators was dealt with in terms of Item 6 of Schedule 2 of the Employment of Educators Act, 76 of 1998 as amended. The Head of Department can, in terms of Item 6, precautionary transfer an educator to the district office as there is nothing hindering him from doing so. He stated that the applicant had relied on chapter 3 section 8 of the Employment of Educators Act, , which is wrong law. He stated that the respondent does not owe the applicant. The respondent was paying the applicant his salary during the entire period of transfer from 1 November 2022 on monthly basis and until to date, is still doing so. The applicant has confirmed that the respondent is paying his salary monthly.

44. He argued that there was no requirement for the respondent to inform and consult with the trade union prior to serving the applicant with a precautionary transfer. He argued that there was no need for the respondent to offer the applicant an opportunity for representation (audi alteram letter) as alleged by the applicant’s witness, Mr. Malema. He relied on the Constitutional Court judgement of the matter between Long v SAB (Pty) Ltd where the court held that there is no need to provide an employee with the opportunity to make representations prior to the employee’s suspension/transfer provided that the suspension/transfer is on full pay and the suspension/transfer is implemented as a precautionary measure. He indicated that the respondent has currently uplifted the precautionary transfer of the applicant and he has returned to school as the principal. He submitted that the definition of unfair labour practice in terms of the Labour Relations Act makes no mention of the word “transfer “and therefore the ELRC does not have jurisdiction to deal with the matter. She stated that the duty of the respondent was to protect the victim until the matter was finalized.

ANALYSIS
45. This matter concerns an alleged unfair labour practice in terms of section 186 (2) (b) of the LRA. Generally, it is trite 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 had submitted a bundle of documents hereinafter referred to as bundle A1 and has called two witnesses, whilst the respondent has called one witness and submitted a bundle of documents hereinafter referred to as bundle B2.

APPLICABLE LAW
46. 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 what 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.

47. 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.”

48. 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.

49. Giving rise to this matter, it is the allegations of misconduct that were preferred against the applicant. These allegations, amongst others, included, promoting racial tension at the school, soliciting bribe from the service provider, making unilateral decisions without consulting, or involving the school governing body (SGB) and so on. The respondent’s version is that these allegations were serious in nature. I do agree. In the wake of those allegations, the respondent decided to place the applicant on precautionary transfer effective on 1 November 2022. The purpose of that precautionary transfer was accordingly to conduct the investigation into such allegations.

50. It is common cause that the applicant was then transferred to the district office. I wish to record that at this stage no disciplinary process has been taken by the respondent, but this is a measurement to investigate if there were grounds to make a case against the applicant and if so, invite him to a disciplinary enquiry. 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.

51. 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 district office. Even after 90 days the respondent failed to finalize the disciplinary enquiry or no disciplinary proceedings were instituted against the applicant.

52. As already read the definition of “unfair labour practice”, it then follows that I ought to determine if the precautionary 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.

53. I firstly wish to record that the two arbitration awards issued by the GPSSBC relied upon by Mr. Mayet, are not relevant for the purposes of this award. They specifically deal with suspensions. For instance, in the Labour Court decision of Ngwenya v Premier of Kwa-Zulu Natal (2001) 8 BLLR 924 (LC), the main dispute was unfair suspension. The judgement did not deal with the question of precautionary transfer.

54. The transfer of an educator is governed by section 8 of the Employment of Educators Act, 76 of 1998 as amended. For a transfer to 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 a salary reduction.

55. 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 wellbeing or safety of any person at the workplace.

56. 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.

57. The applicant alleged that section 38A payment was stopped following the respondent’s decision to place him on precautionary transfer. It is the version of Mr. Selowa that the applicant’s claim of section 38A has no application in this dispute. It is common cause in this matter that section 38A payment exists between the employee and the SGB. It is further common cause that the SGB should make an application to the Head of Department to pay remuneration in terms of section 38A.

58. However, there is a letter from the HOD appointing the District Director, Mrs. Nkutha, to take over the functions of the SGB. Nonetheless, I am of the view that the appointment of Mrs. Nkutha to take over the functions of the SGB is not sufficient to conclude that the respondent had assumed the duties and responsibilities of the SGB. I am further of the view that this section 38A does not amount to benefit. However if the applicant wishes to pursue a claim further, he still has the remedy in terms of section 73A of the BCEA against the SGB, not against the respondent. I have no jurisdiction to deal with this issue under unfair labour practice.

59. 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.

60. 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.
61. On the premises, I make the following ruling.

AWARD

62. I find that the applicant, Themba Raymond Nkosi, 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.

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

P. Maitsha
ELRC Panelist