ELRC835-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN PORT ELIZABETH

Case No: ELRC835-22/23EC

In the matter between

S Mbena Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: Anthony Walter Howden

HEARD: 31 August 2023

DATE OF AWARD: 13 September 2023

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (a) - alleged unfair conduct relating to demotion.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for Arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 7 of the ELRC Constitution: Dispute Resolution Procedures Annexure C (As amended 26 May 2021). The arbitration commenced on 18 May 2023 and was concluded on 31 August 2023 at the offices of the Department of Education - Eastern Cape in Port Elizabeth.

2. The Applicant, S Mbena – Persal number 15556476, was present and was represented by Adv FE Le Roux. Instructing attorneys Smailes Attorneys.

3. The Respondent, Department of Education - Eastern Cape, was represented by Ms A Slabbert from the Labour Relations Department.

4. On the final day the parties requested that Heads of Argument/Closing Arguments be done in writing. It was agreed that the parties would submit written Heads of Argument/Closing Arguments simultaneously on 7 September 2023.

5. The Heads of Argument/Closing Arguments were received timeously and taken into consideration when drafting this award.

ISSUES IN DISPUTE

6. This matter came before the Council in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether or not the Respondent committed an Unfair Labour Practice – demotion, by placing the Applicant at the District Office.

BACKGROUND TO THE DISPUTE

7. The Applicant was employed by the Respondent as a Principal at the Walmer Primary School in Port Elizabeth.

8. On or about 1 September 2022 after a number of incidents at the school involving the Applicant, the then Circuit Manager, Mr Stoffberg had verbally informed the Applicant to remain at home to allow the Respondent to resolve the situation at the school.

9. On or about 16 September 2022 the Applicant was given an application/displacement form to complete which the Applicant declined to do.

10. On or about 1 November 2022 the Applicant received a letter from the Respondent informing the Applicant that she was to report to the District Office of the Respondent and hand over the keys and property of the school. The Applicant currently still reports to the District Office.

11. The Applicant wishes to return to her position as Principal at the Walmer Primary School in a manner that allows her to fulfil the role, and

12. The Council must direct the Respondent to take such steps as may be necessary to ensure that the Applicant is able to continue to fulfil her role as Principal, and/or

13. Compensation and/or just and equitable relief.

SURVEY OF EVIDENCE AND ARGUMENT

14. The parties concluded a Pre-Arbitration Meeting Minutes which is dated 22 August 2023 (Applicant) and 17 August 2023 (Respondent). The following is common cause between the parties:
- That the Applicant has been employed as a Teacher and Head of Department at Walmer Primary School since 2004.
- That the Applicant was promoted to the position of Principal in 2019.
- That the Applicant earns a basic salary of R53 754.50 per month.
- That during or about March 2022 the then School Governing Body (SGB) chairperson, Faith Makwana, and a teacher who held an SGB appointment, Sindiswa Tantsi, withdrew money from the school’s account which was subsequently stolen whilst in Makwane’s possession.
- That this led to an investigation by the South African Police Services (SAPS) as well as the Respondent. Makwane was suspended from her duties as SGB chairperson as a result of the incident.
- That the theft incident, coupled with issues regarding the boundary fence and water drainage on the school premises, caused unhappiness with parents, members of the SGB and the community. None of these issues were within the Applicant’s control or scope of duties and fall within the scope of the Municipality and the Respondent.
- That during or about July or August 2022 the Applicant was approached by Makwane and a member of the 2022 SGB (Zamase), Ntombekhaya Tshothso Mtati and Nandipha Tembani. Tembani and Mtati demanded that the Applicant provide her with the Applicant’s office keys which the Applicant declined to provide.
- That on or about 22 August 2022 the ANCYL called a meeting at the school which was attended by the Respondent’s representatives.
- That on or about 23 August 2022 Gqeberha KTV news ran a story with the title Walmer Primary School Principal Suspended. The Applicant had not been suspended by the Respondent.
- That on or about 25 August 2022 the Applicant was prevented from leaving the school premises to attend a meeting by Mtati and Tembani. The Applicant was prevented by Mtati and Tembani from leaving the premises.
- That Mtati, during 2022, was not a SGB member. That Mtati is the 2023 SGB chairperson. Tembani was not a parent or guardian of a child at the school in 2022 or 2023.
- That on or about 31 August 2022 a meeting was held at the school premises for concerned parents and community stakeholders.
- That the Applicant was denied entry to the meeting held on 31 August 2022 by community members.
- That on or about 1 September 2022 the Applicant was verbally informed by Mr Stoffberg that she should remain at home in order to allow the Respondent time to resolve the situation at the school.
- That on or about 16 September 2022 the Applicant attended a meeting at the Respondent where she indicated inter alia that she declined to apply to be considered as a displaced employee.
- That on or about 13 October 2022 the Applicant’s legal representative wrote to the Respondent. The Respondent did not respond to this letter.
- That on or about 1 November 2022 the Applicant received a letter from the Respondent confirming that she was to report to the District Office of the Respondent and hand over the keys and the property of the school.
- That on or about 4 November 2022 the Applicant’s legal representative sent a letter to the Respondent. The Respondent did not respond to this letter.
- That on or about 15 December 2022 the Applicant filed a formal grievance. The grievance was not dealt with by the Respondent.
- That on 16 January 2023, following a letter from the Applicant’s attorneys on 12 January 2023 addressed to the Respondent, the Applicant reported for duty as normal. The Applicant was informed by Mtati, in front of teachers, that Mtati is in charge of the school and the Applicant must leave immediately.
- That the Applicant reports each day to the Department of Education where she has thus far not been allocated meaningful work.

15. The issue in dispute is whether the Respondent committed an unfair labour practice by placing the Applicant at the District Office.

16. Both parties submitted bundles of documents. Applicant - Bundle A. Respondent – Bundle B. None of the documents were in dispute and it was agreed that the documents’ contents were what it purported to be.

17. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

18. The Applicant, after being sworn in, stated the following:
- That on 1 August 2022 she was supposed to attend a meeting (Bundle A page 5).
- That when she left for the meeting she was told by Tembani/Mtati she was not allowed to leave. That she had called the SAPS.
- That for the meeting held on or about July/August 2022 with the ANCYL she was not at the meeting as they had intimidated her and she had to go home. That she was blamed by the ANCYL who blamed her for the fence issue.
- That she has not been suspended and that the Respondent has not taken disciplinary action.
- That the Respondent had arranged a meeting with the community, however she was not invited and has never been asked for her input/version.
- That on 31 August 2022 she was invited to a meeting at the school, however was denied access by the community via Mtati.
- That she was then informed by the Respondent to stay at home.
- That she was given a displacement form by the Respondent, however declined to complete/be displaced and requested to be returned to the school.
- That she was then directed to report to the District Office by the Respondent. (Bundle A page 37). That the letter stated that it was an “interim measure”.
- That the Respondent did not respond to her legal representatives’ letters or deal with her grievance.
- That on 16 January 2023 she went to the school and Mtati had told her that she, Mtati, was in charge and she does not work at the school.
- That the Respondent had done nothing against the “wrongdoers and the SGB”.
- That Respondent did not have a constructive meeting with her with regards to the issues at the school or her return to the school.
- That she needs to go back to school.

The Respondent’s Submissions

19. The Respondent’s witness, P Van Vuuren – Acting CMC Head for CMC, after being sworn in stated the following:
- That Mr Stoffberg had retired.
- That there was a meeting on 13 September 2022 and Stoffberg had given the Applicant the displacement form.
- That the safety of an employee is paramount and if it cannot be guaranteed, it is important to look at displacement.
- That there is a process with displacement, not readily approved.
- That they had a massive meeting at the school that involved the department/the community and SAPS in an attempt to get the Applicant back. The meeting became threatening and chaotic.
- That the meeting on 31 August 2022 did not end well and was scary.
- That after the meeting the Applicant was given the displacement form, however she refused to complete the form.
- That the department could not impose displacement on a person, hence the letter to report to District Office.

20. During cross-questioning the witness confirmed the following:
- That the Respondent is not without powers over the SGB.
- That the Respondent had not heard anything that the SGB had done wrong to be able to respond.
- That it was community members that had chased the Applicant away, not necessarily a statutory member.
- That since Stoffberg left, a new Circuit Manager was appointed and he had recently had a meeting with the SGB and they still stand by their decision.
- That he was not present at this meeting, however was told about it by the new Circuit Manager and he was also told that it was not safe.
- That if an employee returns to a school that is unsafe and if there is loss of life or limb, the Respondent would be seen as reckless.
- That the Applicant’s case is an exceptional case as Principals are not normally chased away.
- That they had tried their best and it was not safe for the Applicant to return and the SGB would entail another processes.
- That there were two engagements with the SGB in 2023 and their response was the same.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

21. Section 186 (2) (a) of the LRA states:
“Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving - 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”.

22. It is trite in law that demotion could also mean a reduction or diminution of dignity, importance, responsibility, power or status even if the person’s salary, attendant benefits and rank are retained.

23. Under normal circumstances I would agree that the Applicant had been demoted as all the above aspects are reflected in the Applicant’s situation.

24. It is however a very unique situation that the Applicant finds herself in. The Applicant has not been “removed” by the Respondent for any operational requirement(s) or even misconduct.

25. It is common cause that the Applicant was removed for her own safety at the school. This volatile environment is evident in the documents submitted by the Applicant. (Bundle A Pages 32 to 35) as well as the submission made by both parties.

26. In the proceedings and in the Closing Arguments the Applicant stated that the Respondent had breached the contract of employment by denying her the right to work, and therein lies the unfair labour practise, while making reference to a number of informative judgements (Pre 1995 and the LRA).

27. It is trite that issues that fall within the ambit of the Law of Contract, including employment contracts, fall within the jurisdiction of the Labour Court or High Court and the Council lacks jurisdiction to make a finding in this regards.

28. It is evident though that the Respondent’s actions can be placed in question. The Applicant was issued a letter on 1 November 2022 informing her to report to the District Office as an interim measure. We are now in September 2023 and the Respondent has still not come up with a solution for the Applicant’s situation. It is common cause that the Applicant still reports to the District Office.

29. The Applicant stated that she was never consulted by the Respondent with regards to the situation at the school and was eventually given the displacement form. The Applicant further stated that the Respondent had not attempted to “mediate” with the SGB and community in an attempt to get the Applicant back at the school and had merely taken the route with the least resistance.

30. The Respondent has not been able to rebut the Applicant’s statements in any meaningful way and did not call a witness that could explain what process was followed by the Respondent/How the Respondent had come to the decision finally made/Why the Respondent had come to the decision they made and what the Respondent had done to get the Applicant back to the school.

31. The “summary of events” (Bundle B page 1) predominantly addresses the issues at the school itself, which meetings were with the community and the SGB in the absence of the Applicant. Nowhere is there any mention of meetings/talks about the Applicant’s returning to the school.

32. In the proceedings and the Closing Arguments, the Applicant stated that the Respondent never took action against the SGB/wrongdoers that not only chased her away on more than one occasion, but damaged her vehicle in the process.

33. The Respondent once again could not rebut the Applicant’s statements in any meaningful way and did not call a witness to explain the Respondent’s actions or lack thereof and what the Respondent intended to do with regards to the Applicant at this point.

34. The Respondent’s only witness, Van Vuuren, conceded that the Respondent has authority/power over the SGB. The witness further conceded that the Respondent had not taken any action against the SGB/community even though they have been identified.

35. The Respondent’s witness further stated in cross-questioning that they had not seen or heard anything that had been done by the SGB that was wrong. Implying they did not have cause to take action.

36. Besides their behaviour, the fact that they had disrupted the whole school, I cannot see how an SGB can tell the Respondent that they do not want a specific Principal at a school without giving very good reasons and the process itself involving the Principal. Especially if that Principal has already been at the school for a number of years.

37. It would seem as if a unilateral decision was made by the Respondent without the Applicant’s involvement and the Applicant was expected to accept her fate. This is evident in the fact that the Applicant’s Grievance was merely ignored.

38. The Applicant in the Closing Arguments stated that there was no evidence that the safety situation in 2023 has actually been such that the she cannot return.

39. No evidence was lead by the Respondent indicating that the situation at the school was still unsafe. The Respondent’s witness offered hearsay evidence with regards to the new Circuit Manager’s meetings with the SGB, however this remains hearsay evidence and the Respondent had the opportunity to call the new Circuit Manager to testify.

40. The Respondent further failed to call the SGB, the people that seem to have the biggest issue with the Applicant. The SGB could have at least explained why they do not want the Applicant there/Still do not want the Applicant there and what the safety situation at the school was at that point in time and what would happen if the Applicant returned.

41. It has not been specifically said, however it would seem as if there is more to this whole situation than just the background issues. The responsibility still remains with the Respondent to deal with the situation and take the necessary action required.

42. The Applicant has requested to be returned to the school so that she can perform her duties. The Applicant has further requested measures be put in place to ensure her safety and ability to perform her duties.

43. It is not within the Council’s or a Commissioner’s powers or authority to instruct a Respondent to appoint security guards/take action against the SGB, amongst other things listed, as the Council would not be able to enforce such an award. The Labour Courts have made it very clear that awards need to be enforceable and have even criticised a Commissioner for reinstating an employee and ordering that the employee be given a final written warning, as the LRA does not give a Commissioner the powers to order the issuing of a warning.

44. What is required is that I need to look at this holistically, specifically due to the SGB/Community’s actions in the past.

45. The Applicant attempted to report for duty at the school on 16 January 2023, however was once again chased away. The Applicant, as mentioned above, has requested that certain measures be put in place to protect her on her return to school. This request gives me the impression that even the Applicant is weary and/or knows what could happen on her return to the school.

46. As a Commissioner I need to take the issue of safety into serious consideration when it comes to what relief should be granted. I honestly believe it would be somewhat irresponsible of me as a Commissioner to throw the Applicant into the “Lion’s Den” to fend for herself by placing the Applicant back at Walmer Primary School. In this day and age violence has almost become the norm of the day and even more so in the township areas.

47. I also need to take the school into consideration, more specifically the interests of the child when it comes to teaching and learning, as the school has experienced enough disruptions in the past.

48. To this end, I make the following findings:

49. First: The Respondent has committed an Unfair Labour Practice – demotion by after removing the Applicant to the District Office, by not providing the Applicant with work commensurate with her seniority and salary grade and/or by not placing the Applicant for the past 10 months at a school as a Principal at the same post level.

Second: The Respondent must place the Applicant into a suitable and similar position at a school, within the Nelson Mandela Metropolitan Municipal District, on the same Post Level (Status) as the Applicant currently holds, as the Principal of that school.

If the Respondent is unable to place the Applicant in a suitable and similar position such as the post the Applicant currently holds, the Respondent must place the Applicant in a suitable Promotion post at a school, within the Nelson Mandela Metropolitan Municipal District, on the same Post Level as the Applicant currently holds, as the Principal of that school.

The Respondent is to place the Applicant into this position by no later than 1 March 2024 and inform the Applicant accordingly.

50. I therefore make the following award:

AWARD

51. The Respondent, Department of Education – Eastern Cape, has committed an Unfair Labour Practice – demotion after removing the Applicant, S Mbena – Persal number 15556476, to the District Office, by not providing the Applicant with work commensurate with her seniority and salary grade and/ or by not placing the Applicant for the past 10 months at a school as a Principal at the same post level.

52. The Respondent, Department of Education – Eastern Cape, is instructed to place the Applicant, S Mbena – Persal Number 15556476, into a suitable and similar position at a school, within the Nelson Mandela Metropolitan Municipal District, on the same Post Level as the Applicant currently holds, as the Principal of that school.

53. If the Respondent, Department of Education – Eastern Cape, is unable to place the Applicant, S Mbena – Persal Number 15556476, into a position as mentioned in paragraph (52) above, the Respondent, Department of Education – Eastern Cape, is instructed to place the Applicant, S Mbena – Persal Number 15556476, into a suitable Promotion post at a school, within the Nelson Mandela Metropolitan Municipal District , on the same Post Level as the Applicant currently holds, as the Principal of that school.

54. The Respondent, Department of Education – Eastern Cape, is to place the Applicant, S Mbena – Persal Number 15556476, into this position by no later than 1 March 2024 and inform the Applicant accordingly.

Panellist: Anthony Walter Howden
ELRC