ELRC47-23-24KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN DURBAN TEACHER’S CENTRE
Case No ELRC 47-23-24 KZN
In the matter between
SADTU O B O KHOZA NTOMBIFUTHI PRUDENCE Applicant
and
DEPARTMENT OF EDUCATION KWA ZULU NATAL Respondent

ARBITRATOR : AS Dorasamy
HEARD : 13 SEPTEMBER 2023
DATE OF AWARD : 21 SEPTEMBER 2023
SUMMARY : Labour Relations Act 66 of 1995 – Section 186 (2 (a) - alleged unfair
Labour Practice -Benefits: Acting Allowance

PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on the 13 September 2023 the evidence was completed. This matter was dealt with under the auspices of the Education Labour Relations Council (ELRC) Durban Teacher’s Centre boardroom in Durban. Mr B Hadebe of SADTU represented the applicant Ms Khoza Ntombifuthi Prudence and Mr M Bejanath represented the respondent. The parties submitted written closing arguments on the 20 September 2023. The party’s submissions and the applicable provisions of the applicable circulars relating to the matter were considered when I arrived at my decision. As a consequence of the dispute of facts the matter was set down for hearing.

THE ISSUE IN DISPUTE
2 I am required to determine whether the respondent perpetrated an act of Unfair Labour Practice against the applicant in respect of her allowance.

THE BACKGROUND TO THE DISPUTE
3. The applicant was given a stint to act as Head of Department. When the first period ended the post was advertised because the applicant was pregnant and she did not apply for the acting position for the second period.

4. The applicant alleges that she be re-instated as the Department Head and be paid for the period as she was still supposed to act in the position. The respondent challenges the applicant’s right to act in the second period and prays for the matter to be dismissed.

5. All documents referred to had been made available to the parties at arbitration. The markings of the documents were standardised with the parties at the arbitration.

APPLICANT’S (EMPLOYEE) OPENING STATEMENT
6. She was appointed to act as Departmental Head and her removal resulted in her forfeiting her acting allowance. She seeks to be reinstated as the Departmental Head and be paid for the period she was supposed to be acting in the post.
RESPONDENT’S OPENING STATEMENT
7. The applicant’s dispute is about Unfair Labour Practice. She was appointed to act as Departmental Head from 1 June 2022 to 31 December 2022. She thereafter went on maternity leave from 1 February 2023. The school had to fill the post. As she was going on leave her acting position was not renewed.

8. Resolution 8 of 2002 regarding acting allowance clearly states that a person gets acting allowance if she acts in the position. She could not act during her maternity leave as she was not in school. She did not perform her duties in terms of the Resolution.

SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.

Ms NTOMBIFUTHI PRUDENCE KHOZA
Ms Khoza testified to the following effect:
9. She is currently at Maphumuzana Primary School hereinafter referred to as the school as an educator post level 1. She started in the school in 2014.

10. As a level 1 teacher she held an acting position that was created because Ms Ndlovu had resigned. The post was advertised and filled by her from 1 June 2022 to 31 December 2022 and she was paid.

11. In January 2023 it was not renewed and she did not get a letter terminating her services. Her contract was from 1 June 2022 to 31 December 2022.

12. She returned to work in January 2023 before the school opened (a week before the other teachers returned). The principal called her to school via an SMT chat group. There were other teachers acting.

13. She knew that her post was terminated because the post was advertised on the 16 January 2023. She did not apply for the post because they were looking for a person to replace her. The principal told her that because she was pregnant and would leave soon as it was confirmed by her doctor.

14. She was not going to leave school in January 2023. The doctor recommended that she could leave on 14 February 2023. The maternity policy stipulates 4 months. In November 2022 she informed the principal via the doctor’s note about her maternity leave.

15. She discussed the matter with the principal. In September 2022 she informed the principal that she was pregnant.

16. On 16 January 2023 she gave the doctor’s note to the principal but did not tell her about the acting allowance but the principal gave her leave forms to complete. She completed the forms in January 2023 and the principal told her that the circuit manager told her that she must not renew the acting contract.

17. She knew that the post was advertised. She was removed from the post because she disclosed her pregnancy.

18. Educators were asked to apply for the acting post and teachers applied for the post. Ms Madonsela was appointed to act and she is still acting in the position.

19. She feels she was unfairly treated because the principal did not want to hear her side of the story. She was appointed through an interview and the person acting now did not go for an interview.

Under cross-examination she stated that
20. The procedures unfair because she was pregnant and the principal did not want her to act.
21. She knew that her contract was ending on 31 December 2022 and there was no expectation to continue to act.

SIBONELO SHAZI
The salient aspects of his evidence are recorded below.
22. He is a member of the SGB representing teachers. Ms Madonsela is acting in the post

Under cross examination he stated as follows:
23. He was not part of the interviews for the post.

Ms ZANELE KHUMALO
The salient aspects of her is recorded below.
24. She is a member of the SGB and was present at the interviews for the post.

EVIDENCE ON BEHALF OF THE RESPONDENT
RESPONDENT’S CASE
Ms NONDUMISO LORRAINE DLOMO
The salient aspects of her evidence are recorded below.
25. She is employed at the school as principal and did not deny her acting in 2023. The applicant was to act from 1 May 2022 to 31 December 2022.

26. In January 2023 she was not appointed to act because she was going on maternity leave. In
November 2022 she submitted a doctor’s note and maternity leave forms.

27. Only Ms Madonsela wanted to act and her appointment was sanctioned by Ms Khumalo and the Developmental Head.

28. She told the applicant that her acting position would end on 31 December 2022
Under cross examination by the she stated as follows:
29. The applicant recorded the minutes. The SGB never complained about the acting position.

CLOSING ARGUMENTS
30. The parties submitted written closing arguments were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT
THE RELEVANT LEGAL PRINCIPLES

31. This matter relates to an acting position. Initially the applicant was appointed to act from 1 May
2022 to 31 December 2022. Thereafter she fell pregnant and submitted maternity leave forms to go on leave.

32. The ELRC Collective Agreement Number 8 of 2002 relates to Payment of Acting Allowance for an Educator acting in a Higher Post where the permanent incumbent is absent.
The following from the Resolution are relevant to determine this dispute:
Annexure A:
An educator complying with the minimum requirements in paragraph 2 (2) of Chapter B of the Personnel Administration Measures, shall be appointed, in writing, by the employer, to act. An educator who has been appointed to act in a certain post will be subject to all the responsibilities appropriate to the post for the period during which he/she is appointed.

5. POLICY PROVISIONS
5.3. An appointment of an educator to act in a higher post is subject to prior approval being obtained from the relevant Delegation as indicated hereunder:
SCHOOL BASED EDUCATORS - MANAGER: HR SUPPORT
5.4. Under no circumstances should an educator be allowed to assume duties in an acting capacity in a vacant post before formal approval is obtained and conveyed to the institution/ office where the vacancy, exists. In this regard it must be noted that the acting allowance will not be paid from a date prior to the date of approval. It is therefore in the interest of the office/ institution to ensure that the process relating to the nomination of an educator for the vacant post is finalized without delay.
5.9. An educator who has been appointed to act in a higher post will be required to execute all the duties and responsibilities attached to the higher post for the duration of the acting appointment.

33. The applicant had been appointed to act from the 1 May 2022 to 31 December 2022. The contract terminated on 31 December 2022 because that was the end date of the contract. Further she fell pregnant and informed the principal of her pregnancy in November 2022.

34. She was advised by the principal that in terms of the Resolution viz clause 5.9 she could not be appointed to act and that the post had to be advertised.

35. When the post was advertised only Ms Madonsela applied for the post and she was appointed to act until 31 December 2023.

36. It is also important to note that the Circuit Manager had advised the principal not to renew her contract.

APPLICATION OF THE LAW TO THE FACTS
37. The applicant was on a fixed term contract that ended on 31 December 2022 (effuxion of time). She did not apply when the post was advertised again.

38. In any event she could not be considered because of ELRC Collective Agreement Number 8 of 2002.

39. The applicant was not offered another approved contract to justify her claim of Unfair Labour Practice. The matter was dealt with in the terms and conditions of the ELRC Collective Agreement Number 8 of 2002.

40. As a consequence of the above I make the following award.

AWARD
41 The respondent, Department of Education: Kwa-Zulu Natal did not committed an unfair labour practice relating to benefits when the applicant’s acting appointment was not renewed. .

DATED AT DURBAN ON THIS 21 DAY OF SEPTEMBER 2023.


A S DORASAMY