Commissioner: Jacques Buitendag
Case No.: ELRC1333-24/25WC
Date of Award:01 July 2025

In the Arbitration between:

MVUYISI STANLEY DAMBA
(Applicant)

and

DEPARTMENT OF EDUCATION WESTERN CAPE
(Respondent)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place virtually via the Teams platform on 16 April- and 4 June 2025. The proceedings were digitally recorded.
2. The applicant Mr. M S Damba was presented by Ms. R Jacobs, an attorney at C&A Friedlander. The respondent being the Department of Education Western Cape, was represented by its Labour Relations Officer, Ms. N Hlathuka.
3. After conclusion of the proceedings on 4 June 2025 the parties have requested to submit written closing arguments. I have received the closing arguments on behalf of the respondent and applicant on 11 June 2025.

THE ISSUE IN DISPUTE

4. The dispute concerns an alleged unfair labour practice relating to the applicant’s demotion in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (LRA). I must determine whether the respondent’s conduct constitutes an unfair labour practice involving demotion, and if so, I must determine the appropriate remedy.
5. This dispute also travers section 186(2)(b) of the LRA because the applicant was demoted following disciplinary action short of dismissal.

BACKGROUND TO THE ISSUE

6. The applicant is employed with the respondent since 1993. He progressed to the position of Principal at Sobambisana Primary School. In July 2024 an incident happened at the school involving the applicant and the Deputy Principal Mr. Bonani. This incident caused the respondent to charge the applicant with the following two counts of misconduct:
   “Charge 1. It is alleged that you are guilty of misconduct in terms of Section 18(1)(t) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that during July 2024, you displayed disrespect towards Mr Bonani, Deputy Principal associated with Sobambisana Primary School, by addressing him as “kwedini” translated as “small boy” in front of the staff members.
   Charge 2: It is alleged that you are guilty of misconduct in terms of Section 18(1)(r) of Act, in that during July 2024, you threatened to assault Mr Bonani, Deputy Principal associated with Sobambisana Primary School, by pushing him against the wall and/or threatening to hit him.”
7. The applicant was not suspended. A disciplinary hearing was scheduled for 5 December 2024. The applicant did not attend the disciplinary hearing. The applicant was, however, at the school on 5 December 2024. After the Presiding Officer of the disciplinary hearing contacted the school, a medical certificate was forwarded to the Presiding Officer. The medical certificate indicated that the applicant was on approved sick leave for the period of 4 December 2024 to 13 December 2024. In these circumstances the Presiding Officer decided to postpone the disciplinary hearing.
8. The Presiding Officer then send an email on 5 December 2024 to the school’s email address informing the applicant that the disciplinary hearing was rescheduled for 21 January 2025. There is a dispute between the parties whether the applicant in fact received this email and whether he was properly notified of the rescheduled date. In any event, the applicant did not attend the disciplinary hearing on 21 January 2025 and the Presiding Officer decided to continue with the disciplinary hearing in the applicant’s absence.
9. The respondent called the complainant, Mr. Bonani, as a witness during the disciplinary hearing. The Presiding Officer accepted the version of Mr. Bonani and found the applicant guilty of the allegations levelled against him. The Presiding Officer considered various aggravating factors and then imposed, as an alternative to dismissal, the sanction of demotion from Principal to Post Level 1 Educator.
10. The respondent implemented the sanction and the applicant was demoted to a Post Level 1 Educator with effect from 1 February 2025. As Principal the applicant earned R71931.50. After his demotion he earned R33 777.55.
11. The applicant lodged an appeal, but the appeal was not considered because the applicant filed the appeal outside the stipulated 5 day period.
12. The applicant seeks an order that the demotion be declared an unfair labour practice and be set aside, with reinstatement to the position of Principal with retrospective effect from 1 February 2025.
13. The respondent claims that no unfair labour practice was committed. The respondent prays that the commissioner find that the applicant’s demotion was fair and that the applicant now be offered an opportunity to choose between dismissal or demotion.

SUMMARY OF EVIDENCE AND ARGUMENT

14. I have considered all the evidence and argument. Because section 138(7) of the LRA requires an award to be issued with brief reasons for the findings, I shall only briefly summarise the evidence and arguments. If I do not refer to particular evidence and argument, it does mean that I did not consider it.

The applicant’s case

15. The applicant Mr. Damba testified that his relationship with the Deputy Principal Mr. Bonani was challenging because Mr. Bonani would not adhere to instructions and his performance had a negative impacted on the school. He took action to address Mr. Bonani’s conduct but it yielded little results.
16. The applicant testified that despite being booked off sick from 4 to 13 December 2024 he attended school because of work pressure. He did not attend the disciplinary hearing scheduled for 5 December 2024 because he had to attend to work and to a meeting urgently. He requested his secretary to email the medical certificate to the Presiding Officer.
17. The applicant submitted that he was unaware that the disciplinary hearing was rescheduled to 21 January 2025. The applicant explained that he had taken family responsibility leave from 21 to 27 January 2025 to attend to a ritual outside the province. On 20 January 2025 he also spoke to Mr. Bonani and delegated his duties to him for the above-mentioned period of absence. The applicant testified that he informed his secretary to email an affidavit in support of the application for family responsibility leave along with a letter delegating his responsibilities to Mr. Bonani to the Circuit Manager. The applicant submitted that he had spoken to the Circuit Manager about taking family responsibility leave.
18. According to the applicant he only discovered that the disciplinary hearing was held in his absence when he received the Presiding Officer’s report on 29 January 2025.
19. The applicant submitted that he is not guilty of the allegations levelled against him. He did not call Mr. Bonani “kwedini” nor did he push him against a wall or threatened to assault him.
20. The applicant submitted that the demotion was unfair.
21. Ms. Z Sinkempele is the secretary at Sobambisana Primary School the school. She testified that she monitors the school’s email address. When she receives emails addressed to the applicant she will print them out and hand them to the applicant.
22. Ms. Sinkempele confirmed that she has emailed a medical certificate on 5 December 2024 to the Presiding Officer after being requested to do so by the applicant.
23. Ms. Sinkempele testified that she handed the Presiding Officer’s replying email dated 5 December 2025 to the applicant. The email reads as follows: Dear Mr. Damba and Ms. Hlathuka. Subject to Mr. Damba’s medical certificate, the hearing has been postponed to the 21st of January 2025”. She stated that the applicant was busy with other people in his office when she handed the email to him and that she cannot confirm whether the applicant has read the email.
24. Ms. Sinkempele is aware that the applicant was on leave from 21 January 2025. She is unaware whether the applicant submitted a leave form.

The respondent’s case

25. Mr. Z Bonani, the Deputy Principal of Sobambisana Primary School testified that on 19 July 2024 he was speaking to a Mr. Mtheza and Mr. Majuqulana who were attending to a leaking ceiling when the applicant approached them. The applicant told him that he is making a noise and called him “kwedini”. The applicant proceeded to drag him towards the staffroom, he resisted and the applicant then pushed him against a wall. Some staff members then came to intervene. He felt disrespected and humiliated and reported the incident. Mr. Bonani also presented evidence about an acrimonious relationship between him and the applicant preceding the events of 19 July 2024.
26. Mr. Bonani confirmed that the applicant informed him that he wouldn’t be at school from 21 to 27 January 2025 and delegated the Principal’s responsibilities to him.
27. Adv. Sibanda testified that he chaired the applicant’s disciplinary hearing. After he postponed the disciplinary hearing on 5 December 2024 he discovered that the applicant was at work in spite of the medical certificate that was emailed to him. He took a dim view of this. Adv. Sibanda submitted that the applicant was duly notified of the proceedings scheduled for 21 January 2025 and he proceeded with the disciplinary hearing in the applicant’s absence. He considered the evidence presented by the respondent and found the applicant guilty of the allegations. He considered the applicant’s conduct and lack of explanation for his absence contemptuous. Adv. Sibanda explained that the allegations against the applicant are serious and that he would have dismissed the applicant but have decided to give the applicant another chance. He decided to impose the sanction of demotion from Principal to a Post Level 1 Educator.
28. Adv. Sibanda testified that he did not offer the applicant an opportunity to present mitigating arguments because he did not have the applicant’s contact details. Adv. Sibande further confirmed that he did not sought the agreement of the applicant before imposing the sanction of demotion.
29. Adv. Sibande acknowledged that his finding may have been different had the applicant presented his case and responded to the allegations.
30. Mr. V Majuqulana testified that although he cannot recall the date, he recall the incident between the applicant and Mr. Bonani. He worked with a colleague, Mr. Mtheza, in the passage near the applicant and Mr. Bonani’s office. Mr. Bonani came to talk to them. When the applicant came out from his office he told Mr. Bonani that he was making a noise. Mr. Bonani denied that he was making a noise. The applicant then repeated what he had said and pulled Mr. Bonani by the arm into the staff room. Ms. Dada and Mr. Kiti came to deescalate the situation. Mr. Majuqulana testified that he didn’t expect to see such behavior from senior people. He did not witness the applicant pushing the Mr. Bonani against a wall and did not hear the applicant referring to Mr. Bonani as “kwedini”.
31. Mr. T Manganeng is the Circuit Manager at Metro East Education District. He denied that the applicant contacted him on 20 January 2025. He forwarded the emails about the notices of the disciplinary hearing to the applicant.
32. Mr. Manganeng confirmed that he received the applicant’s affidavit concerning his leave of absence and the delegation form on 21 January 2025.
33. He cannot confirmed whether or not the cultural ritual would fall under family responsibility leave. Mr. Manganeng testified that he did not receive a leave application form from the applicant.

Closing arguments

34. The comprehensive written closing arguments of the parties are on record and I have considered it. I will thus only provide a brief summary.
35. Ms. Jacobs referred to case law and to Schedule 2 of the Employment of Educators Act 76 of 1998 (EEA) and argued that the demotion of the applicant was unlawful and unfair. The applicant prays for the demotion to be set aside and that the applicant be retrospectively reinstated to his former position as Principal of Sobambisana Primary School. Ms. Jacobs further argued that it may be considered to remit the matter back to the respondent for a fresh disciplinary hearing before a new presiding officer if the commissioner find this appropriate.
36. Ms. Hlathuka argued that the applicant’s version that he was unaware that the disciplinary hearing scheduled for 21 January 2025 is implausible. Ms. Hlathuka further argued that the Presiding Officer’s findings about the applicant guilt on the allegations was correct and that the sanction of demotion that the Presiding Officer imposed was fair given the applicant’s conduct. Ms. Hlathuka argued that the reinstatement of the applicant to Principal of Sobambisana Primary School is inappropriate considering his failure to attend the disciplinary hearing and his conduct toward his colleagues.
37. Ms. Hlathuka argued that it was not possible for the Presiding Officer to request mitigating arguments from the applicant or offer the applicant an option of demotion as an alternative to dismissal as the applicant was not present at the disciplinary hearing. Ms. Hlathuka argued that to the extent that the Presiding Officer’s sanction may be unacceptable, the sanction ought to be turned into a dismissal as the employment relationship has been irretrievably broken down, alternatively that the applicant now be given the opportunity to choose between the demotion and dismissal.

ANALYSIS OF EVIDENCE AND ARGUMENTS

38. Section 186(2)(a) of the LRA by implication permits an employer to demote an employee provided that it is done fairly.
39. The onus is on the applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the respondent that gives rise to the unfair labour practice.
40. The first question to ask is whether the applicant was indeed demoted?
41. A demotion occurs if there is a change in the terms of conditions of employment that result in a material reduction of an employee’s remuneration, responsibilities, prestige or status or loss of benefits (see for example Ndlela v SA Stevedores Ltd (1992) ILJ 633 (IC) and Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services & Others (2008) 29 ILJ 2708 (LAC)).
42. The evidence shows that the applicant was indeed demoted from Principal to a Post Level 1 Educator with effect from 1 February 2025 following a disciplinary hearing.
43. The second question to ask is if the demotion was unfair?
44. Certain demotions may be fair it they are aimed at avoiding for example a retrenchment or a dismissal for factors such as incapacity or misconduct. But a demotion cannot be unliterally imposed, and the employer must first seek the consent of the employee (Van der Riet v Leisurenet Ltd t/a Heatlh and Racquet Club [1998] 5 BLLR 471 (LAC)). In other words the employee must agree to the demotion. In Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services and Others [2008] 12 BLLR 1179 (LAC) the Labour Appeal Court held that if the employee does not consent to the demotion, it is unlawful in terms of common law and unfair in terms of the LRA.
45. Schedule 2 item 8(2) of the EEA under the heading “Steps after disciplinary hearing” reads as follows: “With the agreement of the educator, the presiding officer may impose the sanction of suspension without pay or demotion as an alternative to dismissal (my emphasis). The wording of item 8(2) is unambiguous. It is clear that to impose a sanction of demotion on an educator, the agreement of the educator must be sought.
46. In casu the Presiding Officer did not seek the agreement of the applicant before imposing the sanction of demotion from Principal to Post Level 1 Educator. The respondent then nevertheless demoted the applicant with effect from 1 February 2025. The fact that the applicant did not attend the disciplinary hearing does not absolve the respondent. As was found in Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services and Others supra, the demotion of the applicant without his or her consent is unlawful and unfair in terms of the LRA. I find that the applicant has discharged the onus of proving that the respondent committed an unfair labour practice concerning demotion.
47. Commissioners have a wide discretion to determine the appropriate remedies in unfair labour practice cases. In Booysen v SAPS and another [2008] 10 BLLR 928 (LC) at 933 Cheadle AJ noted that unlike the list of remedies for unfair dismissal, the remedies for unfair labour practice are not limited to the ones specifically mentioned in the LRA.
48. As I have indicated earlier this dispute in terms of section 186(2)(a) also travers section 186(2)(b) of the LRA because the applicant was demoted following disciplinary action short of dismissal.
49. I have considered all the intricate complexities in this dispute to arrive at the appropriate remedies.
50. I am mindful of the Labour Court judgement in Moolman v ELRC and others (JR1358/2010). In Moolman the employee pleaded guilty to allegations of misconduct and was dismissed. On appeal to the MEC, the MEC replaced the sanction with a combination of a final written warning with a demotion. The MEC did however not seek the consent of Moolman for the demotion and the Labour Court referred the matter back to the MEC to reconsider the sanction. I do not believe that it is appropriate to refer the sanction only back to the respondent for reconsideration because the facts of the dispute before me are materially different. 1) The applicant did not attend a disciplinary hearing; 2) the applicant denies being guilty of the allegations; 3) the sanction of demotion was imposed by the presiding officer and not by the MEC and 4) the applicant’s appeal was not considered by the MEC because it was filed late.
51. I had also regard that the Presiding Officer was probably justified in proceeding with the disciplinary hearing on 21 January 2025 in the absence of the respondent based on the facts before him at the time. But this does not mean that his findings about guilt of the applicant based on the version of the complainant cannot be revisited. In this regard the Presiding Officer’s conceded that he is unsure if he would have come to the same findings if he was presented with all the evidence (and not only that of the complainant). I have noted from the brief evidence presented during this arbitration about the events in July 2024 that Mr. Majuqulana version that he did not hear the applicant calling the complainant “kwedini” although he heard other parts of the conversation and that also did not witness the complainant’s version the applicant pushed him my be contradictory to the version of the complainant. I am, however, mindful that the respondent has, for the purposes of this arbitration, not called other eyewitness, such as Mr. Mtheza, Ms. Dada and Mkiti who may shed more light on the events that the resulted in the charges levelled against the applicant.
52. I have also considered that the Presiding Officer did not comply with Schedule 2 item 17(a) of the EEA which provides that “Before deciding on a sanction, the presiding officer must give the educator an opportunity to present evidence in mitigation.” Although the applicant did not attend the disciplinary hearing it does not absolve the Presiding Officer from his duties in terms of item 17(a). The Presiding Officer had the school’s email address and contact details and he could have provided the applicant with an opportunity to present evidence in mitigation after he informed the applicant of the finding and reasons therefor (as provided in Schedule 2 item 16). I am also mindful that commissioners are not vested with discretion to decide or impose an appropriate sanction short of dismissal in cases of workplace incapacity or misconduct.
53. Ms. Hlathuka argued that it would be appropriate to reinstate the applicant to the position of Principal, but having regard to the fact that 1) the applicant was not suspended prior to the disciplinary hearing; 2) the finding of guilt may be overturned if all the evidence was presented to the Presiding Officer, 3) the Presiding Officer did not afford the applicant an opportunity to present evidence in mitigation of sanction; and 4) the Presiding Officer imposed a sanction of demotion without seeking the consent of the applicant, I find that is indeed appropriate to reinstate the applicant to the position of Principal. But this is not the end of the matter and does not totally absolve the applicant. The respondent must be afforded an opportunity to convene a fresh disciplinary hearing if it so wish.
54. Having considered all the factors, I find the appropriate remedies are to 1) set aside the sanction of demotion that was imposed and to retrospectively reinstated the applicant to his former position as Principal of Sobambisana Primary School; 2) compensate the applicant with the remuneration that he has lost as result of the unfair demotion and 3) allow the respondent, if it so choose, to conduct a fresh disciplinary hearing before a new presiding officer in accordance with a fair procedure that complies with Schedule 2 of the EEA.

AWARD

The applicant, Mvuysi Stanley Damba has discharged the onus of proving that the respondent, the Department of Education Western Cape committed an unfair labour practice concerning demotion.

1. The demotion of the applicant from Principal of Sobambisana Primary School to Post Level 1 Educator with effect from 1 February 2025 is set aside.
2. The respondent is ordered to retrospectively reinstate the applicant to the position of Principal of Sobambisana Primary School.
3. The applicant must report for duty on 2 July 2025.
4. The respondent must pay the applicant, on or before 15 July 2025 One Hundred and Fifty Two Thousand and Six Hundred and Fifteen Rand and Eight Cents (R152 615.80) less income tax and statutory deductions. This amount is the difference in remuneration between what the applicant has earned as Principal and what he has earned as a Post Level 1 Educator after his unfair demotion. (The amount is calculated as follows: Before demotion R71 931.50 – After demotion R33 777.55 = R38153.95 x 5 months (January to June 2025 with reporting date 2 July 2025).
5. The respondent may conduct if it so choose a disciplinary hearing afresh before a new Presiding Officer to consider the allegations against the applicant.

ELRC Panelist