04 November 2024 – ELRC275-23/24GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC275-23/24GP

In the matter between

Hajira Abraham Applicant

And

Education Department of Gauteng Respondent

ARBITRATION AWARD

The venue for the Arbitration was Johannesburg North District office (Braamfontein)

Date of award: 04 November 2024

Parties present:

Arbitrator: Mr C Khazamula

Applicant: Ms H Abraham

Applicant Representative: Mr Y Dockrat of Dockrat Inc

Employer’s Representative: Mr M Lefosa

DETAILS OF HEARING AND REPRESENTATION

The matter was an unfair labour practice dispute related to suspension in terms of s186 (2) (b) of the Labour Relations Act, 66 of 1995 (as amended) (LRA) and Part C of the Council’s constitution.
The dispute was set down for arbitration before me on 01 December 2023 and continued intermittently on various dates until it was concluded on 02 October 2024 at the Respondent’s offices.
The parties concluded a pre-arbitration conference virtually on 01 December 2023. On 27 August 2024, the Respondent changed their representative and a clarification of the pre-arbitration was conducted.
The parties submitted bundles of documents as evidence. The Applicant’s bundle of document was marked bundle ‘A’ and the Respondent’s bundle of documents was marked Bundle ‘R’.
The parties further submitted written closing arguments.
The proceedings were digitally recorded.

ISSUE(S) TO BE DECIDED

I have to determine whether the Respondent committed an act of unfair labour practice after the Applicant was charged, found guilty and imposed with a sanction of three (3) months suspension without pay and a final written warning or not.

BACKGROUND TO THE ISSUE

The Applicant was employed by the Respondent as an educator at Franklin D Roosevelt Primary School (the FDR”) as a mathematics educator.

On 15 February 2023, the Applicant was charged with the two (2) allegations of misconduct and found guilty on allegation 2 in that during 2022 while on duty at FDR, the Applicant unjustifiably prejudiced the administration, discipline, or efficiency of the school because she failed to teach grade 4 mathematics.

The Applicant was imposed with a sanction of three (3) months suspension without pay and a final written. The sanction was confirmed during the appeal process.

The Applicant thereafter referred a dispute of an unfair labour practice with the Council.

SURVEY OF EVIDENCE AND ARGUMENT

Summary of the Applicant’s Testimony and Evidence

The Applicant testified in chief and denied that when she was in class and that she did not teach. The days that she was absent from school were because she was on sick leave that was approved by the Respondent.
During term one (1) she taught grade four (4) mathematics using Caps ATP syllabus and not the trimmed ATP. The trimmed ATP covered fewer topics than the Caps ATP and they are same up to week 6. The Respondent sent the Caps ATP and later introduced trimmed ATP when Covid-19 started.
The Applicant provided explanation of the trimmed ATP and submitted that during term 1, the test was supposed to be written on the eighth (8) week however it was postponed to the ninth (9) week.
About the subject meeting presentation by the mathematics subject advisor, it gave a choice of either using Caps ATP or trimmed ATP. There was also a discussion in the Whatsapp group for Johannesburg North Educators about the choice of the ATP.
The Applicant used Caps ATP and she did not commit any wrong doing because everything in the trimmed ATP is covered in the Caps ATP.
The Applicant used trimmed ATP after Masingi checked the books and files and told her that the grade 6 at FDR were using trimmed ATP and that there should be uniformity with other grades.

Summary of the Respondent’s Testimony and Evidence

The Respondent’s 1^st witness

The Respondent’s first witness Danisani Masingi (“Masingi”) testified that she was the Respondent’s Senior Education Specialist and briefly stated her duties including monitoring mathematics intermediate face (Grade 4 to 6).
The FDR was scheduled for her visit during term one (1). On the day of the visit the Applicant was not available and it was reported that she got into an accident on her way to work. The grade five (5) teacher was also not available.
On 1 March 2022, Masingi revisited the school and requested the educators file and learners work for grade 4. She realised that the Applicant taught that which was not supposed to be taught on the first term according to the trimmed ATP. The DBE learners books were not marked and the content coverage was behind.
The Applicant was told of the Masingi findings and she indicated that she was absent due to health reasons and the Principal was aware of that. The Principal indicated that the Applicant was absent and did not submit a leave form hence she could not do anything. Masingi thereafter wrote a report.
During the feedback of the report, Masingi indicated the challenges and told them that since she visits the school once, the School Management Team (“the SMT”) must ensure that educators had everything they supposed to be given or have. She indicated that they must issue the trimmed ATP and the lesson plans to the Applicant. Masingi will conduct a follow up plan on 17 March 2022.
Masingi testified that before Covid-19 the Respondent used the Caps ATP. The learners sat at home for about three (3) months and when they returned the Respondent issued a trimmed ATP in 2021 to be used until 2023.
They had a mediation meeting of the trimmed ATP early in 2022, where all school were notified including the Applicant. The trimmed ATP reduced some topics and added a number of hours from the CAPS ATP.
The incorrect ATP impacted the learners nationally in terms consistency i.e. if a learners moves to another school, they must be able to continue lessons from where the learner left off in the previous school.
On 17 March 2022, Masingi came to check if the SMT gave what she instructed them to give to the Applicant, if she used the correct ATP and drafted the catch-up plan, Masingi found it difficult to see if the Applicant was following the correct ATP and there was no catch-up plan.

The Respondent’s 2^nd witness

The Respondent’s second witness, Eland Mabokela (“Mabokela”) testified that he was the acting departmental head for mathematics at FDR.
During the school first term of the year 2022, they had a meeting with mathematics educators for all grades where he emphasised about the ATP and markings. He handed the policies to the educators.
The Applicant took the trimmed ATP and stated that she will not follow the trimmed ATP and she was going to use the Caps ATP. Mabokela advised the Applicant that they have been mandated to use a trimmed ATP. The reasons for the trimmed ATP was to not overwhelm the learners and the Respondent has reduced it so that learners can adjust after Covid-19. Some of the cut off topics were to be taught in the next term.
The trimmed ATP goes hand in hand with lesson plans which has hours. One cannot add other topics against the lesson plans, if so, the learners would not cope and there was no way that one can allocate a topic on top of a topic because of the allocation of hours in a topic.
In the Applicant’s file, Mabokela found that the Applicant did not update it although she was informed about that. The file did not have a trimmed ATP and the learner books did not have a date showing when the Applicant taught and the dates were not corresponding.
The Applicant did not want to listen to Mabokela and the Principal and Mabokela asked the mathematics facilitator to intervene. The Applicant wanted to do her own thing. Mabokela was supposed to receive the catch-up plan from the Applicant after she accepted to use the trimmed ATP but did not do so.
Masingi advised the FDR not to use Caps ATP but to use the trimmed ATP so that learners would not be overwhelmed. The school was not ready to use Caps ATP and it was decided that they school would use the trimmed ATP. The Applicant was given the trimmed ATP.
The parents of the learners wrote emails about the methodology of her teaching and sometimes she did not go to the class.
The first term of the mathematics test was postponed because they had a directive from the acting Principal and the IDSO that tests could be postponed should parents feel that the learners were not ready to write.

ANALYSIS OF EVIDENCE AND ARGUMENTS

The Respondent charged the Applicant with the following charge; “It is alleged that during 2022 while on duty at FDR you unjustifiably prejudiced the administration, discipline, or efficiency of the school in that you failed to teach grade 4 mathematics”.
The Applicant during clarification sessions complained that the charge lacked details. This was because that there was a period in which the Applicant was absent due to incapacity ill-health. Parties thereafter agreed that it was a common cause that the Respondent approved the sick leave of the Applicant on the days in question. This meant that the Respondent agreed that there was no way that the Applicant would be available and be present in class to teach on the days in question due to sick leave.
In my view the Respondent’s charge against the Applicant lacked clarity and made it difficult for the Applicant to respond to the allegations. Upon a plain reading of the charge, it could be interpreted to mean that the Applicant was at school and did not teach the trimmed method applied to teach.
The other issue was that none of the parties presented the findings of the disciplinary chairperson in order to determine the reasons why the Applicant was found guilty on the allegations. This would have at least assisted me to determine on what basis the Applicant was found guilty at the disciplinary hearing.
EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA4/18) [2019] ZALAC 57; (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC) (15 August 2019) at para 15 the honourable Court stated as follows; “One of the key elements of fairness is that an employee must be made aware of the charges against him. It is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation. The charges must be specific enough for the employee to be able to answer them. The employer ordinarily cannot change the charge, or add new charges, after the commencement of the hearing where it would be prejudicial to do so. However, by the same token, courts and arbitrators must not adopt too formalistic or technical an approach. It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.”
I fully agree with the honourable Court in that the charge has to be precisely formulated and be specific enough for the employee to be able to answer them. As, I have already stated above, it was difficult for the Applicant to even understand the specifics on the charge but also to determine the Respondent’s case.
The Respondent’s case in the body of evidence largely relied on the Applicant’s utilisation of the Caps ATP instead of trimmed ATP to argue that the Applicant failed to teach. It is common cause that the Applicant taught the grade 4 learners utilising Caps ATP. Does it mean that the Applicant failed to teach at all or does it mean that the Applicant failed to teach trimmed ATP, hence the charge against the Applicant was vague and ambiguous.
Masingi testified that part of her monitoring work was to visit the school at least twice and if there were challenges, she could revisit the school. Importantly, Masingi submitted that FDR was scheduled for a visit in term one.
Both the Respondent’s witnesses attempted to portray the Applicant as a poor work performer in that the learner’s files were incomplete however the Applicant’s QMS which was not disputed by the Respondent pointed otherwise. The Applicant overall score was 131 with a percentage of 86% which in my view does not point indicate poor work performance. There was nothing in the QMS that points out that the Applicant was not performing her duties according to the Respondent’s expectations.
It was the Applicant’s case that she had a choice of using CAPS ATP or trimmed ATP whereas the Respondent’s case was that the Applicant was instructed to use the trimmed ATP. Further the Respondent amplified their case by stating that the learners could not cope with the extra topics which were taught by the Applicant and also the exams were postponed suggesting that the learners were not ready.
The choice of the Applicant does not mean that the Applicant failed to teach. The Respondent failed to prove that the Applicant physically failed to teach grade 4 learners. Instead, the Respondent case relied on the appropriate ATP that was used to teach.
I agree with the Applicant’s argument that Masingi’s evidence was contradicted by Mabokela about when the decision was made by the Respondent to use the trimmed ATP. Masingi testified that the decision was made during the presentation and after subsequent meetings that the school must use the trimmed ATP, whereas Mabokela testified that the decision to use the trimmed ATP was made by the school prior to the presentation.
In my view, there was a confusion on which ATP was to be used by the school hence the Applicant opted to use the CAPS ATP. This confusion was demonstrated by the testimony of Masingi in that some schools attended during Covid-19 and would continue to use the Caps ATP whereas those who were not attending had to use the trimmed ATP when they returned after Covid-19.
The WhatsApp group demonstrated that there was a confusion as the educators were seeking clarity as to which ATP should be used.
The presentation which the Respondent relied upon was not specific as to what ATP should be used hence according to Masingi in cross examination, there was a clarity telephone conversation between the Applicant and Masingi after the presentation. Masingi’s testimony in this regard also was not specific in that the SMT and educators had to check the deficit to choose the Caps or trimmed ATP. There was no evidence presented that the school chose the trimmed ATP except Mabokela’s testimony which cannot be relied upon on the basis of the contradiction between him and Masingi’s testimony.
Mabokela testified in cross examination that he instructed the Applicant to use the trimmed ATP without sustaining his version with evidence instead downplayed it with protocol. Mabokela further submitted that he spoke to Masingi and the Principal around January 2022 however this version was not given by Masingi in her evidence in chief and cross examination. Despite Mabokela’s version, the Applicant was not charged for refusing to obey a lawful instruction.
It is common cause that the Applicant was absent due to sick leave for the most part of February 2022, during term 1. This in my view may have had affected the readiness of the learners to write exams hence the need to postpone the exams.
My observation was that the Respondent case was all over the place because it was not clear what the Applicant was charged with in the first place. For this reason, I stated above that the charge against the Applicant was ambiguous and not clear for the Applicant to respond to the allegations. The Respondent intended to rely on the absence of the Applicant however the Respondent’s own evidence proved that the Applicant’s sick leave was authorised by the Respondent. It meant that the Applicant did not fail to teach because she was, in fact, absent with authority.
I find that the Applicant has discharged the onus of proving on a balance of probabilities that the Respondent committed an act of unfair labour practice related to suspension.

AWARD

I, therefore, issue the following award;
1. The Respondent committed an act of unfair labour practice against the Applicant.
2. The sanction of three (3) months suspension and the final written warning issued against the Applicant are set aside.
3. The Respondent is ordered to pay the Applicant a total amount of R41856, 90 (R13952, 30 per month x 3 months = R41856, 90) on or before 30 November 2024.
4. There is no order as to costs.

____________________

Chance Khazamula

ELRC Panelist

Date: 04 November 2024