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07 September 2026 – ELRC146-26/27LP

IN THE ELRC ARBITRATION

IN THE MATTER BETWEEN:

PHAKOAGO MOSHIANE IDAH APPLICANT

AND

DEPARTMENT OF EDUCATION, LIMPOPO RESPONDENT

                                                                                                                  Case No: ELRC 146-26/27LP

DATE OF THE AWARD: 07 SEPTEMBER 2026
ELRC ARBITRATOR: THOMAS MAHASHA
:
DETAILS OF THE HEARING AND REPRESENTATION

  1. Arbitration hearing took place in terms of the referral of the matter by the employee to the ELRC. The employee referred an unfair labour practice dispute relating to demotion. The matter was set down for arbitration on 26 August 2026, at Sekhukhune East District, Burgersfort. The employee was in attendance and represented by Sekgobela John of Mahlatse Sekgobela Attorneys. The employer was, represented by Portia Modipa, Assistant Director of the Department of Education attached to grievances and dispute resolution directorate. ISSUES TO BE DECIDED
  2. Whether by placing the applicant from intermediary phase to Grade R, the employer acted unfairly, and if so, to order the appropriate relief. BACKGROUND TO THE DISPUTE
  3. The employee is a CS1 educator attached to Marakabela Primary School, Bokgwasha Circuit, at Sekhukhune East District. The employee was engaged as a CS1 educator at Leagathoko Secondary School teaching maths and physical science, grade 12 since 2006.In 2008, she moved to Mmamolobela Secondary School. In 2011 she moved to Leolore Secondary School, and resigned in 2016. She was reengaged in August 2019 where she is still serving as an educator to date.
  4. During 2025, she taught intermediary phase at Mmarakalela Primary school. In January 2026, she was moved from teaching intermediary phase to grade R.
  5. Aggrieved by the decision to place her at Grade R, she declared a dispute with the ELRC, alleging that her placement amounts to a demotion. She sought to be re-allocated back to the intermediary phase, because she felt demoted without having been consulted by the employer prior to moving her from the intermediary phase. SURVEY OF EVIDENCE AND ARGUMENT
    EMPLOYEE’S TESTIMONY
  6. Phakoago Moshiane Idah’s testimony was as follows:
  7. The school Principal moved her to grade R without consultation with her. If consulted, she would not have agreed to be moved because such a movement constitutes a demotion, and would make it difficult for her to apply for future promotional posts. She was demoted, although still earning a similar salary.
  8. It was not for the first time that an educator would be moved from intermediary phase to grade R or vice versa. Moving Kgaphola TD from grade R to grade 6 amounts to a promotion.
  9. If consulted, she would have agreed to be placed at any grade, except grade R which is meant for ETD practitioners. She accepted to be moved because it was not for the first time that she was moved. She was never consulted before to be moved from one grade to the other.
  10. Her performance since 2019 to 2025 was bad, but she was doing her best to improve the results.
  11. She denied existence of a consultation meeting held by the School Management Team or educators.
  12. She could not attend a consultation meeting because she did not receive the notice. Although her name and signature appears on the attendance register, she did not remember attending a consultation meeting on 22 October 2025.
  13. She agreed that she was informed about the staff establishment on 23 October 2025, however, she could not remember if the issue of duty allocation was discussed or informed about reasons for allocating her at Grade R.
  14. She could not have been moved to grade R because of poor performance because generally, as the entire school had been performing badly.
  15. Her salary and rank were reduced because she was no longer working as an educator, but a practitioner.

EMPLOYER’S TESTIMONY
16) Lesese Collen testified that he knew the applicant since 2013 while still serving as a Deputy Principal of Mmarakabela Primary School.
17) It is a known departmental policy that educators are to be placed at specific grades and subjects on annual basis. On 3 October 2025, he received a preliminary post staff establishment. He presented the post establishment to the entire staff members as guided by the policy.
18) He received a final post staff establishment on 12 December 2025. The circuit office sent guidelines to be adhered to. He shared the guidelines with all educators via WhatsApp which the applicant was part of.
19) In terms of the guidelines, all educators are deemed to have relinquished their positions to allow for the smooth running of handling issues of matching educators to specific posts or subjects.
20) Prior to allocating educators, he called all the affected educators to engage with them. The applicant refused to be engaged, but however, attended the consultation meeting scheduled for 23 October 2025. It was during that meeting that he presented the new post stall establishment and allocated duties to all educators.
21) The applicant was not informed of the reasons for moving her to Grade R because she refused to be engaged. If she had attended, he would have engaged her about continuing poor performance and refusal to mark examination scripts.
22) Grade 6 is a very critical grade which determines the school’s performance level. Over the past years, the school became a serial underperformer because of grade 6 poor results, attracting the attention of the District Office. Attempts were made to improve the results by having extra intervention strategies. The applicant refused to take part. He supported the applicant by sending her to workshops hoping that she would improve. He even suggested to her to arrange for the involvement of wellness because he thought she could be needing such services. The applicant refused to go through the process.
23) It was clear that she would not improve the results. He decided to allocate the applicant to Grade R hoping that she would be having a lesser workload than teaching at Grade 6. The applicant was not the first educator to be moved from intermediary phase to Grade R. Allocation of educators is done in the best interest of the learners. The applicant was not a fit and proper person to teach intermediary phase.
24) Although he agreed that the applicant’s behaviour amounted to misconduct, he is of the view that he could not have done more than reporting to the circuit office, which he did.
25) He did not see a need to seek consent to move the applicant because there is no policy in place that obliges him to do so.
26) The applicant did not complain when moved from grade 7 to grade 4 because she knew that such a movement did not amount to a demotion. He did not have powers to promote or demote any educator. Such powers lie with the Head of Department.
27) Grade R is part of the main stream. A duty to allocate duties to the educators is the responsibility of the school Principal.

ANALYSIS OF ARGUMENTS AND FINDINGS

  1. Section 186(2) (a) of the LRA, provides: “unfair labour practice ‘means any 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”.
  2. The employee’s dispute relates to demotion. The nature of the respondent’s business necessitates allocation of duties from time to time with consequence that educators may have to execute their duties at places and in areas different from those they were initially employed to do.

Was the Applicant transferred?

  1. Chapter 3 section 6 (2) of the Employment of Educators provides: “Subject to the provisions of the Chapter, the Labour Relations Act or any other collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be made in accordance with such procedure and such requirements as the Minister may determine”.
  2. In terms of subsection (3) of the section referred to above, “…any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on recommendation of the governing body of the public school and, if there are educators in the provincial department of education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned”.
  3. Section 8 (1) of the Employment of Educators Act states: “Subject to the provisions of this chapter-
    a) The Director General or the Head of Department may transfer any educator in the service of the relevant department to any post or position in any other department of State with the prior approval of the person in that other department of State having the power to appoint or to transfer and with the consent of that educator; and
    b) The Director General may transfer any educator in the service of the Department of Education to any other post in the Department; and
    c) The Head of Department may transfer any educator in the service of the provincial department of education to any other post in the department.
  4. It is common cause that the Applicant was not transferred to any other department of the State or to any provincial Department within the Limpopo Province as envisaged by any of the above cited authorities. Neither does Collective Agreement 4 of 2016 find application because the Applicant was not allocated Grade R class following an R & R process.
  5. In the absence of the existence of any of the conditions stated in the above sections, a reasonable conclusion to be drawn is that the Applicant was not transferred.

Was the Applicant demoted?

  1. I agree with the Applicant’s representative that the mere fact that the educator’s rank and remuneration were not changed is not conclusive enough that there is no demotion. I agree too, that the status, prestige and responsibilities of the position are equally relevant in the determination of whether or not a transfer in a particular case constitutes a demotion.
  2. I further agree that in terms of common law a demotion as a disciplinary sanction without the employees’ consent is unlawful. The position is equally the same with regard to fairness of a demotion without consent as provided for by the Labour Relations Act.
  3. In Builders Warehouse v Benade at para 14 the appeal court stated: “The court aquo is correct that a dispute about an alleged unfair labour practice extends to “unfair conduct relating to demotion. The fact that the parties have agreed that the aggrieved employee accepts a demotion is not a complete defense because the ambit of this unfair labour practice is wider than this. The implementation of an agreement to accept a demotion, may constitute an unfair labour practice”.
  4. In this case, the Applicant had the onus to provide the basis for a claim for demotion.
  5. The Applicant’s case seemed to be that the respondent took a shortcut by demoting her instead of following the cumbersome process of instituting disciplinary proceedings against her.
  6. The Applicant’s version that she was demoted on the basis of the alleged misconduct was not supported by evidence. In my view, the Respondent’s reference to the Applicant’s refusal to mark scripts and partaking to measures designed to improve results were made with reference to what the employer did in attempting to support the Applicant who on observation at that time, seemed to be requiring wellness support services.
  7. It was evident that moving the Applicant from intermediary phase to Grade R was necessitated by a string of continued failure by the Applicant to improve academic results of the learners. It was in fact common cause that the Applicant’s results in grade 6 were poor since 2019. It was further not disputed that parents were up in arms against the Applicant because of the poor state of the academic results. I agree with the version of the school Principal that something had to give in to improve the image of the school.
  8. It was in fact not disputed that powers to allocate duties to educators at the school level is the prerogative of the school principal who mentioned in his testimony; that he made attempts to consult with all affected educators before taking a decision to move them from one grade to the other. The applicant refused to attend the meeting.
  9. The Applicant was given a second opportunity to be consulted during a meeting which was held on 23 October 2025. Although her name and signature appeared on the attendance register, she disputed that she was in attendance. The applicant had in my view, failed to distance herself from the consultation meeting which was held on that day.
  10. The question is why would she want to remove herself from the scene of a meeting. A reasonable conclusion to be drawn is that she did so because she wanted to strengthen her claim for not being consulted. She did not dispute that the signature was hers, but claimed that it could have been pasted. The Applicant’s contention with regard to the signature on the attendance register is contrary to the caveat subscriptor rule, which states that a person who signs a contractual document is taken to have assented to its terms. Although in casu, we are not dealing with the contract, the same principle should apply where a document was signed.
  11. The Applicant was present at the meeting and was consulted.
  12. The Applicant was not transferred but allocated a Grade R class. Personnel Administrative Measures (PAM) clarifies what the duties of a CS1 educator are. Duties involve amongst others, to engage in class teaching, including the academic, administrative, educational and disciplinary aspects and to organize extra and co-curricular activities so as to ensure that the education of leaners is promoted in a proper manner. Duties of ETD Practitioners involve amongst others, planning learning materials, teaching groups or individuals in simple or complex situations to help them grow and gain new skills and to test and grade learner work, check learning results and ensure fair assessment practices.
  13. I agree with the Respondent that Grade R is part of the main stream in a primary school setup. Allocation of classes to educators is the prerogative of school Principals. Educators at a particular school can therefore, be allocated to teach any subject on the basis of their qualifications, training or experience.
  14. There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers, unless it is unlawful, unfair, and malicious or in breach of a contract of employment.
  15. The only Applicant’s basis for claiming a demotion was that she was not consulted and that even if consulted she would only agree to be allocated any class at intermediary phase or higher.
  16. It is an inherent right for every business to manage its own operations, enforce discipline and allocate tasks. Operational demands changes require managers to reallocate tasks or transfer staff to different duties.
  17. Because of the Applicant’s continued failure to meet the required performance standards, the worst available option for the employer would be for her to be retrenched due to operational requirements.
  18. The employer’s decision cannot be interfered with in the absence of a demonstrated act of malice or unfairness. The Applicant did not demonstrate that in allocating Grade R to her, the Respondent acted capriciously, or for unsubstantiated reasons, or based upon any wrong principle in a biased manner.
  19. She could not demonstrate how her status was downgraded by teaching a Grade R class, or put differently, how teaching at Grade 7 would amount to a promotion.
  20. In the contrary, the Respondent had shown that a decision to allocate a Grade R class to the Applicant was to mitigate the operational risk of the employer and was to the best interest of the leaners and the school in general.
  21. I therefore find that the Applicant had failed to prove on a balance of probabilities, that the Respondent had committed an unfair labour practice relating to demotion because allocating duties to her was neither a transfer nor demotion.

AWARD
56) The Respondent, Limpopo Department of Education did not commit unfair labour practice relating to demotion in allocating a Grade R class to the Applicant.
57) The Applicant’s dispute is hereby dismissed.


MAHASHA TM
ELRC COMMISSIONER