Panelist: Mothusi Maje
Case No.: ELRC295-24-25NC
Date of Award: 08 September 2024
In the ARBITRATION between:
SADTU (South African Democratic Teachers Union) obo Yvette Lourens
(Union / Applicant)
And
Northern Cape Department of Education
(Respondent)
Applicant’s representative: Thabiso Khoboko (Union Official)
Applicant’s address: Kimberley
8301
Telephone: 082 552-0742 / 079 991-6782
Email Yvette.lourens@gmail.com
Respondent’s representative: Absent
Respondent’s address: Department of Education: Northern Cape
Kimberley
8301
Telephone: (N/A)
Email: dmoreothata@ncpg.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This is an award of the arbitration that was held on the 28th of August 2024 on Microsoft team’s link. Appearing on behalf of the Applicant who was also present was Thabiso Khoboko, her SADTU Union official. The Respondent did not connect on Microsoft teams’ link, and it was not represented. The Respondent had requested a postponement which the Education Labour Relations Council (ELRC) had refused.
ISSUE TO BE DECIDED
2. The issue to be decided was whether the Applicant’s demotion was procedurally and substantively unfair. The Panellist is required to determine whether the Acting Head of Department (hereinafter known as the Acting HoD) as the First Responded acted procedurally and substantively when she demoted Ms Y Lourens from Sub Directorate: FET School Curriculum at Head Office to the Emis Unit at Francis Baard District Office.
BACKGROUND TO THE DISPUTE
3. This is a dispute between Yvette Lourens (hereinafter referred to as the Applicant) and the Northern Cape Department of Education (hereinafter referred to as the Respondent). The dispute is about the unfair transfer of Ms Y Lourens from Sub Directorate: FET School Curriculum at head office to the EMIS Unit at Francis Baard District office
4. The Applicant approached the Education Labour Relations Council (ELRC) alleging that her demotion was procedurally and substantively unfair and seeking demotion to be declared an alleged unfair labour practice to return to her previous occupied position before the demotion.
5. The dispute was not resolved at conciliation and arbitration hearing was scheduled on 28 August 2024, hence this award.
6. There was a bundle of documents that was submitted by the Applicant party. The Applicant’s bundle was marked bundle A and the respondent’s did not submit any bundle of documents.
7. The Applicant party also submitted written oral closing arguments on 06 September 2024.
8. Because the proceedings were manually and electronically recorded, the summary of the evidence will appear in the analysis that will follow herein under.
SURVEY OF EVIDENCE AND ARGUMENT: APPLICANT
Yvette Lourens testified as follows:
9. In order to support her case, the Applicant led the evidence that that she showed during arbitration that the demotion transfer to the district office was without prior or procedural consultation with the Applicant and/or the Director of the Applicant Mr Willemse.
10. Her evidence was that she was demoted after she had sent an email to Ms Sibiya, Chief Director on the 8 March 2024 requesting to be laterally transferred to a vacant, funded post in the Page 2 of 4 same unit in which she was working (FET Curriculum).
11. The Applicant has been working in the FET Curriculum for the past 16 years since 2008 and occupied a Deputy Chief Education specialist (DCES) Provincial Coordinator CAT and IT post, for which she was suitably qualified for. The Applicant had also been working and acting in the CES and ICT posts for more than 1 year, without receiving any acting allowance.
12. Subsequent to her request, on the 29 April 2024 after her second request and enquiry to Ms Sibiya, then only on the following day 30th of April 2024 she received a WhatsApp massage from Ms Sibiya that she had been transferred to the district office as a Senior Education Specialist.
13. On the same day 30th April 2024, she went to fetch the letter of transfer dated 25 April 2024 from the Chief Directors office. It indicated that she had been transferred to the district office as a Senior Education Specialist (SES) which is a demotion in post level, from post level 5 to post level 3.
14. The letter instructed the Applicant to report to the district office on the 2nd of May 2024. A letter dated 08 May 2024, written by Mr. Khoboko (SADTU National Negotiator) to the Acting HoD, was never responded to by the employer and the Applicant was rather threatened by the Acting HoD with being forcefully removed from her office by the security officers and by charging her for insubordination.
15. There was a further communication to the Respondent that there was no consultation and the demotional transfer was a surprise package. The Applicant was only given 2 days to pack up and go.
16. Upon her arrival at the district office there was no office space to accommodate her until to date. The Applicant was squatting in another official’s offices, not having a job description and tools of trade. The Applicant was not even inducted or told what she should or would be doing in the post she was downgraded / transferred to.
17. This has also been the case for more than 4 months after the transfer. To date the Applicant has not received a job description as well. The lack of consultation and communication clearly shows that this procedure was unilateral and an unfair labour practice.
18. The Acting Director sent her WhatsApp messages that she was doing a good job for the province and for the country. There was no misconduct about her request to be transferred and the HOD did not consult her to be demoted to a lower position. The HOD informed her that she had no choice but to either accept or to decline the demotion.
19. The HOD has a personal issue with her as she is currently going through a divorce process.
UNDER CROSS EXAMINATION.
20. There was no cross examination.
APPLICANT’S WITNESS EVIDENCE.
Ricky Willemse testified as follows:
21. His evidence was that he had been working with the Applicant for the past 10 years and she has been monitoring two subjects namely CAT and IT, she was assisting teachers with implementation of the CAPS curriculum as well as school based assessment, in particular Practical Assessment Tasks (PAT) to achieve higher marks and provincial pass percentage.
22. The Applicant assisted as acting Chief Education Specialist (CES) for one year as well as leading in tablet projects for schools, The witness further testified that the Applicant was removed suddenly earlier this year without him knowing and since then, the tablet projects has not been running smoothly as they don’t have anyone to manage it.
23. The Applicant is qualified in computer applications, and IT, which has made it extremely difficult for him to render support to CAT and IT without her expertise, including providing administrative support to the tablet project.
24. He further testified that he does not have any school reports and support and monitoring reports due to her transfer. Furthermore, her absence was further amplified due to the fact she has been assisting as the acting CES and with coordination of the tablet project.
25. The Applicant played a critical role with the presenting of evidence to the Auditor General, and her absence made the auditing process a nightmare. Mr Willemse further stated that when the Applicant asked to be moved to the ICT position, he saw it as natural evolution because she had been working on the project from the start as well as supporting CAT and IT.
26. The witness further emphasized the need to have the Applicant back since she possesses the skills and qualification needed in the unit to support CAT and IT and that he was very worried that the province might not move from the 9th position in the country, because of a lack of support in these subjects.
27. The witness further testified that they are now presently in the final stage of the trial examination and preparing for the national examination and that he would be glad if the Applicant’s transfer is reversed with immediate effect, because she needs to assist with the collation and verification of SBA and PAT marks, which must be submitted to DBE.
28. The Applicant’s Director was not consulted as well by the HoD or been made aware of such intentions of demotion; he was however made aware of the situation by the Applicant during her physical move to the district office.
29. There was no prior consultation with him, and he needed the Applicant in the unit and was not content about her transfer as it was causing a void in his unit.
30. Mrs. Lourens had been doing her DCES subject coordination for 16 years, acted as Chief Education Specialist (CES) in the unit for more than a year and was driving the Cyber Lab and tablet projects for the Province.
31. The problem that was caused by this demotion and transfer has left certain projects and duties unfulfilled and incomplete in the unit. The witness further testified that he needed the Applicant in his unit and would never have agreed to transfer her and he was however unaware of her transfer when it occurred. The Applicant has never ever requested to be demoted but rather requested a lateral transfer from DCES CAT and IT to the DCES ICT position, with no additional costs or remuneration as the post is vacant and funded.
32. The witness who is the immediate supervisor of the Applicant has requested for her immediate return to the post which she has been occupying as Deputy Chief Education Specialist in CAT and IT.
33. The Applicant has been suffering from reactive depression because of this matter and is physically and emotionally ill. It is evident that she is being victimized and bullied. The witness testified that the transfer and demotion of Ms Lourens was unjust, unprocedural and with clear intent to diminish her character and her existence at the Northern Cape Department of Education.
34. The ill-treatment of Ms Lourens has left her broken and sick, and the employer should at least have the decency to reinstate her and/and transfer her to the ICT position she initially requested to be transferred to.
UNDER CROSS EXAMINATION
35. There was no cross-examination.
ANALYSIS OF EVIDENCE AND ARGUMENT
36. Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (as amended) (LRA) refers to unfair labour practices that, inter alia, relate to demotion.
37. This is where the statutory prescribed dispute resolution processes under the LRA come in and must be followed. These dispute resolution processes are far more than simply an alternative remedy and are actually an obligatory and prescribed remedy. There is no choice, and dispute resolution must be done in that manner.
38. The new shorter Oxford dictionary, 1993 edition: 163, defines the word demote being to reduce to a lower rank or class. Demotion is the reduction of dignity, importance, responsibility, power or status of an employee even if the salary, benefits and rank are retained.
39. In Minister of Justice and Another v/s Bosch and Others (2006) 27 ILJ 166 (LC), the Court held that employee declared demoted only if they lose rank, status or ones benefits to which they are entitled to.
40. In SA Police v/s Salukazana and Others (2010) 31 ILJ 2465 (LC), the employee was notified by a letter headed “lateral transfer” that he had been permanently transferred to a new position. The effect of that transfer was that although he remained on level 13 and his salary and benefits were not changed, his status had been diminished.
41. Demotion can manifest itself in many ways. It can arise through a reduction of salary, a change in terms and conditions of employment and a transfer. If a movement leads to a reduction in status, it is a demotion.
42. One also needs to consider that as a matter of common law principle, a demotion cannot be implemented unilaterally and without consent. In Eagerton and Mangosuthu Technicon (2002) 23 ILJ 2111 (CCMA) which held that prior consent is required for a lawful demotion. It is thus impossible in law to unilaterally demote an employee and a consent is required.
43. Employers must always obtain the employee’s consent to a demotion, in writing, as it entails the changing of the employee’s terms and conditions of employment. This means that the demotion cannot be effected unilaterally by an employer without consulting with the employee.
44. The enquiry into whether or not a demotion has taken place, must commence with determining whether or not the employer has taken from the employee that which he or she is entitled to or enjoys as a matter of right.
45. I find that the Applicant has established on a balance of probabilities that the employer committed an alleged unfair labour practice in the form of a demotion.
46. I took note that the employee did not lose her monthly salary after demotion and benefits.
47. I find the employee’s movement led to a reduction of responsibility, power and status. I say this because the employee was no longer in her previous position and no longer supervising anyone. The Applicant was not doing duties related to her previous position occupied and reporting to a co-worker who is on a lower position than she was.
48. The employee was employed to perform work and duties of her previous position, and she was instructed to perform work of a mere minimal nature. Therefore, the employee was demoted.
AWARD
49. The Respondent, Department of Education Northern Cape is found to have committed an unfair labour practice with regard to the demotion of the Applicant, Yvette Lourens in terms of Section 186 (2) (a) of the LRA.
50. The demotion is found to be procedurally and substantively unfair.
51. The Respondent is directed to allow the Applicant, Yvette Lourens to return to her position previously occupied on or before 23 September 2024 on the same terms and conditions of employment that applied before the unfair demotion.
ELRC panelist: Mothusi Maje
08 September 2024