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11 November 2024 – ELRC173-24/25KZN

IN THE ELRC ARBITRATION
BETWEEN:

GUGULETHU B. MYEZA “the Applicant”
and
THE DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”

ARBITRATION AWARD

Case Number: ELRC 173-24/25KZN

Last date of arbitration: 21 OCTOBER 2024
Date of submission of closing arguments: 28 OCTOBER 2024
Date of Award : 08 November 2024

MS. C.S. VENKETIAH
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

  1. The arbitration commenced on 21 October 2024.
  2. The Applicant was represented by Mr. Sifiso Mtshali, a candidate attorney of K.M. Chetty attorneys and the Respondent was absent.
  3. On instruction from the Applicant Mr Mtshali advised that he would proceed with the arbitration in the absence of the Respondent. The Applicant was advised as to the repercussions that could arise form an award issued in the absence of the Respondent.
  4. At the close of testimony, Mr. Mtshali requested to submit the closing argument in writing, and was instructed to do so before close of business on 28 October 2024. Mr. Mtshali accordingly complied with this request.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

  1. The arbitration is in respect of a referral by the Applicant of an alleged unfair practice and was originally referred in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA.)
  2. On 5 August 2024 the matter sat for arbitration and Mr. Sibonyani appeared for the Respondent. He raised a point in limine that the Council lacked jurisdiction to hear this dispute as the Applicant continually stated that her transfer amounted to unfair discrimination due to her ill health.
  3. I instructed the parties to furnish me with written arguments and on 14 August 2024, I issued a ruling that the Applicant party was incorrectly framing the dispute, as it was clear that the heart of the dispute lay in whether or not the transfer of the Applicant had been effected for fair reasons in terms of Collective Agreement 4 of 2016.
  4. My ruling as it appears of paragraph 33 and 34 of the said Ruling directed the parties as follows:

“33. The true nature of the dispute has been determined to be whether or not the Respondent has applied a fair transfer process in terms of Collective Agreement no 4 of 2016.

  1. The Council must set the matter down for hearing for the parties to argue their respective cases in respect of the above determination.”
  2. Only the Applicant party appeared at this scheduled date, which was scheduled as an arbitration. I am thus required to decide whether the Respondent applied a fair process in determining that the Applicant must be transferred to another school, in terms of Collective Agreement no 4 of 2016 and whether the reasons for doing so were substantively fair, and if not, whether the Applicant is entitled to the relief that she seeks.

BACKGROUND

  1. The Applicant is employed as a departmental head (HOD) at Mahloni Primary School in Vryheid.
  2. The Applicant was earmarked for transfer on the basis that she was surplus, and transferred to Bilanyoni Primary as a measure to distribute educators to schools where there is a shortage of Educators. The transfer was to take effect in March 2024 but the Applicant has not vacated her post at Mahloni. She avers that the decision of the Respondent to transfer her was an unfair labour practice.

The Applicant’s Case

  1. Mr Mtshali submitted by way of an opening statement that the Respondent acted unfairly in it’s decision to transfer the Applicant to Bilanyoni Primary School. Respondent failed to adhere to proper procedures and substantive requirements of Collective Agreement 4 / 2016 which prescribes the rules for the fair transfer of educators. The Respondent justified the transfer by submitting that the Applicant is a surplus staff member. He submitted that the transfer was executed without proper consideration of the procedural requirements of transfer and without regard to her personal and medical circumstances. Thus, the Applicant submits that the transfer is procedurally unfair and substantively unjust. The Applicant seeks to be retained in her current school or alternatively transferred to a school in close proximity to her current workplace, so that she can deal with her medical issues and fulfil the expectations of the Department of Education.
  2. The Applicant, Ms. Gugulethu Beatrice Myeza, testified in support of her case and called no further witnesses. She was of the opinion that the Respondent had not attended the arbitration today due to the fact that on the last occasion she had “showed the documents” that proves that she was not earmarked for transfer.
  3. She testified that her transfer affected the current school in terms of the curriculum obligation to learners. She stated that the principal had used false information when he declared her surplus. On page 10 of her Bundle she avers that the document entitled “Final Educator Post Establishment 2024” (which she refers to as “PPN certificate”) signed by Mr Ngcobo the HOD of the province, indicates the requirement of 1 principal, 2 department heads and 6 educator posts at level 1. She testified that she is a department head and thus included in this count.
  4. The Applicant testified further that the principal called the staff to a meeting earlier in the year and informed them that the school has had a reduction in learner numbers. The Applicant questioned this statement as the number of learners had increased since 2021. The said principal also told educators that the “PPN” indicated that one HOD “must go” and that it was her. The Applicant was surprised and questioned him as to how this was possible since she had more years of service than the other HOD. He advised her that she had been declared surplus and that she had been appointed in the month of February while the other HOD had been appointed in the month of January. The Applicant questioned why he would refer to the month of appointment rather than the year. She stated that during the meeting, the principal never showed the PPN certificate to the educators which he was obliged to do. She had not realized at the time that he had been giving false information. She re-iterated that she had 24 years of experience as an educator.
  5. She referred to page 15 at paragraph B6.4.2.4 and stated that the principal did not follow the Collective Agreement which states that he should have utilised LIFO (last in first out), had he believed that an employee should be transferred. She submitted further that the other Department Head who was retained had fewer years of service than she did.
  6. The Applicant testified further that if she had to leave the school, there will be a shortage of educators because she teaches grade 1 and she is tasked to manage the foundation phase. In her absence, there would not be a head of the foundation phase. She explained that this is a very important phase because the teachers do not specialize in subjects. The whole class is taught every subject.
  7. She also averred that if there is a finding that the Respondent had followed a fair process, she would prefer a transfer to a school closer to Mahloni to mitigate her personal and medical issues. She also avers that in terms of the Collective Agreement she should have been offered a choice of three possible schools to transfer to and she had not been afforded this courtesy to submit a placement preference list as outlined in the said agreement. She went to the circuit office where she was told that she could only be transferred to one particular school, which is Bilanyoni. Ms Magwaza, the circuit manager, advised her to write a letter stating why she could not transfer to Bilanyoni and to attach all medical certificates. Two weeks later she received a letter instructing her to go to Bilanyoni. On 13 June 2024, she spoke to the Circuit Manager at Paupietersburg, Mr Zulu (who is a line manager to Magwaza) and explained to him that she was seeing a physiotherapist 3 times a week. He advised that Ms. Magwaza had recommended her transfer and that and he was not aware that she had been injured in a car accident as Mrs Magwa had not presented this information to him. Thereafter, in July, her salary was frozen.
  8. The Applicant testified about the extent of her injuries and reasons why she required medical treatment. She had had an accident in 2022 and Magwaza was a witness thereto. Her spine had been injured. She was thereafter involved in another accident in 2023. She was advised by doctors that she should not travel long distances. The Applicant appealed to the department. Her doctor, Dr Masondo, also wrote a letter of motivation regarding her issues with travelling. She avers that her current school is close to her access to her specialist whilst Bilanyoni was much further away. Also, Bilanyoni is near Dumbe which is a small town with a small hospital which does not have a specialist doctor nor a physiotherapist. She avers that people who live at Dumbe travel to Vryheid for specialists or physiotherapists.
  9. She also testified that at the previous sitting, the Respondent representative, Mr. Sibanyoni had indicated that he did not believe that she was ill and also said that she wants to stay at Mahloni because the current principal is retiring in 13 months. She submits that this is untrue. She believes that the principal acted “fraudulently” and that the department followed suit. She believes that since the PPN clearly states that Mahloni staff complement is allocated at two HOD posts, she should not be transferred.
  10. I asked the Applicant a few questions for the purposes of clarity which were:

i. When you were instructed to go to Bilanyoni, on what date were you supposed to have reported there: the Applicant responded that she was to report to Bilanyoni in March 2024.

ii. How many years of service does the other HOD hold: The Applicant responded that he had 8 years of service. He came to the school as a substitute in 2012/3 when someone went on leave. He had a human resource degree when he came to substitute. Thereafter the deputy head was ill, and he substituted again. When the deputy head retired in 2015, he started teaching as a temporary teacher and he only “qualified” in that year. This, she submitted, clearly shows that LIFO was not followed as outlined in the Collective Agreement.

iii. Why was your salary frozen: She responded that her salary was frozen for 3 months between July to September and that even her GEPF (pension fund) and GEMS (medical aid) were not paid. This was surprising because even though she had not reported at BIlanyoni, she had reported to Mahloni every day and did her job as both teacher and HOD. She stated that the “past 3 months were terrible”. She couldn’t get a loan or see the doctor. She found it odd that her medical aid was terminated in June without explanation yet her salary was frozen in July. The medical aid is still not reinstated because GEMS only reactivates in January, yet she had been a member for 16 years. She has had to apply to a new medical aid society because she has to have surgery in November and is still owing doctors more than R11 000. Her insurance policies were cancelled and she had them for 24 years. Her salary was finally unfrozen in September.

  1. The states that she wants to be retained at Mahloni she is entitled to on the grounds that “Its in the PPN in black and white”. She is also seeking compensation to pay her doctor’s bills for the inconvenience she has suffered.

CLOSING ARGUMENT’

  1. Mr Mtshali submitted closing arguments in writing. As they form part of the record, a repeat thereof is unnecessary, and only the most salient argument is summarized herein:

23.1. He contended that the Respondent’s actions in transferring the Applicant were not only procedurally irregular but also neglectful of the substantive factors such as the Applicant’s personal and medical circumstances that should inform a fair and just decision regarding her placement.

23.2. He referred to relevant sections of the Collective Agreement No. 4 of 2016 which the Respondent did not comply with, to demonstrate substantive unfairness of the transfer which are inter alia, The failure of the Respondent to:
i) consider the views of Educators in terms of B.6.4.2.1
ii) properly assess the needs of the institution in terms of B.6.4.2.2
iii) provide a list of vacancies in terms of B.6.5.3
iv) choose an institution in the event that the employee does not in terms of B.6.5.4
v) consider the Applicants personal circumstances in terms of B.6.5.7
vi) consider retaining the Applicant at her current school in terms of B.6.6

21.3 Mtshali referred to the following case law in support of the Applicant’s case.
i) In Simelela & Others v Members of the Executive Council for Education, Province of the Eastern Cape & Another, (2001) 22 ILJ 1688 (LC) at 56 the Labour Court ruled that public sector employers must adhere to applicable legislation and ensure the procedural fairness of their actions when transferring employees.

ii) Ubogu v Head of Department of Health, Gauteng and Others, (2018) 39 ILJ 337 (CC) at 62 to 63 reaffirmed the requirement that public employers must follow statutory and regulatory frameworks governing employment decisions, ensuring procedural fairness at all stages.

2.1.4 Mtshali submitted that the Respondent’s actions, in failing to adhere to multiple provisions of the Collective Agreement and disregarding the Applicant’s personal and professional circumstances, amount to a breach of fair administrative action rendering the transfer invalid and both procedurally and substantively unfair. The Applicant respectfully submits that the decision to transfer her should be set aside, and she should either remain at her current school or be placed at a nearby institution that takes into account her personal circumstances and professional qualifications.

ANALYSIS OF ARGUMENT

  1. This analysis of the evidence is that of the Applicants’ evidence alone due to the absence of the Respondent. The crux of the issue of whether the transfer of the Applicant is unfair or not. This enquiry depends on whether there was a fair procedure followed in the transfer of the Applicant.
  2. The evidence from the Applicant was succinct and to the point. I could not fault her evidence, and she came across as open and honest. However, the version of the Applicant is untested by cross examination or disputed by the Respondent due to its absence. The said version therefore must stand as the correct version of the events that led to the dispute before me.
  3. Despite the Applicant’s representative unravelling the dispute on several levels, the test to be applied herein is whether the transfer of the Applicant by the Respondent was conducted in a manner that was both procedurally and substantively fair. This test must be applied having regard to the relevant collective agreement within the Department of Education that governs the issue of transfers.
  4. In this dispute, even without having any regard to the said collective agreement, or the personal circumstances of the Applicant, the starting point of the unfairness applied to the Applicant is the fact that no valid reasons were submitted to her regarding her transfer in light of the PPN document that she has produced.
  5. It had been her testimony that the principal of Mahloni Primary, where she is employed, called a meeting with educators in early 2024 and simply declared that the school had a reduction in learners, that the Applicant was therefore regarded as a surplus educator, and that she would have to be transferred. She testified that he had not revealed the PPN certificate to staff which he was obliged to do. He had no answer to her challenge that the learner numbers had in fact increased. He also could not give her a valid reason why she was earmarked to be transferred when she had been an educator at the school longer than her colleague, the other head of department who was being retained.
  6. The PPN Certificate appears on page 10 of the bundle and is titled “Final Educator Post Establishment 2024”. The document notes that it pertains to Mahloni Primary and is signed by the Head of Department of the Province. The document shows the post requirement to be 1 principal, 2 department heads and 6 educator posts at level 1. I therefore accept the Applicant’s testimony that the principal had lied about the shortage of learners and that only 1 HOD was required at the school. The reasons why he would lie are unclear and the Applicant did not surmise his motives. It is also somewhat unclear why the Department itself and especially Ms. Magwaza would then proceed with instructing the Applicant to report to Bilanyoni Primary. Be that as it may, in the face of the PPN certificate, it is as clear as day that Mahloni Primary is allocated two department heads and thus has not empowered the principal to decide that one HOD is a surplus educator and that surplus HOD has been earmarked by himself, which is the Applicant. These facts render the transfer of the Applicant as substantively unfair.
  7. If it was really the case that one HOD was rendered surplus, then the principal should have applied the prescripts of the collective agreement and this would have included by necessity that LIFO would have been applied. And this in effect leads to an enquiry as to whether the transfer of the Applicant was procedurally fair. In light of the Respondent’s failure to abide by the prescripts of LIFO, (in the event that the transfer was effected for valid reasons), this is in itself a procedural defect that renders the transfer unfair.
  8. The Collective Agreement 4 of 2016, “Transfer of Serving Educators in Terms of Operational Requirements” replaces the section relating to transfer of educators in terms of operational requirements by amending Paragraph B6 with the inclusion of Annexure A. Specific regard must be had to the following:

i. Paragraph B6.1.1 specifies that a change in learner enrollment is recognized as an operation requirement. This was the reason for the transfer of the Applicant as purported by the principal. The Applicant disputes this position and avers that the school had actually had an increase in enrollment. She averred further that the Principal could not answer her when she questioned him about learner intake.

ii. Paragraph B3 specifies that the principal must inform his/her staff about the new education post establishment and this information must be made accessible to all staff. In this case, the principal concealed the post establishment and effectively lied to staff about its requirements. (my emphasis)
iii. Paragraph B6 establishes the procedure that must be followed when declaring an educator to be “in addition” (surplus). The principal could absorb the educator into the school if an existing staff member’s departure is imminent (known date, eg retirement). Only after considering this the principal and the Circuit/District manager must identify surplus educators by taking the following into account:
a) B.6.4.2.1 the views expressed by the staff at the formal meeting with the principal
b) B.6.4.2.2 the needs of the institution
c) B.6.4.2.4 if there are two or more educators competing for the same post the principle of last in first out (LIFO) shall be applied. An educators service period for the application of LIFO shall include all continuous service rendered at any public service institution.
d) B.6.5.3-7 the employer must provide a list of vacancies from which the surplus educator would make a choice relevant to his/ her transfer profile. If the educator fails to make a choice the employer will make the choice on the educators behalf. The choice is submitted by the relevant school where the governing body will consider and recommend the request within 2 months. If none of the choices can be realized then the educator must be given the opportunity to make written representations eg personal circumstances why they cannot be transferred to the school, within 5 workings days before a final decision can be made.

  1. The very pertinent facts of this case is that Mrs Magwaza asked the Applicant to make written representations and attach medical certificates which request she complied with. The transfer was decided in any event and she appealed to Mr Zulu (circuit manager and line manager of Magwaza), in turn advised her that he has never been made aware of the facts of her personal circumstances, i.e. that she had a medical issue that restricted her travelling ability.
  2. The Applicant surmised that the Respondent failed to attend today after she had produced the PPN Certificate. It is also trite that after she had produced same at the previous sitting, the Respondent re-instated her salary.
  3. The transfer of an educator is primarily governed by legislation in the form of section 8 of the Employment of Educators Act, 76 of 1998 as amended. Section 8(1)(c) states that the Head of Department may transfer any educator in the service of the provincial department of education to any other post in that department.
    In terms of Section 8(2) Subject to subsections (4) and (5), no transfer to any post on the educator establishment of a public school or a further education and training institution shall be made unless the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, has been obtained.
    8(3) The salary and other conditions of service of an educator may not be adversely affected by a transfer under this section without the consent in writing of that educator, except in accordance with the provisions of Chapter 5. (my emphasis)
  4. In my ruling dated 14 August 2024, I have ruled that “The true nature of the dispute has been determined to be whether or not the Respondent has applied a fair transfer process in terms of Collective Agreement no 4 of 2016.” In this light I refer to the recent findings in Dawn Ltd and Others v Molefe and Others (JR2114/21) [2024] ZALCJHB 111 (4 March 2024) (unreported) where the Court stated: “ So, and in short, any characterization of the dispute by the first respondent in his referral documents in casu is simply a prima facie basis of placing the dispute before an arbitrator of the CCMA to arbitrate. The true nature of the reason for dismissal is determined on the basis of the facts placed before the first respondent. As clearly said in Commercial Workers Union of SA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 66: ‘… The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in.’.
  5. The Court in Dawn Ltd also made reference to the following pertinent findings in the below mentioned cases:
    i. In National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another (2003) 34 ILJ 305 (CC) at para 52. the Court held: ‘… It is the duty of a court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute a court must look at the substance of the dispute and not at the form in which it is presented. The label given to a dispute by a party is not necessarily conclusive. …’

ii. In September and Others v CMI Business Enterprise CC (2018) 39 ILJ 987 (CC) at para 43. it was said that: ‘In my view, the commissioner is not bound by a party’s categorisation of the nature of the dispute. Rule 15 clearly intended the commissioner to have the right and power to investigate and identify the true nature of the dispute.’ At paragraph 52 the Court noted ‘… The general rule is that the referral form and certificate of outcome constitute prima facie evidence of the nature of the dispute conciliated. However, if it is alleged that the nature of the dispute is in fact different from that reflected on such documents, the parties may adduce evidence as to the nature of the dispute.’

  1. Taking into account the totality of testimony, arguments and findings above. I find that the transfer of the Applicant did not meet the prescripts of Collective Agreement no 4 of 2016 and was thus unfair.
  2. There is no reason why the Applicant should not be entitled to the recourse that she seeks. The Respondent is therefore directed to reconsider the transfer of the Applicant and apply the process as prescribed in Collective Agreement no 4 of 2016.
  3. In the closing arguments Mr Mtshali did not ask for compensation but the Applicant within her testimony specifically requested this. She testified that the effect of her salary being frozen was that she was unable to pay for her life insurance policies which she had been paying continuously for 24 years. her medical had been terminated and she owes money to doctors. She has to seek a new medical aid as she is due for surgery in November. However, in terms of paragraph B6.9.2.2 of the said Collective Agreement 4 of 2016, an arbitrator determining a dispute relating to interpretation, application or enforcement in terms of this agreement does not have the jurisdiction to award compensation.

AWARD

  1. The transfer of the educator, the Applicant herein Ms. Gugulethu Beatrice Myeza, did not meet the prescripts of Collective Agreement no 4 of 2016 and was thus unfair.
  2. The Respondent is therefore directed to reconsider the transfer of the Applicant and apply the process as prescribed in Collective Agreement no 4 of 2016.

C. Venketiah
Arbitrator 08 November 2024
ELRC 173-24/25KZN

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