IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT (VIRTUALLY)

Case No ELRC45-22/23EC

In the matter between

NAPTOSA obo THOBEKA MPATENI Applicant

and

DEPARTMENT OF EDUCATION: EASTERN CAPE Respondent

ARBITRATOR: Monde Boyce

HEARD: 29 June 2022

CLOSING ARGUMENTS: 05 July 2022

DATE OF AWARD: 12 July 2022

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC set this matter down for arbitration on 29 June 2022 and arbitration was scheduled to proceed virtually.

[2] Both parties submitted bundles of documents. The proceedings were digitally recorded, and typed notes taken.

[3] Parties agreed to make written closing arguments and it was agreed that parties would submit their written closing arguments by no later than 05 July 2022. Only the employee had filed the closing arguments on the agreed date.

THE ISSUE TO BE DECIDED:

[4] I am required to decide whether the employer properly applied the Collective Agreement 4 of 2016 when transferring the employee from BB Mdledle Senior Primary School to Mazibuko Senior Secondary School, and I am called upon to make the appropriate award.

BACKGROUND TO THE DISPUTE:

[5] The employee is currently employed as the Deputy Principal at Mazibuko Senior Secondary School. She was transferred from BB Mdledle Senior Primary School in February 2022 after she had been declared as an additional educator. Dissatisfied with the decision taken by the employer, the employee referred a dispute to the ELRC in terms of which she is alleging that the employer did not apply the provisions of the Collective Agreement 4 of 2016. The dispute could not be resolved at conciliation, and the employee referred her dispute for arbitration. She seeks to have the employer correctly apply the above-mentioned Collective Agreement, and to reserve its decision to transfer her until the procedure set out in the Collective Agreement has been fully applied as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

The Employee’s Evidence

[6] The employee, Miss Thobeka Mpateni, testified that she is currently employed as a Deputy Principal of BB Mdledle Senior Primary School from 13 March 2019 till 13 March 2022. She reported for duty at Mazibuko Senior Secondary School as instructed by the Chris Hani District on 14 March 2022. Page 15 of her bundle contains a letter that was written to her on 17 January 2022. She was called to come and fetch the letter and she was handed over the letter by the Cala Circuit Manager. She received the letter on 03 March 2022. There was a vacancy that was to occur at her school as her principal was serving her notice of retirement until 30 June 2022. The letter said an opportunity will be afforded to her to apply for a post. She never applied because there was no vacancy bulletin issued by the department. Page 16 contains a letter dated 04 March 2022. The signature on the letter did not contain the signature of the District Director but that of the HRM. This suggested to her that the letter was invalid and illegal as it was signed by someone who did not have the authority to do so.

[7] She was never given a list of vacancies and their profiles from which to choose. She did not fail to make a choice because she was never given a list from which to choose but was given the letters on page 15 and 16. She was also not afforded an opportunity to make written representations. She was never exposed to the recommendations of the Mazibuko Governing Body. The first day she reported at the school the Governing Body expressed surprise because they were not expecting her. She possess a Primary Teachers Diploma and as such, she was not supposed to teach. She was present at a meeting held on 1 February 2022. The minutes of the meeting were never read to her and she was seeing them for the first time on the date of arbitration. The minutes were never confirmed or adopted as there was no other meeting held after this meeting. Together with other identified teachers, she had raised an objection about how the process was handled. The response of the principal advised was for them to be calm and he assured them that the decision was not final and that there was another meeting to be held with the Circuit Manager, the principal and the trade union. Page 10 of the bundle contains a paragraph B.6.4.2 which states the circuit or district manager shall identify the educator.

[8] She was declared additional by the department long before she was identified as additional educator by Mdledle Primary School.

[9] Mr Tobias Ntseke was called as the employee’s witness. He testified that he is employed as the principal of BB Mdledle Primary School and is due to retire at the end of June 2022. He convened the meeting on 01 February 2022. He was the principal of the above school in 2020 and he called the same meeting in November for 2021 Post Provisioning and Norms (PPN). He received the final PPN for 2022 in January 2022 after the schools were opened. He called the meeting because he was instructed by Miss Mpotulo and if he refused, there would be consequences for him. He had initially objected but ended up convening it. He had never furnished the department with the information contained on page 15 and 16. The signatures at the bottom of pages 15 and 16 did not belong to the Chris Hani East District Director. The signatures on pages 15 and 16 are totally different and suggest to him that the letter is not legitimate or valid because it was signed by an official who had no authority to do so. He did not have a meeting with the Circuit Manager which would have been for purposes of identification.

[10] As the principal of the releasing school, he was never exposed to the recommendations of the receiving school. He was never given a list of the schools with their profiles for the identified educators and did not have any meeting with the Circuit Manager before the

The Employer’s Evidence

[11] The employer did not call any witnesses.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[12] Courts have now settled the law on onus. Once the party that bears the onus proves its case to a point that it requires rebuttal, the other party does bear the evidentiary burden to prove that the claims by the other party are either misplaced or unfounded. I hasten to mention that the employer did not lead evidence. As such, the version by the employee stands ungainsaid. Accordingly, I do not deem it necessary to extensively deal with the evidence led by the employee save to only do so to the extent of clarifying how the decision I reach is arrived at.

[15] The Collective Agreement 4 of 2016, and in particular Clauses B.6.4, B.6.5 and B.6.6 set out a clear procedure that needs to be followed for the identification of serving educators and what needs to happen where an educator is declared additional to the staff establishment and has to be transferred to a different school. In the employee’s case, this procedure was not followed if one has regard to the evidence led by the employee. In the first place, the meeting that was convened and purporting to discuss the identification of additional educators, according to the employee and Mr Ntseke, who was the principal of BB Mdledle SPS, was not convened at his (Ntseke) behest. He appeared to have serious reservations about the meeting and was emphatic in his assertion that he only called the meeting because he was instructed to but pointed to serious flaws in the procedure followed in identification of the employee as additional educator.

[16] Amongst the anomalies he pointed out was not being privy to recommendations of the school governing body of the receiving school as the releasing principal. This and other anomalies pointed to serious procedural flaws in the identification, and subsequently, transfer of Miss Mpateni to Mazibuko Senior Secondary School, which is a school she was not qualified to teach at because of her qualification, and such qualification being a Primary Teachers Diploma (General Education and Training Band), while Mazibuko is a senior secondary school (Further Education and Training Band). Another anomaly is that of the department having failed to afford the employee an opportunity to make representations in terms of Clause B.6.5.7 which provides as follows:

“In the event none of the educator’s choices in terms of paragraph B.6.5.3 can be realized the employer must first give the educator an opportunity to make written representations e.g. personal circumstances about the intended transfer to that specific school within five (05) working days before a final decision is made.”

[17] There is further provision in terms of the Collective Agreement which provides as follows:

“The opportunity to make representations must be given to the educator before a school governing body recommends the transfer of such educator to their school.

[18] The provisions of the above Clause (B.6.5.8) are peremptory. In other words, the employer must afford an employee to make representations, failing which the employer would have acted in breach of the provisions of the collective agreement. The employee was never afforded an opportunity to make representations before the said transfer. As such, the employer failed to follow the procedure set out in the Collective Agreement.

[19] The Collective Agreement makes provisions for what an arbitrator should do instances where the employer is found not have applied the provisions of the Collective Agreement and does empower an arbitrator appointed by the ELRC to set aside the decision by the employer to transfer an educator to a specific school and refer the decision back to the employer for a fresh decision. Accordingly, I make the following award:

AWARD

[20] The employer, the Department of Education: Eastern Cape, is ordered reverse its decision to transfer the employee, Thobeka Mpateni to Mazibuko Senior Secondary School and must start the process of identifying and identifying the employee afresh.

[21] The employer is further ordered to transfer the employee, Miss Mpateni, back to BB Mdledle Senior Primary School in the same position she held until such time as the process has been conducted and finalized in keeping with the provisions of Collective Agreement 4 of 2016.

Monde Boyce
Panelist: ELRC