IN THE MATTER BETWEEN: ELRC425-24/25LP

SADTU obo Vele Tsumbedzo Maria APPLICANT

And

Education Department of Limpopo RESPONDENT

AWARD
8.1. The respondent, Education Department of Limpopo, is ordered to compensate the applicant, Vele Tsumbedzo Maria, with an amount of R7 959.36 (Seven Thousand Nine Hundred and Fifty-Nine Rands and Thirty-Six Cents) which is equivalent to six months acting allowance which the applicant could have received from 01 May 2024 until 31 October 2024 (R1326.56 X 6=R7 959.36).
8.2. The amount mentioned above in 8.1. must be paid to the applicant on or before 22 January 2025. …………………………………………………..
ELRC COMMISSSIONER: NICHOLUS SONO
DATE: 13 November 2024

DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice, referred to in terms of section 186(2) of the Labour Relations Act 66 of 1995, as amended was held and finalized at The Department of Education-Limpopo, Polokwane on 31 October 2024.
1.2. Both parties attended the proceedings. The respondent was represented by Portia Modipa, while the applicant was represented by Jonas Baloyi, official of SADTU.
1.3. The hearing was held in English and Tshivenda and was digitally recorded.

ISSUES TO BE DECIDED
2.1. Whether or not the decision of the respondent not to appoint the applicant to act in the position of school principal at Robert Mbulungeni Secondary School was substantively fair. If not, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.

BACKGROUND TO THE ISSUES
3.1. The applicant is employed by the respondent as an educator at Robert Mbulungeni Secondary School. She viewed her non-appointment to the acting position to be substantively unfair and prayed for compensation.
3.2. The following issues are common cause:
a) The acting position was available from 01 May 2024 until 31 October 2024.
b) The principal has since been appointed with effect from 01 November 2024.
c) The applicant is the most senior educator at Robert Mbulungeni Secondary School.
d) The acting allowance for the principal position was R1326.56 per month.
3.3. Prior to the commencement of the proceedings, respondent submitted a bundle of documents marked “R”, while the applicant submitted a bundle of documents marked “A”.
3.4. The applicant closed her case after leading her own evidence, while the respondent closed its case after leading the evidence of two witnesses.
3.5. Both parties submitted oral closing arguments immediately after closing their respective cases.

SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was taken into account in order to arrive at a decision in the matter.

THE APPLICANT’S CASE
5.1. The applicant, Vele Tsumbedzo Maria, testified that when the acting position became available, she was the most senior educator at the school. The circular issued by the respondent dated 06 December 2005, provides that should the most senior educator at the school exists the system or becomes unavailable, the next senior educator from the same school should automatically assume the acting role. On 30 January 2024, she made herself available to act in the position after being approached by the circuit manager. The letter of acceptance was also sent to the school principal on 30 January 2024. The respondent went ahead and appointed an educator who is junior to her.
5.3. Under cross-examination, the applicant testified that the circuit manager advised her to submit the acceptance letter to the school principal. After submitting the acceptance letter, she never received any communication from the circuit manager. On 25 February 2024, the circuit manager visited the school and informed them that educator number 5 has been appointed to act in the position of school principal. Reasons for her non-appointment were also given but she disputes them. The SGB allege that she is implicated in financial irregularities and that she refused to be part of the SMT and the nutrition programme. The allegations levelled against her by the SGB are not true. Her relationship with the school principal was not good. As the treasury of the SGB, she was assisting the then principal with issues of finance. Because of the challenges that she was experiencing at the school, she decided to step aside from volunteering at some of the school activities. She also raised her challenges with the circuit manager. It is incorrect that she was not assisting the then school principal. She never involved her husband in issues related to the school.

THE RESPONDENT’S CASE
6.1. The respondent’s first witness was Rachel Ramphabana. She testified that she is currently serving as the secretary of Robert Mbulungeni Secondary School SGB. After some deliberations, the SGB did not recommend the applicant to act in the position of the school principal. The SGB considered that the applicant refused to be part of the SMT and nutrition programme. The applicant was also not assisting the then school principal with anything and she was also not willing to assist during after school studies. The applicant misused the school funds during a school trip. The applicant was requested to account for the money given to her while preparing the school trip, but to date she never submitted any documents as proof that the money was not misused. After the investigations conducted by the SGB, it was discovered that the applicant lied that the school trip cost was R10 000.00. The school only paid R3000.00 for the trip. Currently the issue of funds mismanagement has been escalated to the circuit office because the applicant is refusing to pay back the money. She was present when the applicant refused to be part of the nutrition. The applicant’s husband once confronted the chairperson of SGB after the applicant got home late from attending the SGB meeting.
6.2. Under cross-examination, Rachel Ramphabana, testified that the SGB has decided to lay charges against the applicant because she is refusing to pay back the money. The applicant’s performance at the school is very good. The SGB decided not to recommend the applicant because of the allegations. The applicant was given an opportunity by the SGB to respond to the allegations, but nothing was resolved. The SGB has considered the experience of the applicant and other educators. An educator who was senior to the applicant declined the offer to act. As the second most senior educator, the applicant was considered but not recommended by the SGB because of the allegations.
6.3. The respondent’s second witness was Denga Nozuko. She testified that she was the chairperson of the grievance that was lodged by the applicant after she was not appointed to act. The applicant and the SGB were both given an opportunity to state their cases. The SGB submitted why the applicant was not recommended. During the grievance hearing, the applicant never disputed the allegations of funds mismanagement and that she had refused to be part of the SMT and nutrition programme. When she visited the school during the investigation, she was assisted by the educator who was appointed to act. The senior educator refused to assist her.
6.4. Under cross-examination, Denga Nozuko, testified that the poor performance at the school was not directed at specific individuals but to the collective especially the senior educators. During the grievance hearing, she considered the SGB submission and what she had observed when she visited the school during the investigation. Before the appointment, the district director must consider the SGB recommendation. The SGB recommendation does not bind the district director. The district director has a discretion to divert from the SGB recommendation.

ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1. In this matter, the onus was on the applicant to prove on balance of probabilities that her suspension without pay was substantively unfair.
7.2. Paragraph 3 of the Circular: Regulations of Acting Appointments in Promotion Post 06/12/2005 provides as follows:
3.1. If for some reason, the most senior educator (principal) at the school exists the system or becomes unavailable, the most senior educator (deputy principal) from the same school should automatically assume the acting role. These criteria (of seniority and the same school) should accordingly apply to other levels.
3.2. In case there is more than one educator on the same level of seniority, the following guidelines should be used to determine who should act:
a) Experience (at that level) and, should there be a tie
b) Internal interview as per Res: 1/2000 (Shortlisting and interviewing),
7.3. The Circular issued by the respondent does give discretion to anyone, including the district director or school SGB, to decide who should act. The Circular also does not state the circumstances under which an educator will be prevented from acting despite being the most senior educator. The Circular state clearly that the most senior educator should automatically assume the acting role if there is only one educator who is senior.
7.4. In this matter, the most senior educator, HOD, declined the offer and the applicant was second in line in terms of seniority. The applicant had accepted the offer in writing, and it was submitted to the school principal. Denying the applicant the opportunity to act because of the allegations raised by the SGB was totally inconsistent with the Circular issued by the respondent on 06/12/2005.
7.5. In the circumstances, I conclude that the applicant has proved on balance of probabilities that the decision by the respondent not to appoint her to the acting position of the school principal was substantively unfair.
7.6. The applicant prayed that she be paid for the entire period that she was supposed to have acted. I find the relief sought by the applicant to be appropriate under the circumstances.

8. AWARD
   8.1. The respondent, Education Department of Limpopo, is ordered to compensate the applicant, Vele Tsumbedzo Maria, with an amount of R7 959.36 (Seven Thousand Nine Hundred and Fifty-Nine Rands and Thirty-Six Cents) which is equivalent to six months acting allowance which the applicant could have received from 01 May 2024 until 31 October 2024 (R1326.56 X 6=R7 959.36).
   8.2. The amount mentioned above in 8.1. must be paid to the applicant on or before 22 January 2025.

ELRC COMMISSSIONER: NICHOLUS SONO
DATE: 13 November 2024