22 April 2021 – PSES 66-19/20 GP (temp)

Case Number: PSES 66-19/20 GP
Province: Gauteng
Applicant: MAPHALLA E
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice – Provision of Benefits
Award Date: 26 January 2021
Arbitrator: Chance Khazamula
Case No PSES 66-19/20 GP

In the matter between

MAPHALLA E Applicant

and

DEPARTMENT OF EDUCATION GP Respondent

ARBITRATION AWARD

The venue of Arbitration: Gauteng Sedibeng West/Virtual

Date: 12 February 2020, 29 September 2020, 30 November 2020 & 01 December 2020

Parties present: Arbitrator: Mr C Khazamula
Applicant: Ms Maphalla
Applicant’s Representative: Adv W VD Heerver
Employer’s Representative: Mr RB Boloang

DETAILS OF HEARING AND REPRESENTATION

1. The Applicant referred matter an unfair labour practice dispute in terms of s186 (2) (a) of the Labour Relations Act, 66 of 1995, relating to benefits and it was set down for arbitration before me on the following dates; 12 February 2020, 29, September 2020, 30 November 2020 and 01 December 2020.
2. Parties relied on a common bundle of documents as evidence and they were named Bundle A1 and A2. Parties further submitted closing arguments.
3. The proceedings were digitally recorded.

ISSUE(S) TO BE DECIDED

4. I have to determine whether the Respondent committed an act of unfair labour practice relating to benefits against the Applicant or not. The relief sought by the Applicant is a payment of an acting allowance for the period 30 April 2017 to 31 December 2018. For me to determine the above-mentioned issue I have to decide the following;

4.1. Whether the Applicant was instructed by the Respondent’s Institutional Development Support Officer Kunene (“Kunene”) to act as a Principal until the appointment of the 2nd Administrator (“Makhaye”) from 1 January 2018 or not.
4.2. Whether Kunene acted as a Principal at Prestigious Aureate High School (“Prestigious”) after the incapacity of the 1st Administrator (“Montsho”) until the appointment of Makhaye or not.
4.3. Whether the Applicant performed the duties of the Principal after the appointment of Makhaye or not.

BACKGROUND TO THE ISSUE

5. This dispute was set-down before me following a condonation ruling granted in favour of the Applicant on 16 December 2019.
6. The Applicant was employed by the Respondent in the capacity of a Deputy Principal at Prestigious. She alleged that the Respondent’s Institutional Development Support Office Ms Kunene (“the IDSO”) gave her instruction to act as a principal starting from 30 April 2017. She performed the duties of the Principal until the appointment of the 2nd Administrator on 1 January 2018 however the Respondent did not pay her the acting allowance for that period.

SURVEY OF EVIDENCE AND ARGUMENT

The Applicant’s Testimony and Evidence

7. The Applicant testified that during February 2017 Montsho was appointed after the Principal was deployed to the Respondent’s District Management offices (“the District”) because the school was not performing. He performed all the duties of the Principal which includes inter alia, managing the affairs of the school and representing the Respondent in the School Governing Body (“the SGB”) meetings.
8. In April 2017, Montsho was hospitalised and did not return to Prestigious. There was no substitute in his 20 days of absence. In July 2017, the District wanted to appoint another Administrator, but the SGB refused and again refused another Administrator in October 2017. The Applicant submitted that the SGB must to be consulted when an Administrator is to be appointed. Throughout that year she acted as a Principal of Prestigious.
9. The Applicant submitted she was instructed by Kunene to act as a Principal during Montsho’s incapacity and when Monthso did not return to Prestigious she just continued acting. During her acting period, she performed all the duties of the Principal.
10. In January 2018, nothing changed and she continued to perform the Principal’s duties. Makhaye came in February 2018 and told her that his rank was an IDSO and the Applicant should continue with what she was doing the previous year. The Applicant introduced Makhaye to the SGB and Makhaye told the SGB that he came to school as a mentor and the Applicant will continue as an acting Principal.
11. The Applicant submitted that in 2017 the Prestigious Heads of Departments (“HOD”s) acted on a rotational basis on a role of a Deputy Principal while she was acting as the Principal and Makhaye suggested that Mr Khantsi who was one of the HOD’s act as Deputy Principal to bring stability. Makhaye further suggested that grade heads should be appointed at school and made several suggestions as a support system at Prestigious. Makhaye was not always present at Prestigious because he had to visit other schools as an IDSO. He was never full time at school.
12. In cross-examination, the Applicant testified that Montsho was appointed as the first Administrator of Prestigious because the Principal was removed in February 2017. She submitted that during her role as Deputy Principal, Makhaye was not fulltime at Prestigious but he was assisting. She did not know what role Makhaye played however as an IDSO she was giving guidance while she was performing Principal duties.
13. The Applicant submitted that the IDSO of Prestigious was Kunene and further stated that there were two IDSOs for Prestigious and that the Respondent can provide a response as to why there were two IDSOs. She denied that the Makhaye was appointed as an Administrator. She submitted that the Respondent would consult with the SGB when the Principal or an Administrator was appointed. Kunene appointed her to act as a Principal until Montsho returned from sick leave however he did not return. She was not given an official letter as an acting Principal by the Respondent.

14. The Applicant’s second witness Alfred Moloisane (“Moloisane”) testified that during 2017 and 2018, he was the SGB Chairperson. He has not seen an appointment letter of Makhaye. He submitted that normally the Respondent would consult with the SGB and in the case of Makhaye, there was never a consultation. Makhaye was introduced by the SGB in the meeting and Makhaye informed them that he was the IDSO to support the Applicant as an acting Principal. Makhaye did not take up any responsibility of managing the school as a Principal and it was the Applicant who acted as a Principal throughout that period. The SGB engaged the Respondent’s District Director to confirm the acting Principal capacity of the Applicant and he responded that the matter was between the employer and the employee. They did not receive a confirmation of her appointment.

15. In cross-examination, Moloisane submitted that when there was a vacancy, the SGB was responsible to shortlist and recommend the candidates to the Respondent who will thereafter appoint. Makhaya was an IDSO support to the Applicant because the school had challenges with the delivery of a curriculum and Kunene was the IDSO of the school. Moloisane submitted that he did not know why the Respondent has appointed two IDSO for Prestigious and it has never happened that there were two IDSO at the same time. The SGB never recommended Makhaye to be appointed as an administrator. The appointment of an Administrator was a prerogative of the Respondent however it cannot be done without consultation.

16. The Applicant’s third witness Tsholo Johannes Mokoena (“Mokoena”) testified that he was performing maintenance and driving duties at Prestigious. The Applicant issued instructions to him as a Principal and she also sat in the SGB meetings in the capacity of a Principal. Makhaye did not sit in the SGB meetings. The Applicant took care of Prestigious’ assets. The Applicant and Khantsi were going to the accounting session about the bad school results and the Applicant drove her car to those sessions. He never drove the Applicant to the sessions because there were two drivers at Prestigious.
17. In cross-examination, Mokoena testified that he was not a part of management or leadership of Prestigious. The public service (“PS”) staff reports and takes instruction from the Principal. Mokoena submitted that the Deputy Principal issued instructions in the absence of the Principal. He was part of the SGB representing PS staff and they would not know about the activities such as appointments. There were other SGB meetings he did not attend and he never attended a meeting between the official of the district and the SGB.
18. Mokoena submitted that he knew Makhaye and he was not spending most of the time at Prestigious. He knew that because he was the one who opened gates for him and he also worked outside. He knew Makhaye as an IDSO and he asked himself what he was doing because Kunene was Prestigious’s IDSO. He did not know if Makhaye was brought in at Prestigious as a Principal and Makhaye would give them instruction where they need to clean in the morning. In clarity, Mokoena testified that Prestigious did not appoint an administrator but it was the Applicant who acted as a Principal. He did not know who appointed the Applicant but they were told in a meeting attended by the Applicant, Mr Khansi as deputy to the Applicant and the Chairperson of SGB Mr Moloisane that they will be taking instruction from her. During the period of Montsho, the Applicant was a Deputy Principal and Mr Khansi was the HOD.

The Respondent’s Testimony and Evidence

19. The Respondent’s first witness Goitsimang Mochadibane (“Mochadibane”) testified that she was the Respondent’s Chief Personnel Office – Recruitment and Selection. She manages the post establishment of schools in the District and the office-based organogram.
20. Machadibane submitted that the letter which appointed Makhaye as an Administrator was generated and issued by Human Resource (“HR”) following the approval by the District Director. As HR they have crafted a similar letter to the Applicant to act as a principal at the beginning of the year but not for the period in the dispute. When Makhaye was appointed to act as an Administrator at Prestigious there was no other person appointed to act as a Principal.
21. In cross-examination, Machadibane submitted that he was based at the District offices and he never physically went to Prestigious. He was only involved in the management of post establishment and she was not responsible for performance appraisals. A cluster leader was responsible for performance appraisals at the school.
22. Machadibane submitted that Makhaye was the Principal from 15 December 2017. She conceded that it was supposed to be Makhaye who signs documents such as the insurance claim, rental agreements and formal documents submission to the Respondent and other documents as a Principal however they were signed by the Applicant. She further conceded that the Applicant performed the duties of the Principal based on her signing documents which are signed by the Principal and it was not fair for the Applicant not to be stopped by the Respondent when she was performing the duties of the Principal.

ANALYSIS OF EVIDENCE AND ARGUMENTS

23. I have considered all evidence submitted before me. I however will refer to evidence relevant to the determination or to support any of my findings. This does not imply that in coming to a determination I failed to consider or ignored other evidence.

24. It was evident towards the end of the proceedings that the Applicant had performed the duties of the Principal. The Applicant was able to demonstrate this through overwhelming evidence which was not disputed.
25. It was also not in dispute that in the absence of the Principal, the Deputy Principal will therefore perform the duties of the Principal albeit in a short term. The post became vacant after the incapacity of Montsho.
26. It was not demonstrated in this arbitration that Makhaye signed any document in his capacity as an Administrator of Prestigious. It was clear that the Applicant signed important documents such as insurance claim and the reports/submission to the Respondent District which required only the Principal to sign or approve. The Respondent could not demonstrate if it had an issue with the Applicant signing and submitting other documents which only the Principal had to submit. The evidence of Mochadibane confirms that.
27. The issue before me was that the Applicant was not appointed by the Respondent’s Human Resources to act as a Principal and therefore she was not entitled to an acting allowance. The Respondents submitted that it has appointed Makhaye to act as an Administrator. The Applicant on the other hand submitted that he performed the duties of a Principal, there was no one appointed to perform the duties and the Respondent was aware about this but she however was not paid the acting allowance.
28. What needs to be considered in the dispute of unfair labour practice is that the onus rests with the Applicant to prove on the balance of probability. “In Apollo Tyres SA (Pty) Ltd v CCMA and others [2013] 5 BLLR 434 (LAC) [2013] 34 ILJ 1120 (LAC) the court held that a benefit in terms of the LRA means existing advantages or privileges which an employee is entitled ex contractu or ex lege or granted in terms of a policy or practice, subject to the employer’s discretion”. As stated above the Applicant was not appointed to act by the Respondent’s HR and also that the SGB did not have the powers to appoint an acting Principal or an Administrator. The Applicant’s testimony that she was instructed by Kunene to act as Principal was disputed by the Respondent and it was not collaborated by any evidence. There was no evidence that was led to suggest that the instruction by Kunene amounted to an appointment to act because according to the Applicant Kunene requested the Applicant because of Montsho’s absence.
29. The Applicant was aware of the Respondent’s appointment process because she did not dispute the version of Mochadibane when she stated that the Applicant was issued with the letter similar to Makhaye when she previously acted as a Principal. It appears that the Applicant only disputes the appointment of Makhaye as an Administrator and not the process thereof. The Applicant also failed to demonstrate that an “instruction to act” was an accepted practice of the Respondent.
30. In dealing with the two IDSOs it was evident that there was no reasonable justification to appoint two IDSOs for Prestigious. I accept that the school was not performing however I fail to understand why the Respondent appointed two IDSO for the same school. There was no dispute that Kunene was an IDSO of Prestigious but I am not convinced that Makhaye would also be an IDSO only to support the Applicant in an acting capacity when there was an IDSO for the school already. In my view, he had a role to play which Mokwena partly confirmed when he testified that Makhaye instructed them to clean and that he would arrive at Prestigious in the morning as they would open gates for him. It should be noted that the Applicant did not call Kunene and Makhaye to testify to collaborate with her version. In this regard, I accept the Respondent’s version that Makhaye was appointed as an Administrator for Prestigious.
31. I have already made a finding that the Applicant performed the duties of a Principal however the Applicant was not formally appointed to perform these responsibilities. As stated above and in similar, Makhaye would have shed a light about his performance as an acting Administrator when the Applicant was performing his role and responsibilities. It was not clear why the Respondent did not consider why it was only the Applicant accounting to it and not Makhaye and why the Applicant did not question the two IDSOs at the same school. Also the Applicant, knowing the Respondent’s processes of appointments could not have continued to perform the duties over that period without a formal appointment letter authorising her to do so. It will be highly irregular specifically in the Public Service where every process is governed by (“rules statutes, policy and regulation”) to be overruled by the instruction of an official. I am therefore not convinced by the Applicant’s reliance on Kunene’s instruction to act or perform the role of a Principal. If indeed there was an instruction, it would not be the policy or practice of the Respondent. It is clear that without the appointment letter, the Applicant has no legally enforceable right to the benefit claimed. “In Thiso and others vs Moodley and others [2015] 5 BLLR 543 (LC) the Court held that the CCMA has jurisdiction to arbitrate, referring to the decision in Apollo, where the term “benefits” had been extended to include situations where employees do not have a legally enforceable right to benefit claim, but where the employer has a discretion to grant in terms of a policy or agreement”. In this matter, the Respondent does not have the discretion to grant the benefit in terms of policy or practice. I, therefore, find that the Applicant failed to prove that the Respondent committed an unfair labour practice.

AWARD

32. I , therefore , issue the following award;

32.1. The Applicant’s application of an unfair labour practice against the Respondent is hereby dismissed.
32.2. The ELRC is directed to close the file.

Chance Khazamula
ELRC Panelist
Date: 26 January 2021