Panellist: Seretse Masete

Date of Award: 19 /07/2024

In the ARBITRATION between:

MPHO EULENDA MAKWARELA

(Applicant) Union/Applicant’s representative: In Person

and
DEPARTMENT OF EDUCATION: LIMPOPO

(Respondent) Respondent’s representative: Sibongile Msibi

Particulars of proceedings and representation

1. The matter was held on 18 July 2024 at the employer’s premises in Polokwane.
2. The Applicant, Mpho Eulenda Makwarela (employee) represented herself and the respondent, Department of Education, (employer), was represented by Sibongile Msibi.
3. The proceedings were in English and digitally recorded.

Issues to be decided

4. I have to decide whether or not the removal of the employee from the school by the SGB and the union site steward constituted an unfair labour practice.
5. I further have to determine an equitable remedy should I find that there was unfair labour practice against the employee.

Background to the dispute

6. The employee was employed as an educator at Tshembani Primary Scool on 01 January 2005 earning around R350,000-00P/A at the time of the dispute.
7. The site steward related to her that she should leave and not come back to the school and further received a letter to the same effect from the SGB.
8. She challenged the procedural and substantive fairness of her removal from the school and wanted to be placed anywhere within the department but the school, she also wanted compensation.

9. The employer rejected the employee’s allegations citing that she was not told by the Principal or the circuit manager but a member of a union to leave, and no placement or compensation will be given to her.
10. The employer submitted one bundle of documents marked A and called one witness and the employee testified as a sole witness and submitted one bundle of documents marked B.

Survey of evidence and arguments
The Employees’ version
Mpho Eulenda Makwarela testified under oath as follows;

11. She was told by the school that she had a problem with learners, but the management never arranged a meeting with her to solve the problem. The SGB just removed her from the school and made her to report at the circuit. She was then taken to the circuit office and the circuit management did not resolve the matter. They (circuit) just went on with the move to remove her and she was so hurt about the incident. The site steward indicated to her that she was no longer required at the school because there was an issue of muti flying around at the school. She therefore no longer wanted to return to that school. She was told that the shop steward used to come to school with a gun for her. She felt that the school SGB did not have the powers to chase her away from the school. She no longer wanted to be an educator but to be placed in the offices within the Department. She also demanded compensation for her suffering.

12. In closing she indicated that she was humiliated before the eyes of the principal and circuit manager. She wanted to be placed at any education office around Mopani and not at a school as she no longer wanted to teach.

The employer’s evidence and arguments
The employer, Tshakhuma Eric Kharidzha, testified as follows

13. He knew the employee as she was an employee at the school where he was working. She was taken to Fuyatha Primary because of the grievances by the learners and the parents. The parents and the learners alleged that she was not doing her work up to the level of expectation. She was made aware about that in the parent’s meeting. The circuit office and parents met and resolved that she be removed from the school for her own safety. As a principal, he would advise her (the employee) to come to the level of the children. The bundle B letter was a summation of what transpired in the parents meeting on 26 April 2023. The bundle A letter was about the placement of the employee by the circuit at Fuyatha Primary school. Placing her then, was between her and the circuit office.

14. The employee did not cross question the witness.

15. In closing the employer representative argued that the school at which the employee was placed, was not done unilaterally and she did not object to it. The issue of placing her at a circuit office would depend on whether there was a need. She was once placed at the circuit but because there was no work for her, she was taken to another school. The department can only look at the issue of making her permanent at the school she was currently placed.

Analysis of the evidence and arguments

16. Common cause issues: There was a conflict between the employee and the parents. The employee was no longer at the school she was employed. She (employee) was temporarily placed at the circuit office but she was later placed at Fuyatha Primary school. She was currently still at Fuyatha Primary school.
17. Issues in dispute: the employee was removed from the school by the employer. The employee wanted to be placed in an office of the Department within Mopani District.

18. My analysis is that the employee referred the dispute of unfair labour practice in terms of s186 (2) of the Act. Section 186(2) of the Act does not cover placement of teachers, removal and or forced removal of employees from their place of employment as such acts involve contractual matters. In terms of Section 186 (2) of the Act, “unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving- (a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissal for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment other than dismissal, in contravention of the Protected Disclosure Act,2000 (Act no 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.

19. The employee in her relief prayed that the Council should remove her from her employment as a teacher and place her in the offices of the Department within the Mopani district. My findings on the balance of probabilities are that, the dispute of the employee does not fall within the ambit of s186(2) of the Act. The Council further does not have jurisdiction to remove educators from their stations and place them in the employer’s offices. Such issues are contractual disputes and the employee may choose to approach the courts for relief.

Award

20. The Council does not have jurisdiction to handle and make a determination on the employee’s case
21. The case of the employee, Mpho Eulenda Makwarela, is hereby dismissed.
22. No order on costs.

Seretse Masete Date 19/07/2024
Panellist