In the ARBITRATION between

SAOU obo Sachse M
(Union/Applicant)

And

Department of Education – Eastern Cape
(Respondent)

Union/Employee’s representative: Dwain Stoltz an Attorney from Randel & Associates
Union/Applicant’s address:

Telephone: 041 585 9244
Telefax: 041 582 4445
Email: chanelle@randlaw.co.za

Employer’s representative: Anelie Slabbert (Labour Relations Officer)
Respondent’s address:

Telephone: 071 894 8607
Telefax: 041 585 9244
E-mail: Ansie68@mweb.co.za

Details of the hearing and representation

1. The arbitration of the allegedly unfair dismissal dispute between the Applicant (M Sachse) and the Respondent (Department of Education – Eastern Cape) was held at the Respondent’s office in Port Elizabeth on 8 October 2019.

2. The Applicant was present and represented by Dwain Stoltz an Attorney from Randel and Associates. The Respondent was represented by Anelie Slabbert, the Respondent’s Labour Relations Officer.

3. The proceedings were manually and electronically recorded.

4. Both the Responded and the Applicant submitted a bundle of documents and was admitted on record as Annexure A and Annexure B respectively

Issues to be decided

5. I have to decide whether or the Respondent’s conduct amounted to unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 ()”the LRA”).
Background to the issues in dispute
The Applicant is employed by the Respondent as a school Principal at Despatch Preparatory School since July 2017. The Respondent has allegedly failed to implement a decision of the Head of the Department taken on 7 November 2018 to upgrade the post of the Applicant from P2 to P3. The Applicant seeks as relief that the decision of the Head of Department with effect from 1 January 2019.

The Applicant’s case

6. Magdeline Sachse, was the only witness called to testify for the Applicant’s case. She gave evidence under oath and stated that in terms of the school establishment on pages 17 to 19 of Annexure A there were 13 (thirteen) educators attached to her school in 2017. That number increased to 14 (fourteen) in 2018. She retained the number 14 (fourteen) in 2019 as well.

7. Mr Kojane (the Head of the Department) stated in a letter dated 7 November 2018 that Despatch Preparatory School was upgraded from P2 to P3 and complete Annexure A which was attached thereto to indicate whether or not they support the appointment of the Applicant to the post. The School Governing Body (‘the SGB”) completed the said Annexure and recommended the Applicant to be appointed to the upgraded post. The upgrading of the school also determined the upgrading of the school principal as well. Her post remained not upgraded and she was still on P2 grade.

8. The Respondent did not implement the Head of the Department letter despite that she contacted it on several occasions requesting that such letter be implemented. The Head of the Department’s instruction, as he was the top person in the hierarchy, had to be implemented.

The Respondent’s case

9. Nosipho Mduma was the only witness called by the Respondent. She testified under oath and state that she was employed by the Respondent as the Assistant Director: HRA. Part of her duties was advertising the posts and the grading of the schools.

10. The grading of a school depended on the number of educators allocated to that particular school. The grading ranged from P1 to P5. After a school had been upgraded the post of a principal is also upgraded and becomes vacant and should be filled without undue delay. If the permanent incumbent to that post qualifies and had been recommended in writing by the SGB the post would not be advertised but filled in by the principal holding the post. The post would be advertised if the SGB did not recommend. She confirmed that the upgrading of a school determines the salary range of the principal.

11. The Applicant’s school had 14 educators on the establishment and was erroneously upgraded to P3. The Applicant’s school had an establishment of 13 in 2017. In 2018 it had an increased establishment to 14 which then qualified it to be upgraded to a new level (that is P2 to P3) on condition that the increased establishment of 14 was maintained for two years in succession. In this case it was incorrect for the Head of the Department to upgrade the school in 2018 as the new establishment of 14 had not been maintained for two years in succession. For the Applicant’s school to be upgraded from P2 to P3 it needed 14 educators on its establishment to be maintained for a period of two years in succession.

12. She submitted that the letter written by the Head of the Department indicating that the Applicant’s school should be upgraded was not directed to the Applicant but to the SGB.

Analysis of evidence and argument

13. The parties submitted written closing arguments which I have taken into consideration in my decision.

14. The Applicant disputed the Respondent’s submission that the Head of the Department’s letter was not directed to her but to the SGB. She submitted that the Head of the Department signed the letter that her school should be upgraded.

15. She did not dispute that at the time the said letter was signed it the increased establishment was not for two years in succession. She also did not dispute that the policy provided that the increased number in the establishment should be for two years in succession. The Applicant relied only on the letter of the Head of the Department that her school should be upgraded.

16. I have considered the Applicant’s argument as cited from, MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute 2014 (3) SA 481 (CC) (“Kirland Investments”), ‘that administrative action is valid and binding until set aside by a competent court of law’. I am of the opinion that the Court, in this case, did not refer to administrative action that is obviously taken in disregard of the law.

17. It is clear that the Head of the Department, at the time of writing the letter that the Applicant’s school should be upgraded, disregarded or deviated from the provisions of the Respondent’s policy on school establishment as cited on pages 11 to 13 of Annexure A. No evidence was lead that there was justifiable reason for him to deviate or disregard the policy.

18. Here it is not a question of an administrative action taken consequent to a debatable interpretation of the policy but there is ‘obvious’ (my emphasis) disregard of the policy. The decision of the Court in Kirland Investments was not to set a precedence for wilful disregard of the law.

19. A situation where one would take an administrative action that is obviously in conflict with the law and then hides behind the decision in Kirland Investments cannot be allowed. Here, the policy is clear that the minimum number of the educators in the establishment should be maintained for two years in succession. I cannot conclude on the basis of the Head of Department’s unjustifiable disregard of policy that the Applicant’s post should be upgraded. Disregard of the policy or deviating from it for no justifiable reason would promote lawlessness and open doors for corruption

20. In the light of the evidence before me I am satisfied that the Applicant has failed to its case on the balance of probability.

Award

21. I find that the Respondent’s conduct does amounts to unfair labour practice in regard to promotion as per the provisions of section 186 (2) (a) of the LRA.

22. I order that the Applicant’s case is dismissed.

Dated and signed at Port Elizabeth on this day 25……. of October………………………………2019

Signature: ___ ___________________________
Mr Solomzi Mpiko Commissioner: _________________