25 October 2022 – ELRC788 – 20/21FS

IN THE ELRC ARBITRATION
BETWEEN:

MJ MOTSIRI “the Applicant”

and

DEPARTMENT OF EDUCATION – FREE STATE PROVINCE “the Respondent”

AWARD

Case Number: ELRC788 – 20/21FS

Last date of arbitration: 19 September 2022

Written arguments received on: 30 September 2022

Date of award: 21 October 2022 (extension granted)

COEN HAVENGA
ELRC Arbitrator

Education Labour Relations Council
ELRC Building

Details of hearing and representation

1. The arbitration hearing was held over several days, the last day being on 19 September 2022, at the Respondent’s offices in Sasolburg.

2. The Applicant, Moswetsa Joseph Motsiri was represented by Ms Muir, A, an attorney. The Respondent is the Department of Education, Free State Province, represented by Mr Gubuza, V.

Issue to be decided

3. The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties agreed that the arbitrator is to determine whether the Applicant’s transfer by the Respondent from Circuit manager to DCES manager constitutes an unfair labour practice related to the demotion of the Applicant as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), and if so, what relief is to be awarded.

4. The relief sought by the Applicant is reinstatement to the position of Circuit manager.

Background to the dispute

5. The Applicant referred an unfair labour practice dispute relating to demotion to the Council. The Applicant was transferred from Circuit manager to DCES manager. The Applicant alleges that it resulted in a change of status and as such constituted an unfair demotion, while the Respondent alleges that it was a lateral transfer in terms of the Employment of Educators Act, 76 of 1998 (“the EEA”) on the same terms and conditions of service without a change in status. The Respondent disputes that the transfer constituted an unfair demotion.

6. The Applicant also alleges that no proper consultation took place prior to the transfer being effected, and that it was procedurally unfair. The Respondent alleges that thorough consultation took place prior to the transfer.

7. It is not in dispute that the transfer caused no financial implication or prejudice for the Applicant

Summary of evidence
The proceedings have been recorded digitally, and a summary of the Applicant’s and Respondent’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.

Applicant’s case

8. The Applicant submitted the documents contained in Bundle A.

9. Moswetsa Joseph Motsiri, the Applicant, testified under oath that he has been employed by the Department of Education for about 30 years. The Applicant relayed all his qualifications. He was promoted to Circuit manager in 2013.

10. The duties of a Circuit manager included being the head of the circuit, to supervise school principals, to ensure the effective supervision, management functionality and performance of schools, in relation to administration, governance and curriculum delivery through professional and educational leadership, guidance and development.

11. A team meeting was held during November 2019 wherein some of the circuit managers were advised that due to operational requirements they would be transferred to other departments within the department. The Applicant’s name was mentioned as part of the restructuring. The Applicant raised his concerns in regard to the move and that he did not agree with the move. The Director indicated that he and a few other employees will have until 7 November 2019 to address the situation.

12. A further meeting was held on 1 November 2020 wherein it was stated that the individual consultations will occur on 1 December 2020, as reflected in B11. That consultations never occurred. A request for a meeting with his supervisor, Mr Mangojane, was refused by the Director.

13. The circuit managers requested a meeting wherein they invited the union on 17 December 2020. They were however told that the decision to transfer is final. He did understand the reason for the move, which was the restructuring, but he was not happy with it. He did lodge a grievance.

14. The Applicant referred to A46, the Collective Agreement no. 4 of 2017: Job Descriptions for Office Based Educators. A57, clause 3.4, contains the duties for the DCES: Management position to which he was moved. There are no supervision duties. A51, clause 2, contains the Circuit manager duties, his former position. There is a huge difference in duties, levels of responsibility and authority that a Circuit manager has in terms of supervising principals. A DCES does not supervise. Transferring him to DCES takes away his responsibility and status as it is seen in the department as a less important job.

15. The Applicant referred to A23, a letter from Mr Masike, a colleague also appointed as a circuit manager, requesting that he be moved from Circuit manager to DCES management as he was near retirement. The Director refused to consider this option.

16. The Applicant stated that a post for circuit manager became available and was advertised while he was busy with his grievance, but he was not considered for that post. He was not given a reason why he was not considered for that post, and a new person was appointed.

17. He is unhappy with his transfer to DCES: Management because it is a demotion, and he was not consulted.

18. As circuit manager he had two secretaries and well as a vehicle to his disposal. After he was moved the two secretaries was taken away and he also does not have the vehicle to his disposal any longer. He now uses his car to visit local schools only. The principals were his subordinates, but they no longer report to him. He is no longer part of the district management team.

19. During cross-examination, the Applicant testified that the transfer did not affect his salary. His benefits were not affected. His status, power, responsibilities, and authority were affected.

20. The Applicant knew the reason for the circuits being reduced and does not dispute it. He only disputes his transfer. The Director did have the authority and powers to move him to DCES. Section 8(1)(c) of the EEA does give the HOD the right to transfer any educator to any department.

21. He was not properly consulted, because it was not done individually. The issue of rationalisation was discussed in the meetings. There were about five meetings where the issue of rationalisation was discussed, where information was given and the rationale behind the restructuring was discussed. He is unhappy because they were promised more individual consultation.

22. Masike wrote his letter after the Applicant had been transferred. Masike had no power to decide who to transfer. The circuit manager post that was advertised was for circuit 6, not circuit 1 where the Applicant was employed. It became available as result of a retirement after the Applicant had been transferred.

23. There is no policy of any kind that determines that circuit managers should be treated differently from other DCES managers. The Applicant’s dispute is about power, prestige and responsibility.

24. The Applicant agreed that there was a need for restructuring the district. His terms and conditions of employment, salary and benefits were not affected.

25. Moilwa Mangojane (“Mangojane”) testified under oath that he has been working for the Department since 1987. He is a Chief Education Specialist (CES). He supervises the circuit managers.

26. He has been part of the process to move circuit managers. He testified that he was not aware of individual consultations that were held. He did not know whether they were consulted individually.

27. Both DCES managers and circuit managers report to him. They do not have the same responsibilities. The level of authority is different.

28. During cross-examination Mangojane testified that there is a difference in responsibilities and status between DCES management and circuit managers, as DCES management has less responsibility and status that circuit managers.

29. Matshwe Nathaniel Masike (“Masike”) testified that he was employed as a circuit manager by the Department of Education and have been employed by the Department for over 41 years.

30. He wrote a letter to the Director, as reflected in A23. He requested to be moved from Circuit manager to DCES management as he was almost retiring and that the younger generation, such as the Applicant specifically should be given a chance to proceed as a Circuit manager. His proposal was rejected rudely.

31. He wrote this letter as he wanted to resolve the conflict. He was of the opinion that the department could save time and effort of training an external appointment as Circuit manager.

32. During cross-examination Masike testified that he did not know what the Applicant’s dispute was about. He was only told to testify about his letter.

33. When he offered to move to DCES manager he did not see it as a demotion, he felt he could help the Applicant. It would not have been problematic for him. Circuit managers are at the same level as DCES managers, which is why he did not have a problem to offer the option. He only made a proposal. He agrees that the District Director made the correct decision. He would not have been affected in terms of his retirement benefits, because the positions were at the same level.

Respondent’s case

34. The Respondent submitted the documents contained in Bundles B and C.

35. Dr. Vusumzi Chuta (“Chuta”), the district director, testified under oath that during 2020 there was a rationalisation of circuits in the district. It was informed by the Policy on Roles and Responsibilities of Districts and Circuits, 2018. The process had to be completed within 7 years from 2018. There were meetings and consultations with all departments involved.

36. He met with 10 circuit managers. There was a proposal to collapse from 10 to 6 circuits, the cut-off being a minimum of 15 schools for a circuit. The DMT endorsed 7 circuits. In that meeting it was explained that the circuit with the least schools, i.e. 5 schools, was circuit 10. Thereafter it was the Applicant’s circuit 1 with 7 schools. Circuit 4 had 10 schools. He told the meeting that the criteria will be that the circuit managers with the least schools would be transferred to DCES managers.

37. He said that 3 colleagues were affected. Further consultations were held and the unions agreed to all processes. The affected managers withdrew their submissions and said Chuta must take the decision. The HOD who has the power to appoint endorsed the transfers. The Applicant was placed as DCES manager.

38. It was a horizontal move, and not a vertical move. All districts in the Department were affected by the rationalisation, not only the Applicant’s district. There is minutes and attendance registers of the consultation meetings. The Applicant was present in all meetings.

39. Everyone who was affected was transferred, not only the Applicant. There was no change in scope of work, or conditions of service. Only the responsibilities changed. Circuit managers are all on DCES level. The Applicant was not on a higher level as circuit manager. The authority of the positions are the same. They have no power over schools and educators, that authority lies with the HOD, and is delegated to the district director.

40. The Applicant is misleading this arbitration if he calls the transfer a demotion. Circuit managers have no powers to appoint, transfer or change curriculums. They only have roles and responsibilities. The Applicant’s claim of a reduction of power is phallicy.

41. During cross-examination Chuta testified that he rejected Masike’s proposal because there was no merit in it. He had no authority to suggest who to appoint in his post. The transfers were made after consultations. It was done through written communication. The Applicant never responded to the request to make proposals. The unions were involved and agreed that all processes were followed. They did not contest any of the transfers. Only the Applicant indicated he would go the legal route.

42. All DCES managers have the same status. Circuit managers do not have more status. They may have more KPA’s, but the weight of each KPA differs. The Applicant only has a perception of higher status, which is not real. There exists no super DCES positions.

43. It is untrue that his vehicle and secretaries were taken away. The Applicant was at a level that used government pool vehicles. It was not allocated to the Applicant personally. He now still has access to pool vehicles. The admin coordinator is still available to him. He has three SCES’s reporting to him. He still works directly with principals. He lost no management benefits.

Analysis of evidence and argument
44. The Applicant and Respondent submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing. I have also considered all the relevant provisions of the South African Schools Act, no. 84 of 1996 (SASA), the Employment of Educators Act, no. 76 of 1998 (EEA), the Education Laws Amendment Act, 24 of 2005, the Personnel Administrative Measures (PAM), 1999, as well as Collective Agreement 4 of 2017: Job Descriptions for Office Based Educators.

45. The parties agreed that the arbitrator is to determine whether the Applicant’s transfer by the Respondent from Circuit manager to DCES manager constitutes an unfair labour practice related to the demotion of the Applicant as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”).

46. The Applicant claims that the Respondent committed an unfair labour practice relating to demotion by demoting him unilaterally from the position of Circuit manager to DCES manager.

47. The statutory provision in terms of which this tribunal may arbitrate disputes about the demotion of an employee, is to be found in section 186(2)(a) of the LRA, which defines unfair labour practices with regard to demotion as follows:
“Unfair Labour Practice’ means any unfair act or omission that arises between an employer and an employee involving … unfair conduct by the employer relating to the … demotion … of an employee.”
48. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case ……………on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something.
49. Mere unhappiness or a perception of unfairness does not establish unfair conduct – see Du Toit et al Labour Relations Law (5th ed) 488. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA)1 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC)2 paragraph 38).
50. At common law, an employer is not entitled to demote an employee without his agreement and demotion without the employee’s consent is seen as a unilateral amendment of the terms of employment, constituting a repudiation of contract, which entitles the employee to either hold the employer to the existing terms, or cancel the agreement and sue for damages (see Groenewald v Cradock Munisipaliteit en ’n andere 1980 (4) SA 218 (E), (1980) 1 ILJ 269 (E) at 272–3; Denny v SA Loan, Mortgage & Mercantile Agency Co Ltd 3 EDC 47; Smith v Cycle & Motor Trade Supply Co 1922 TPD).
51. The arbitration of a demotion dispute does not entail a hearing de novo, but a review of the employer’s decision. In applying the Sidumo test to promotion disputes, it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair – see Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC).
52. It is in dispute whether the Applicant was in fact demoted by the Respondent. The Applicant argued that there is a difference in status between the two positions, and the transfer therefore constituted a demotion. The Applicant also argued that a lack of consultation rendered the transfer unfair. The Respondent argued the contrary, that the Applicant was properly consulted, and that there was no change in status that would result in a demotion.
53. The Applicant argued that his transfer from the post of Circuit manager to the post of Deputy Chief Education Specialist (DCES): Management, was a demotion.
54. I find no substance in the Applicant’s argument that his transfer resulted in a demotion. Although there may be a difference in KPA’s and responsibilities between the two positions, they both are on the same DCES level. There was no change in the Applicant’s terms and conditions of employment and benefits. Chuta testified that there are no super DCES’s who can claim a higher status. The Applicant relies on a perceived subjective claim to power and a difference in status which was not proven on a balance of probabilities.
55. The Applicant provided no proof of any policy or regulation that would place a Circuit manager at a higher than that of a DCES manager.
56. Collective Agreement No. 4 of 2017: Job Description for Office Based Educators might display a difference in the number of KPA’s between the two positions, but the Applicant did not present convincing evidence in terms of the weighting of each KPA that would result in a material difference in status between the positions.
57. It is not in dispute that the Applicant was transferred due to operational requirements. The number of schools in his circuit did not meet the minimum number required to form a circuit and had to be collapsed. This was a rationalisation exercise that affected all districts in the Department, not only the one in which the Applicant is employed. The rationale of the reduction of circuits has not been disputed by the Applicant.
58. The Applicant’s transfer took place in terms of the provisions of section 8(1)(c) of the EEA, which grants the Head of Department the authority to transfer any educator in the service of the provincial Department of Basic Education to any other post in that department. I have already found that the transfer did not constitute a demotion.
59. I am satisfied that the District Director engaged in meaningful consultations with all the affected employees, including the Applicant. The fact that the unions signed off on the process is indicative of that fact.
60. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paragraph [29]–[32] the Labour Court held that: “There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present.”. These principles aptly apply in this demotion dispute as well.
61. I find the decision by the Respondent to transfer the Applicant from Circuit manager to DCES manager to be justified in law. It is indeed so that the Respondent retains the managerial prerogative to restructure its operations. In the matter of Herbert and the Department of Home Affairs CCMA (1998) it was held that Goliath v Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC) provides the correct answer where it was stated there that “in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion”. Le Roux, in his article entitled “Developments in individual labour law” in Current Labour Law 1996 page 46, reinforces this view.
62. Dissatisfaction or a general perception of unfairness is not sufficient. In casu where there is no obvious or glaring deviation from the prescribed process, I find no substance in the argument that the Applicant was treated unfairly. The Respondent did not act irrationally, capriciously or arbitrarily.
63. The onus is on the Applicant to prove an unfair labour practice relating to demotion, and I am of the opinion that the Applicant did not discharge that onus. I am satisfied that the Respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as provided for in section 186(2)(a) of the LRA. Accordingly the Applicant’s claim must be dismissed.
64. The Applicant is not entitled to relief.