26 November 2025 -ELRC185-25/26GP

Commissioner: Amos Mthimunye

Case No.: ELRC185-25/26GP

Date of the award: 20 November 2025

IN THE DISPUTE BETWEEN:

MOLOI SIPHIWE APPLICANT

and

GAUTENG DEPARTMENT RESPONDENT

OF EDUCATION

DETAILS OF HEARING AND REPRESENTATION

[1] This arbitration process was set down for hearing at 09h00, on 30 July 2025, 08 September 2025 and 03 November 2025. The applicant, Mr SIPHIWE MOLOI was in attendance, and represented by Mr Skosana (SAUPSWU Shop steward / official). The respondent, the GAUTENG DEPARTMENT OF EDUCATION was represented by its employee, Ms Nombeko Manda.

ISSUE TO BE DECIDED

[2] I am required to determine whether the respondent has committed unfair labour practice.

PRELIMINARY MATTER

JURISDICTIONAL ISSUE

[3] The respondent raised a jurisdictional issue which I dealt with and issued a written ruling on September 2025.

[4] The ELRC transmitted my Ruling to both parties after which this matter was again set down for arbitration 22 September 2025.

BACKGROUND INFORMATION TO THE DISPUTE

[5] The applicant is currently employed by the respondent as Educator (HoD) for Mathematics and Mathematics Literacy at Rivoni Secondary School. He had referred a dispute of unfair labour practice relating to transfer.

[6] The applicant referred a dispute in terms of Section 186(2) of the Labour Relations Act, Act No. 66 of 1995, as amended. The applicant alleges that the respondent committed an unfair labour practice in that the respondent unfairly transferring him from Rivoni Secondary School, to the Gauteng East District office of the department of Education.

[7] The applicant is seeking the respondent to reverse its decision to transfer him, and reinstate him to back to his substantive position of Educator (HoD) for Mathematics and Mathematics Literacy at Rivoni Secondary School.

[8] Both parties handed in bundles of documents which were accepted and marked “A”, and “R”.

[9] The proceedings were digitally recorded, and handwritten notes were also taken.

[10] The dispute remained unresolved, and the arbitration process commenced. Hereunder is a brief account of the arbitration in terms of Section 138 of the Labour Relations Act 66 of 1995, as amended, (hereinafter referred to as the LRA).

SURVEY OF EVIDENCE

HEREUNDER ARE THE SUMMARISED VERSIONS OF THE PARTIES

The applicant’s / Employee’s case

[11] The applicant, Mr Siphiwe Moloi testified that the respondent had served him with a letter informing him that there was an intention to transfer him from his place of work. The respondent had invited him to be heard on this issue. The applicant had made representations objecting to the transfer. Despite the representations, the respondent proceeded to transfer him. The respondent had served him with a letter transferring him from Rivoni Secondary School to Pioneer High School.

[12] It is common cause that the applicant did not accept the decision of the respondent to transfer him. Hence, he got aggrieved and referred the dispute to this Council.

[13] The applicant’s witness, Mr Sabelo Mphumeleli Manzini testified that he is a member of the School Governing Body (SGB) from the component of parents, and that he has served in the SGB for more than two (2) years. The SGB was not involved in the decision making of transferring the applicant. The SGB wrote letters to the respondent, the Circuit Manager and the District Director wanting to know when would the applicant return back to Rivoni Secondary School after he (the applicant) was exonerated from the allegations in a case where an Educator from Rivoni Secondary School was murdered.

[14] Since the applicant had left the school there is not stability. Learners do not have a Maths and Maths Literacy Educator. The school needs the services of the applicant back at Rivoni Secondary School.

[15] The applicant’s witness, Mr Lehlohonolo Joseph Petlele testified that he is a member of the SGB from the Educator’s component, and that he has been a member of the School Management Team (SMT) since the year, 2016. The SMT and the SGB were not consulted about the transfer of the applicant.

[16] Since the applicant left there has been instability at the school due to lack of an Educator and /or leader for Maths and Maths Literacy. There had been complaints about the lack of an Educator for Maths and Maths Literacy since the departure of the applicant. The learners have written a letter complaining about the lack of Educator for Maths and Maths Literacy.

Respondent’s / Employer’s case

[17] The respondent’s witness, Ms Kgomotso Portia Tshiovhe testified that she is employed by the respondent as Deputy Director, Special Cases Labour Relations. Her main job responsibilities include dealing with precautionary suspensions and transfer of Educators in the district offices and the department.

[18] She received reports from Gauteng District office that the applicant had threatened to assault the Deputy Principal, the now late / deceased Mr Nhlengethwa. These threats were extended to the respondent’s employees, Messrs Shozi and Mazibuko. She made assessments, and based on the seriousness of the allegations a decision was made that the applicant be placed on precautionary transfer.

[19] The Head of Department (HoD) approved that a process of instituting disciplinary steps against the applicant be implemented. Towards the end of the disciplinary hearing process, the deceased, Mr Nhlengethwa was murdered on his way to a consultation with the employer’s / department’s representative. The consultation was in preparation for the disciplinary hearing against the applicant. Since the murder of the witness, the late Mr Nhlengethwa, other witnesses withdrew from availing themselves to testify at the disciplinary hearing due to fear for their lives. The disciplinary hearing against the applicant could not proceed any further due to non-availability of witnesses.

[20] The respondent’s decision to transfer the applicant came as a result of the District Director having concerns about the presence of the applicant at Rivoni Secondary School.

ANALYSIS OF ARGUMENTS AND EVIDENCE

[21] It was common cause that the respondent had prior to effecting its decision to transfer, served the applicant with a notice of intention to transfer him. It was common cause that the applicant had made representations, and that after such representations were made, the respondent proceeded to transfer the applicant.

[22] Considering the evidence of both parties herein above, it was clear to me that the respondent had in this instance complied with a fair procedure. The decision to invite him and communicate its intention to transfer him complied with the principle of natural justice. Hence, I am of the view that in this instance, the respondent has demonstrated that it followed a fair procedure before taking a final decision to transfer the applicant.

[23] I considered the fact that the applicant is of the view that the respondent did not consider his representations. However, the respondent had disputed this assertion. It was the applicant who made an allegation that the respondent had not considered his representations. Therefore, the onus lies with the applicant to prove the allegation.

[24] Having regard to the evidence tendered by the applicant, there was no material, reliable form of evidence that could persuade me that indeed the respondent had not considered his representations. I am of the view that an allegation should be evidence based. If the allegation is not supported by any other form of evidence, such allegation cannot simply stand to be reliable and truthful.

[25] The applicant had testified and referred me to a Collective Agreement No. 4 of 2016 on transfer of serving Educators in terms of operational requirements, and the Educators Act, Act No. 76 of 1998. I will not repeat what the collective agreement and the law provide with regards to the transfer of Educators, save to relate the evidence of the parties to the provisions of the collective agreement and the law.

It is important to mention that the respondent did not dispute the evidence of the applicant that they have not consulted the applicant in line with the provisions of the law and the collective agreement. However, the respondent had communicated its intention to transfer the applicant.

[26] It is important also to mention that the decision to transfer an Educator is the prerogative of the employer / respondent herein. I do not have powers to dictate to the respondent where the applicant / employee should be transferred to. However, I have powers to order the respondent / employer to halt the transfer pending proper consultation with all the stakeholders, for example, the school, SGB, applicant, relevant trade unions etc.

[27] In this case I considered the evidence of both parties, and I came to a conclusion that the final decision of the respondent was not properly made due to the fact that there was no consultation with the relevant stakeholders and the applicant. The law and the collective agreement prescribe that consultation is a prerequisite. Therefore, it is important that this prerequisite must be adhered to before a decision is finally implemented. Evidence in this case pointed to the fact that the respondent had failed to adhere to the provisions of a collective agreement and the law. I must say that a notice of intention to suspend is not consultation but it is to inform one about a decision to be taken. Consultation would consider many things, including hearing the affected employee and / or other relevant stakeholders and / or factors. It is evident that the respondent has failed to do this exercise.

[28] In this case it is not clear whether the decision of the respondent is that of a permanent or temporary transfer. It is clear from the evidence of both parties that there was no consultation, and that certain considerations were not taken into account. However, I must mention that it was clear enough evidence of the respondent that the decision to transfer the applicant was based on the allegations that some Educators feared for their lives after the murder of their colleague, the deceased Mr Nhlengethwa. However, it is also worth mentioning that the SGB and the SMT were not properly and sufficiently consulted before arriving at a decision to transfer the applicant. Hence there is a conflict of interest between the respondent / employer, the school, SGB, SMT and the applicant.

[29] The fact that it is not clear whether the transfer is permanent or temporary creates further conflict of interest and leaves uncertainties amongst the parties including the relevant stakeholders who have interests in this matter. I am considerate of the fact that the respondent as the employer has a duty to protect its employees, Educators, but also as a public institution has equal duty to protect the learners and the community it serves. Therefore, in exercising its powers to protect one or the other sector, such power should in the context of employment law be exercised in a way that is fair to an employee. Fairness, and fairness alone should always prevail.

[30] In light of the evidence herein above, I came to a conclusion that the applicant has succeeded to discharge the onus that the respondent has committed unfair labour practice, in that the decision to transfer him was procedurally unfair. It may be that the respondent transferred the applicant for a fair reason. However, the applicant was not afforded an opportunity to be heard on the reasons whether or not to transfer him.

[31] In terms of clause B.6.9.1 the Collective Agreement No. 4 of 2016 on Transfer of Serving Educators in terms of operational requirements, a commissioner / arbitrator is empowered to set aside a decision of the respondent / employer, Gauteng Department of Education. I have considered this empowering provision and came to a conclusion mentioned hereunder.

[32] In light of the circumstances and evidence herein above, I have arrived at a conclusion that the decision of the respondent to transfer the applicant from Rivoni Secondary School to Pioneer High School should be set aside. The respondent should start afresh, do proper consultation with the applicant and all relevant stakeholders, and afford the applicant and all relevant stakeholders an opportunity to be heard about a reason to transfer the applicant.

AWARD

[33] The applicant, Mr SIPHIWE MOLOI has succeeded to discharge the onus that the respondent, GAUTENG DEPARTMENT OF EDUCATION has committed unfair labour practice, in that its conduct was both procedurally and substantively unfair.

[34] The respondent’s decision to transfer the applicant is hereby set aside effective from the date of issuing this award.

[35] The respondent is ordered to start afresh, consult with the applicant and all relevant stakeholders, and afford the applicant including all other relevant stakeholders to be heard on the reason for a decision to transfer him.

[36] The respondent should commence with the process of consultation by no later than 15 December 2025.

[37] There is no order as to costs.