IN THE EDUCATION LABOUR RELATIONS COUNCILS

Case No: ELRC602-24/25GP

In the Arbitration Proceedings between:

SADTU obo TI MUKHUSWANI (APPLICANT)

And

DEPARTMENT OF EDUCATION, GAUTENG PROVINCE (RESPONDENT)

PANELIST:
Ntjatja Klaas Aphane
HEARD:
04 DECEMBER 2024
DELIVERED:

 28 JANUARY 2025 

 ARBITRATION AWARD   

Applicant’s representative: Represented himself.
Respondent’s representative: Mojalefa Lefosa (Labour Relations Manager) Department of Education: GP
DETAILS OF THE HEARING AND REPRESENTATION:

1. This is the arbitration award in the arbitration proceedings concerning an Interpretation and Application of Collective Agreement (ELRC Resolution 1 of 2021) dispute between, Thilivhali Isaiah Mukhuswani, the Applicant and the Department of Education: Gauteng Provincial Government.
2. The dispute was referred to the ELRC in terms of section 24(2) of the Labour Relations Act 66 of 1995 (the LRA). This dispute is about the alleged non-compliance with ELRC Resolution 1 of 2021.
3. The arbitration was scheduled on 04 December 2024. The arbitration proceedings was held under the auspices of the ELRC in terms of section 24(5) of the LRA. The arbitration proceeding was held on 04 December 2024, virtually through zoom and later reconvened physically, the same day, at FNB Building, Braamfontein.
4. The Applicant was present and represented himself, whilst the Respondent was present and represented by its employee, Mojalefa Lefosa, Labour Relations Manager.
5. The arbitration award is issued in terms of section 138 (7) of the LRA.
6. The arbitration proceedings were digitally recorded and handwritten notes were taken.
7. The relief sought is the correct applications and interpretations of ELRC Collective Agreement (Resolution 1 of 2021).

THE ISSUES TO BE DECIDED

8. I am required to determine whether the Respondent, HOD, Department of Education: Gauteng Province, correctly or incorrectly, applied or interpreted, ELRC Collective Agreement Resolution 1 of 2021. THE BACKGROUND TO THE DISPUTE
9. The dispute arose as the result of the shortlisting of a Deputy Principal post at Kwena Molapo Comprehensive School around Lanseria area.
10. The grievance was lodged, and held in terms of the District Grievance Committee but the outcome was that there was no merit to the grievance. The Applicant appealed against the outcome of the DGC and the appeal was dismissed.
11. The Applicant referred the dispute to the ELRC, and the dispute was conciliated and conciliation outcome certificate issued that the dispute remained unresolved. The dispute was scheduled for arbitration on 04 December 2024.
12. Parties, the Applicant and the Respondent, submitted their respective bundle of documents. The Applicant submitted bundle of documents, “A”, consisting of pages of pages 1 to 19. The Respondent’s representative submitted a bundle of documents, bundle, “R”, consisting of pages 1 to 23.
13. The Applicant called one witness (Busisiwe Philda Theledi), whilst the Respondent’s representative called three witnesses (Nare Frank Moloto, Michael Thambatshira Maligane and Marebole Daniel Sekgobelo)
14. The parties agreed to submit written heads of arguments on 11 December 2024.

SURVEY OF EVIDENCE

15. I wish to state from the onset, that not all the evidence presented would be set out hereunder. Only a summary of the relevant evidence is contained herein.

THE APPLICANT’S CASE

16. The Applicant’s only witness was Busisiwe Philda Theledi, who testified under oath that she is a leader of SADTU, representing SADTU in the shortlisting process of the Deputy Principal position.
17. The purpose of the DGC was to assess if there are merits or demerits to the allegations of irregularities in the shortlisting of the Deputy Principal post. The DGC dismissed the grievance of the union, SADTU, as lacking merits.
18. The chairperson of the DGC for the short listing of Deputy Principal position process was Frank Moloto, and Mojalefa Lefosa, from Labour Relations Unit was the Scribe. The irregularities were that during grievance meeting, the Chairperson and Scribe switched role, wherein the Chairperson left the meeting and the Scribe chair the grievance process during the absence of the Chairperson.
19. During the shortlisting process, the Chairperson received a call on his cell phone, and requested to be excused. He requested the Scribe to continue with the meeting as Chairperson and the meeting. The call took approximately 30 minutes, meaning that the meeting continued without the chairperson for approximately 30 minutes. The presentation of the short listing process continued in the absence of the Chairperson for 30 minutes.
20. After the lapse of 30 minutes, wherein the Chairperson was communicating telephonically, he came back and the Chairperson and Scribe switched role again, Frank Moloto assumes his chairing of the meeting and Mojalefa Lefosa reverted back to Scribe.
21. The chairperson, Frank Moloto, instructed that, Mojalefa Lefosa, must take over the Chairing of the meeting. The representative of SADTU and NAPTOSA were ignored by the Chairperson. The Scribe is not supposed to be a member of the DGC but must only support the DGC with secretarial services, as per ELRC Collective Agreement Resolution 1 of 2021, (more in particular clause 17.5.1.d.ii).
22. The NAPTOSA representative arrived late and was unknown to her, and it was a young man unknown to her and the NAPTOSA representative was not the usual guy known to her. Though the young guy from NAPTOSA introduced himself, she does not remember his name and surname.
23. The chairperson, Frank Moloto, was not briefed of the progress and the discussions that took place during the 30 minutes of his absence The continued as normal and therefore the decision making process was compromised. The Scribe stop taking minutes upon taking the chairing of the meeting and therefore minutes were not true reflection of what took place on the day.
24. The Scribe did not give the Chairperson feedback.
25. During cross examination, she conceded that the deliberation of the DGC took place after all presented their version, the grievant and the short listing panel members. The Scribe continued to take minutes during the deliberations.
26. During the cross examination, she conceded that indeed R14, attendance register was true reflection of parties that were present and both SADTU brought an observer and NAPTOSA brought an observer, for capacity building purposes. She also admitted that she did not sign the attendance register.

THE RESPONDENT’S CASE

27. The Respondent’s representative first witness was Frank Nare Moloto, who testified under oath that on 30 July 2024, he was presiding over the DGC. When the meeting started, he told everyone present that he was expecting a call from head office and all members agreed that he can recuse himself to take the call when head office call.
28. He requested the meeting to be adjourned to take the call, but he was persuaded that he could take a call and they will proceed and keep him up to speed when done with his call. When head office called, the Applicant was done with his case and the short listing panel was about to start with their presentation.
29. The Scriber continued with annotating minutes when point 2 was responded to, when he returns within few minutes, they were about to start with topic 3. He personally introduced topic 3. He did not miss anything as the minutes of topic 2 was captured by the Scribe. The topic 2 was deliberated upon in his presence during the deliberation process.
30. There was no co-chairing of the DGC process. Whilst the Principal was presenting topic 2, he came back and the call did not even take 3 minutes.
31. The witness of the Applicant, Busisiwe Philda Theledi, was conflicted because she was a member of the DGC and misrepresented facts about the process.
32. The second witness for the Respondent was Thambatshira Michael Maligane, who testified under oath, that he was representing the shortlisting panel for the position of the Deputy Director, on 30 July 2024.
33. The Chairperson, Frank Nare Moloto, pleaded with all present before the start of the DGC meeting that, he is expecting a call from head office and as soon as head office call, they can either adjourn for few minutes and it was agreed by all present that the meeting should continue and the Scribe should take minutes.
34. When head office called the Chairperson, the Applicant was done with presenting his version, the panel was about to give their version.
35. Frank Nare Moloto was the Chairperson and Mojalefa Lefosa was the scribe, there was no switching of roles, as they both play their roles to the end of the DGC.
36. SADTU was represented by Busisiwe Philda Theledi with one observer and NAPTOSA as well was represented with one observer.
37. He presentation was for few minutes and the Chairperson was back. He certainly did not talk for more than 10 minutes; it was far lesser even though did not annotate time spent. The Chairperson left whilst he was presenting and came back whilst about to wrap up topic 2.
38. The third witness for the Respondent was Marebole Daniel Sekgobelo, who testified under oath that he was NAPTOSA representative to the DGC, and he brought an observer for transfer of skills and training purposes. The observer was Vuyo.
39. Nare Frank Moloto was the Chairperson of the DGC on 30 July 2024, ground rules were set, and the Chair indicated that he is expecting a call from head office. The meeting can adjourn and they opted to proceed with the meeting.
40. There was no co-chairing of the meeting and the call with head office did not take long, and they were discussing topic 2 and the Principal was not yet done when the Chair returns to the meeting. The call was about either 5 to less than ten minutes.

ANALYSIS OF EVIDENCE AND ARGUMENTS

41. In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedures, ELRC Resolution 1 of 2021.
42. Everyone has the right to a fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. This right is well entrenched by section 185 of the LRA, which provide the right not to be unfairly dismissed or subjected to unfair labour practices.
43. Three witnesses of the Respondent provided credible, consistent, highly probable evidence and corroborated each other with regards to ground rules, request prior to the meeting by the Chair to take call from head office, the time frame of the call and the roles of each parties at the DGC.
44. The Applicant’s witness was highly disingenuous and her evidence riddle with so much inconsistencies and downright dishonesty. She denied that the representative of NAPTOSA was at the meeting but in her own words, there was a young guy. This despite the fact that SADTU and NAPTOSA brought one observer for capacity building purposes,
45. Surely 30 minutes was out of sync with the Chair, Principal and NAPTOSA representative observations, who all three agreed that the time rage was between 3 or 5 but surely less than ten minutes.
46. NAPTOSA just like SADTU are social partners in the public educational sector but NAPTOSA chose honest, integrity and professionalism whilst the conduct and evidence of the SADTU representative leaves much desired. This cannot be indictment on SADTU but only one witness.
47. All Respondent’s witnesses independently confirmed events of 30 July 2024, with much clarity and certainty. There was only one Chairperson, Frank Nare Moloto, and one Scribe, Mojalefa Lefosa, and there was no switching of roles, during the DGC meeting.
48. Therefore, the Respondent did not flout or misapplied the ELRC Collective Agreement Resolution 1 of 2024. The Applicant’s case is without merit and substances, and is only based on deliberate misrepresentation of facts and the abuse of the dispute resolution process.

AWARD

In the premises, I make the following award

49. The Applicant, TI Mukhuswani, has failed to established that the Respondent flouted or misapplied the ELRC Collective Agreement Resolution 1 of 2021.
50. The dispute is dismissed.
51. There is no order as to costs.

Thus, done and signed at Pretoria, dated 28 January 2025.