29 October 2026 – ELRC326-26/27GP

Commissioner: Nasreen Jajbhay
Case No: ELRC 326-26/27GP

Date of Award: 28 October 2026

In the ARBITRATION between:

TEMBA RAYMOND NKOSI APPLICANT

and

DEPARTMENT OF EDUCATION – GAUTENG RESPONDENT

Union/Applicant’s representative: In person

Respondent’s representative: Ms Manda

DETAILS OF HEARING AND REPRESENTATION

The dispute was referred to the Education Labour Relations Council, hereinafter (“Council”) by the applicant, Mr Nkosi.
The matter was heard virtually on the 20th August 2026 and 21st October 2026 respectively.
The applicant appeared in person and was unrepresented.
The respondent was represented by the employee relations officer, Ms Manda.
The applicant did not require the services of an interpreter.

ISSUE TO BE DECIDED
6. I am required to decide whether the applicant was demoted. I am further required to pronounce on an appropriate remedy, if applicable.

BACKGROUND
7. The applicant is employed as an educator. He commenced employment with the respondent on the 1st April 2001. The applicant is currently employed and is remunerated at a monthly salary of R60 936.00. The applicant sought reinstatement to the position of principal.

SURVEY OF EVIDENCE
It must be noted that, the below submissions serve as what I believed to be the pertinent points presented and must be read in conjunction with the documents adduced. I am required to provide a summary and not a verbatim record of the submissions presented.

APPLICANT’S CASE
8. The applicant relied on a bundle of documents marked and referred to as “A” for ease of reference.
9. The applicant testified inter alia that, on the 1st November 2022 he was removed from the school based on allegations that were being investigated. After 90 days, he was served with 5 allegations. He returned on 14th April 2023 for 2 weeks. He was suspended. He was placed on precautionary suspension for 60 days. In February 2024, he enquired about his suspension. He was advised to wait for head office. A letter was delivered on the 15th March 2024 confirming that he was on suspension for a further 90 days. On the 9th March 2024, he received an amended chargesheet with 7 allegations. He was depressed and consulted a psychiatrist. He was admitted to hospital. He was invited for a hearing whilst he was hospitalized. After he was discharged, he attended a hearing in May 2025. He was issued with a notice of precautionary transfer for 90 days in March 2025. He objected to this. The respondent wrote to him on the 25th April 2025 stating that they acknowledge his objection however the transfer would stand. He is not working. He lost his pay progression and section 38A. He has been demoted and this is unfair. The hearing was finalized in March 2026. He received a verdict that he is not guilty in July 2026. On the 10th June 2026, he became aware of his demotion through an award in his favour. The respondent failed to make payment in terms of the award. His conditions of employment have been changed and his salary has been reduced. He referred to case law in the Commissioner’s jurisdictional ruling which state that demotion can manifest itself in various ways. He was getting R5000.00 from the SGB which he longer receives as he is not working.

RESPONDENT’S CASE
10. The respondent’s bundle of documents was marked “B” for ease of reference. Emily Mochela, assistant Director in Human Resources, testified inter alia that,. Her duties entail recruitment of staff at the district office and the schools. She ensures that the posts are filled on time with the correct people. The applicant was placed on precautionary suspension. This suspension was converted to a precautionary transfer. The applicant remains employed as the principal. There is no demotion. She referred to page 35 of “B” the print out states that he is employed as a P4 principal at Laerskool Kreft. Page 36 is a service record which confirming that he is a principal. This document shows activities that took place relating to the applicant’s appointment. He was promoted in 2021 from Senior Education Specialist to principal. Page 27 is a salary report confirming the applicant’s salary aligned to that of principal as at 3rd July 2026. Page 28 his name appears on the salary run as the principal. He continues to receive his salary at the rate of principal. Page 31 is a continuation for the month of July 2026. Page 33 is signed off by the acting principal, Snyman. Page 34 is the document she works with which is a post establishment. The blocks indicate how many posts the school qualifies for. It qualified for 1 principal post. The persal number illustrates that the applicant is employed as a principal and his service record. Page 31 is the salary he receives. It is dated 14 August 2026. It further shows that the applicant is receiving his salary on the 20th August 2026. Page 38 is a printed salary advice for March 2026. Page 29 is the salary advice for April 2026 as a principal. Page 40, 41, 42 and 43 for May 2026 also shows the salary advice confirming that the applicant received payment aligned to that of a principal. The same is true for the month’s of June and July 2026. When there is a demotion, a submission must be approved by the HOD. A letter is then issued. Once the demotion is accepted persal is updated. Since 2019 to date, there is no activity of demotion.

Sibongile Yende, DCES, testified inter alia that, Quality Management System, hereinafter (“QMS”) determines whether an employee qualifies for pay progression. Her role requires verification of the document. Once persal verifies the pay progression, an employee is paid. Page 44 of “B” is the award rendered in favour of the applicant ordering the respondent to pay the applicant the 1,5 % increase. The payment is in the process of being finalized. The matter is before head office.
Themba Tshangela, labour relations officer, testified inter alia that, his duties entail investigating reported cases of acts of misconduct. He represents the respondent in disciplinary processes and presides as a chairperson of disciplinary hearings. He knows the applicant who is employed as a principal of Laerskool. In November 2022 he served the applicant with a precautionary suspension. The applicant attended a disciplinary process. He was the representative throughout the process. They await the chairperson’s sanction report. He appeared as a witness in arbitrations wherein the applicant was involved. The applicant is not at school due to the precautionary transfer. It is a preventative measure, not a punitive measure. The applicant continues receiving his salary as a principal. The applicant is a former labour relations officer. The witness was appointed in the applicant’s position when a vacancy arose. After the expiry of the 90 days, where the proceedings would be compromised, the employer is permitted to extend the precautionary transfer. The applicant is aware that a disciplinary process is concluded once a written outcome is rendered. The applicant is entitled to lodge an appeal if he is dissatisfied with the chairperson’s outcome. The process has been delayed as a result of the applicant having submitted several sick notes booking him off until the 14th August 2026. The applicant’s actions contain racial connotations.

ANALYSIS OF EVIDENCE
13. In carefully considered the contending versions before me and applicable legal principles.
14. An award has been rendered in favour of the applicant awarding him pay progression. I am therefore not required to revisit this issue, having already been determined.
15. My determination is limited to whether the applicant has been demoted in terms of the dispute referred.
16. The applicant stated that period of suspension and precautionary transfer has spanned beyond 90 days.
17. The extended period and reduction in salary amounts to a demotion.
18. Whilst the period of precautionary suspension should be finalized within 90 days, where the proceedings would be compromised, the employer is permitted to extend the period.
19. The respondent submitted that the allegations levelled against the applicant are serious in nature.
20. The extension of this period does not, in itself prove that the applicant has been demoted.
21. It is common cause that allegations of misconduct had been levelled against the applicant and that he was found guilty of one allegation.
22. Further, the letter of conversion provides that the precautionary transfer will remain in effect for 90 days or (own emphasis) pending the final outcome of the disciplinary proceedings, whichever comes first.
23. The sanction report has not been presented to the parties.
24. The chairperson’s findings report was delayed due to the chairperson being hospitalized.
25. This was communicated to the applicant.
26. I found that the applicant had been placed on precautionary transfer pending finalization of the disciplinary hearing.
27. Emily demonstrated that only one post for a principal had been allocated to Laerskool.
28. The applicant was appointed to the role of principal and remains the principal.
29. It was not disputed that the applicant continues to receive his salary as a principal.
30. I was therefore not persuaded that the applicant has been placed in a lower position with a reduced salary.
31. I was not persuaded that the applicant’s status has been diminished.
32. I therefore found that the applicant failed to prove that he has been demoted and therefore has failed to make out a case for the relief sought.