In the matter between:

O J MOLOI

Applicant

and

DEPARTMENT OF EDUCATION

Respondent

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION:

1. The hearing was held on 6 November 2013. Mr De Beer an attorney represented the Applicant and Mr Masihleho the Respondent.

2. No oral evidence was presented.

3. The parties were to file Heads of Argument as follows:

The Applicant on 13 November 2013 and the Respondent on 20 November 2013 and the Applicant’s reply (if any) on 25 November 2013.
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4. Due to the Applicant’s attorney moving offices, the parties then filed their Heads of Argument as follows:-

The Applicant on 20 November 2013 and the Respondent on 30 November 2013.

THE ISSUE TO BE DECIDED:

5.1 Whether or not the Applicant’s alleged transfer was in accordance with the provisions of the Employment of Educators Act 76 of 1998 as amended, in particular Section 8 thereof and Collective Agreement 2/2003 and thus amounting to an Unfair Labour Practice as contemplated in section 186(2) of the LRA

5.2 Whether or not the Respondent’s conduct as afore mentioned amounted to a demotion of the Applicant as provided in section 186(2) of the LRA.

SURVEY OF THE ARGUMENT:

APPLICANT’S CASE:

6. Facts:

Applicant was employed as a Principal at Makhalanyane Intermediate School.

On 3 December 2012 Applicant was found guilty of misconduct in terms of Section 18(3) of the Employment of Educators Act 76 of 1998 as amended. On 13 February 2013 he was sanctioned to 3 (three) months suspension without salary and a demotion by one salary level, with effect from 1 March 2013 to 31 May 2013. He served the sanction.

6.1 On 24th July 2013 Applicant was, via a letter from the District Director, informed that approval has been granted in terms of the Employment of Educators Act 1998 for his transfer from Makhalanyane Intermediate School to Jwala Boholo Primary School with effect from 25th July 2013. The post, to which Applicant was transferred at Jwala Boholo Primary School, is of a lower post level than the post from which he was transferred at Makhalanyane Intermediate School. Applicant clearly indicated that he acknowledged receipt of the letter but that he did not accept the placement. He further indicated that he will accept a post at Thejane Primary School.

6.2 Applicant never applied for the transfer, was never consulted thereto, was never provided with reasons thereto and as far as his knowledge is concern, the governing body of Makhalanyane Intermediate School was never requested to make a recommendation for his transfer. Applicant never consented in writing to any transfer which may have an adverse effect on his salary or any condition of service. Applicant’s transfer was not of a temporarily nature or for reasons relating to Respondent’s operational requirements.

6.3 In terms of Educational Institution Vacancy List 3 of 2013 of which the closing date for applications for vacant posts was 9 May 2013,it does not refer to a vacancy at Jwala Boholo Primary School. However, in the same list, a vacancy for a Principal is advertised at Makhalanyane Intermediate School, the same school from where Applicant was later on transferred. No vacancy at Jwala Boholo Primary School was advertised in that particular list.

6.4 In terms of the Final Staff Establishments: Educators: 2014 dated 10 September 2013, Ms A Maduna is the principal of Jwala Boholo Primary School. This establishment was effective from 1 January 2013. Ms Maduna is still the principal and there is nothing that indicates the contrary.

6.5 In terms of Educational Institution Vacancy List 4 of 2013 of which the closing date for applications for vacant posts was 27 June 2013, a vacancy for a principal at Thejane Primary School, was advertised. This is the same school Applicant was willing to be transferred to. On this list also, no mention was made of any vacancies at Jwala Boholo Primary School.

6.6 Applicant is suffering from a lung disease which is worsening by cold weather conditions. These conditions are present at the environment where the Jwala Boholo Primary School is located. A medical practitioner on a number of times, recommended that Applicant be deployed to a place outside this environment. However, these recommendations were turned down.

6.7 Applicant referred a dispute to the Education Labour Relations Council for resolution through conciliation. The dispute remains unresolved. On 26 September 2013 the Panellist, Mr J Mthembu issued a certificate to that effect.

6.8 Applicant now approaches the Education Labour Relations Council to arbitrate the matter.

Legislation and policies:
7.1 Employment of Educators Act 76 of 1998 as amended:

Section 8 Transfer of Educators, provides:

Subject to the provisions of this Chapter –

the Director-General or the Head of Department may transfer any educator in the service of the relevant department to any post or position in any other department of State with the prior approval of the person in that other department of State having the power to appoint or to transfer and with the consent of that educator; and

the Director-General may transfer any educator in the service of the department of Education to any other post in the Department; and

the Head of Department may transfer any educator in the service of the provincial department of Education to any other post in that department.

Subject to sub-sections (4) and (5), no transfer to any post on the educator establishment of a public school or a further education and training institution shall be made unless the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, has been obtained.

The salary and other conditions of service of an educator may not be adversely affected by a transfer under this section without the consent in writing of that educator, except in accordance with the provisions of Chapter 5.

A recommendation contemplated in sub-section (2) shall be made within 2 (two) months from the date on which a Governing Body or Council was requested to make a recommendation, failing which the Head of Department may make a transfer without such recommendation.

The Head of Department may, without a recommendation contemplated in sub-section (2), transfer an educator temporarily for a stated period from a post at a public school to a post at another public school.

An educator referred to in sub-section (5) shall return to his or her previous post at the end of the period contemplated in that section.

…

7.2 Collective Agreement Number 2 of 2003

Paragraph 2.4 deals with the procedure to be followed when it is established that educators are in addition to the allocated establishment of a particular school.

2.4(d)(iii) provide:

“An educator who has been identified as in addition shall be so informed, in writing, by the provincial education department concerned.”

2.4(g) provide:

“In terms of Section 6 or Section 8 of the Employment of Educators Act (1998) the Head of a Provincial Department may transfer an educator who is in addition to another post in the department that matches his/her skills and experience.”

7.3 Labour Relations Act 66 of 1995 as amended

Section 186(2)(a) defined an “unfair labour practice ‘as: “any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee.”

7.4 Basic Conditions of Employment Act 75 of 1997 as amended

Section 7 Regulation of working time, provides:

“Every employer must regulate the working time of each employee –

in accordance with the provisions of any Act governing occupational health and safety;

with due regard to the health and safety of employees;

with due regard to the Code of Good Practice on the Regulation of Working Time issued under Section 87(1)(a); and

with due regard to the family responsibilities of employees.”

7.5 Code of Good Practice on the arrangement of working time issued in terms of Section 87(1)(a) of the Basic Conditions of Employment Act 75 of 1997 as amended

Item 9 working environment provide:

“Employers should regularly assess whether the work environment, in particular the lighting and heating, are adequate for the health, safety and physical comfort of employees, particularly night workers.”

8. Application of the law on the facts:

8.1 Applicant served in a post as principal at an intermediate school, namely, Makhalanyane Intermediate School. He was transferred to a primary school, namely, Jwala Boholo School. It is common cause that an intermediate school is of higher level of standard than a primary school. In this regard it is clear that Applicant was demoted to a lower employment standard and level. Besides his salary, he was, due to the transfer, also deprived of his status as principal of an intermediate school. The actions instituted against Applicant for transferring him to a school of lower standards, not only constitutes an unfair labour practice in terms of Section 186(2) of the Labour Relations Act 66 of 1995 but is also a violation of Section 8(3) of the Employment of Educators Act 76 of 1998 –

“The salary and other conditions of service of an educator may not be adversely affected by a transfer under this section without the consent in writing of that educator…”

9. There were no reasons for Respondent to transfer Applicant from Makhalanyane Intermediate School. A vacancy at Makhalanyane Intermediate School exists. There were no vacancies at Jwala Boholo Primary School. In fact, Jwala Boholo Primary School has a principal. Although two posts were vacant at this school, the vacancies were for educators of lower salary levels than the salary level of Applicant. If Respondent deployed him in a post at a lower salary level, then again, these actions are demotion and thus, constitute an unfair labour practice.

Although Makhalanyane Intermediate School is governed by a Governing Body, Applicant was transferred without the recommendation of the said Governing Body, which is contrary to the provisions of Section 8(2) of the Employment of Educators Act 76 of 1998.

Applicant was never informed of Respondent’s intention to transfer him from Makhalanyane Intermediate School, contrary to paragraph 2.4(d)(iii) of Collective Agreement number 2 of 2003. He was never granted the opportunity to make any representations whatsoever in respect of his transfer. He was never assessed in respect of his health conditions as required by item 9 in the Code of Good Practice on the arrangement of working time issued in terms of Section 87(1)(a) of the Basic Conditions of Employment Act 75 of 1997.

The arbitrator is called upon to take note of the compelling nature of the wording “shall be” in sections, particularly Section 8 of the Employment of Educators Act 76 of 1998 and Collective Agreement 2 of 2003. In this regard it must be clear that the intention of the Legislator was to enforce these provisions, thus the words “shall be” in the respective texts.

Applicant adhered to the instruction to be transferred to Jwala Boholo Primary School. Although he did not accept the transfer, he stayed loyal to Respondent and exercised at the functions required from him. He even attempt to assist Respondent in this matter by indicating that he is prepared to be transferred to a vacant post at Thejane Primary School. However, Respondent failed to pay attention to Applicant’s proposals. If Respondent did pay attention then he failed to pay sufficient attention in settling the matter.

The Arbitrator is requested to make the following award:

14.1 Applicant be re-instated in the post of principal at Makhalanyane Intermediate School, alternatively:

14.1.1 Transfer to Thejane Primary School.

14.2 Compensation for any loss in salary as from 1 June 2013; and

14.3 The transfer to Jwala Boholo Primary School be set aside.

RESPONDENT’S CASE:

The referral form in terms of which this matter was referred cites this dispute as one of Unfair Labour Practice Section 186(2) and Unilateral Change to Terms and Conditions of Employment.

During a conciliation meeting held on 26 September 2013 at Bethlehem, a certificate of non-resolution was issued in terms of which the dispute is classified as an Unfair Labour Practice.

From the outset, it should be noted that a transfer is not classified under Section 186(2). The arguments from Applicant seem to be addressing a demotion and a transfer on the other.

It is untrue that Applicant has been demoted with one salary level. Pursuant to a disciplinary hearing, Applicant was suspended for 3 (three) months without pay. Never at any stage was Applicant demoted. Applicant since his promotion to a Principal post has always been on post level 3, during his suspension he was on post level 3 and he is still on post level 3 as a Principal.

As outlined above, Applicant is still a Principal on the same post level and salary level as other Principals. The fact that Applicant has been transferred to Jwala Boholo Primary School does not change his salary level, what changed was the institution and premises thereof. We call on Applicant to prove this allegation about being demoted by one salary level.

It is conceded that Applicant has been transferred from Makhalanyane Intermediate School to Jwala Boholo Primary School. It is however denied that Applicant was never consulted.

In a consultation meeting held between Respondent and Applicant, Applicant was made aware about the fact that the School Governing Body of Makhalanyane Intermediate School was strongly against the fact that after a Court battle between Applicant and the SGB, Applicant should return to Makhalanyane Intermediate School, otherwise parents and the community will not accept him in this school.

Applicant consented to a transfer owing to his personal safety and the fact that he was aware that the Court battle had impacted on their relationship adversely.

Applicant then reported briefly at the District Office, until a school on the same post and salary level was found for him. Respondent negotiated with the SGB of Thejane Primary School as a matter of procedure and the SGB refused to accept the Applicant.

Applicant proceeded to negotiate with Jwala Boholo Primary School in terms of the same procedure. The SGB of Jwala Boholo Primary School accepted the Applicant hence he was placed in this school.

The placement of Applicant at Jwala Boholo Primary School was based on operational requirements.

The core business of Respondent is teaching and learning. Any factor that will have a negative bearing on teaching and learning is intolerable. As such the brawl between Applicant and the SGB of Makhalanyane Intermediate School would have impacted negatively on the delivery of teaching and learning.

Applicant is according to the records a Principal at Jwala Boholo Primary School.

Paragraphs 2 and 3 of Applicant’s Heads elaborate on a transfer.

Accordingly, the Respondent reverts to the preliminary point raised by it during conciliation held on 26 September 2013 that a transfer is not classified under unfair labour practice.

Accordingly, the Respondent reiterates that the ELRC does not have jurisdiction to adjudicate this matter as one of Section 186(2) of the Labour Relations Act.

The submissions made by Applicant appear to me as facts that require evidence in order to determine exactly what the case of the Applicant is.

Applicant has failed to prove allegations of a demotion and accordingly all arguments relating to transfer cannot be determined by the ELRC for lack of jurisdiction.

Wherefore the Arbitrator should rule as follows:

that the Applicant carries the burden of proof to support allegations by evidence;

that Applicant has failed to make up a case for demotion;

That the ELRC lacks jurisdiction to determine a matter of transfer as it is not categorized as such under Section 186(2) of the LRA.

ANALYSIS OF THE ARGUMENT:

I concur with the Respondent’s submission that the Applicant carries the burden of proof to sustain his allegations.

It is trite that the Applicant referred an Unfair Labour Practice dispute in terms of Section 186(2) of the Labour Relations Act (“the LRA”).

However, the thrust of the Applicant’s submissions relate to transfer and/or demotion.

In Van der Riet v Leisure Net t/a Health and Racquet Clubs [1907] 6 BLLR 721 (LAC) the Labour Appeal Court held that failure by the employer to consult with an employee prior to his demotion constituted an unfair labour practice therefore demotion should always be preceded by consultation.

However, on the submissions submitted by the Respondent the Applicant was not demoted.

As we speak the Applicant is still on a post level 3 and holds the rank of a Principal so nothing regarding his post level and rank has changed so as to amount to a demotion.

What has changed is the Applicant’s workplace and for that matter the Applicant himself negotiated that he be placed at that workplace.

The issue of consultation also arise where demotion arises from an employer’s operational requirements.

It is indeed so that the relationship between the Applicant and the SGB of Makhalanyane Intermediate School had soured. Therefore based on operational requirements the Respondent had to place the Applicant in another school.

The fact that the Applicant himself negotiated his own placement in such other school, demonstrate that consultation with him must have taken place.

I submit that the Applicant has failed to discharge the burden of proof on him that the Respondent committed an unfair labour practice by demoting him.I accordingly find the Respondent’s version to be the probable one

In respect of the second issue raised by the Applicant of a transfer, I concur with the Respondent’s submission that that issue does not fall within the ambit of Section 182(2) of the LRA as an Unfair Labour Practice.

The Applicant therefore incorrectly referred the issue of a transfer as an Unfair Labour Practice as provided for in Section 186(2) of the LRA.

Lastly, I cannot find that the Respondent transgressed the LRA, Employment of Education Act or the provisions of Collective Agreement 21 of 2003 nor the Basic Conditions of Employment Act

AWARD:

The Applicant has failed to prove that the Respondent committed an Unfair Labour Practice by demoting him

The Council further lacks jurisdiction to adjudicate the issue of the transfer referred by the Applicant under the auspices of Section 182(2) of the LRA as it does not fall within the ambit of this section

The Applicant’s case is accordingly dismissed without an order for costs.

_____________________

JEROME MTHEMBU

ELRC PANELIST