IN THE ELRC ARBITRATION

BETWEEN:

Mr. PA SELOANE                                                                                          “the Applicant”

and

DEPARTMENT OF EDUCATION – LIMPOPO PROVINCE                          “the Respondent”

Case Number:  PSES 342 – 10/11 LP         

Date of arbitration:  31 March 2011

Date of award:  14 April 2011       

COEN HAVENGA

ELRC Arbitrator

Education Labour Relations Council

ELRC Building

261 West Avenue

Centurion

Tel:            012 663 0452

Fax:           012 643 1601

E-mail:      gen.sec@elrc.co.za

Website:  www.elrc.org.za

1              DETAILS OF HEARING AND REPRESENTATION

The hearing of the arbitration took place on 31 March 2011 at the offices of the Limpopo Department of Education in Polokwane. 

The Applicant is Mr. PA Seloane represented by Mr. J Stemmett, a legal practitioner.  The Respondent is the Department of Education, Limpopo Province, represented by Mr. T Mahasha.    

2              TERMS OF REFERENCE AND ISSUES TO BE DECIDED

The arbitration takes place in terms of the referral of the dispute by the Applicant.  A pre – arbitration meeting was held by the parties.  The signed minutes of the meeting forms part of the record and is reflected in pages 90 to 93 of the Applicant’s bundle of documents, Bundle A.  The following relevant issues were, inter alia, agreed upon as being common cause between the parties:

·         The Applicant acted as the Departmental Head at Millennium Combined School from January 2007 to June 2008, and was paid for the period.

·         In 2007 the post was advertised under post number 34 (languages).

·         The Applicant applied for the post number 34.

The parties agreed on the following at the arbitration hearing:

a)     To empower the arbitrator to determine whether the removal of the Applicant from the position of Acting HOD Languages at Millennium Combined School constitutes an unfair labour practice;

b)     To empower the arbitrator to determine whether the Respondent committed an unfair labour practice relating to promotion against the Applicant, and if so, what relief is to be awarded;

c)     To empower the arbitrator to decide whether the Applicant should be paid an acting allowance from January 2009 until the dispute is resolved.

d)     To empower the arbitrator to determine the dispute in a manner which he deems fair and equitable.

• The Applicant submitted documents contained in Bundle A, page 1 to 93.  The Respondent submitted documents contained in Bundle B, page 1 to 27.   The documents contained in the bundles were accepted by the parties, and form part of the record.

3              OPENING STATEMENTS

APPLICANT submitted the following opening statement:

·         The Applicant referred to the contents of page 1 to 3 of Bundle A.

·         The relief sought is reflected in paragraph 27 on page 3 of Bundle A.

RESPONDENT submitted the following opening statement:

·         It is common cause that the post 34 was advertised as HOD Languages initially, and was then withdrawn by the Respondent.

·         The reason was not to punish the Applicant, but it was done in the interest of the learners in terms of section 28 of the Constitution.

·         When the post was advertised initially The Respondent did not foresee the need for Maths and Science at the school.  The post was then withdrawn taking into account the curriculum needs of the school. 

·         The Applicant acted in post 20, not 34.

·         In terms of section 5(3) of the Employment of Educators Act, no. 76 of 1998 (EEA), the Respondent has the power to convert a post.

·         There was no arbitrary action by the Respondent.

4              SUMMARY OF EVIDENCE

5              ANALYSIS OF EVIDENCE AND ARGUMENT

I have 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 provisions of Collective Agreement no. 1 of 2008, Guidelines for Sifting, Short listing and Interview Procedures, the provisions of section 28 of the Constitution of the Republic of South Africa, no. 108 of 1996 as well as the case law relevant to the nature of this dispute.  I have considered the arguments of the parties as well as the documentary evidence submitted.

This dispute concerns the removal of the Applicant from the post of Acting HOD Languages at Millennium Combined School, and whether it constitutes an unfair labour practice relating to promotion, and if so, what relief is to be granted, as well as whether the Applicant is entitled to the payment of an acting allowance from January 2009 or not.  

Section 186 (2) of the Labour Relations Act, no. 66 of 1995, reads as follows:

“(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –

(a)   unfair conduct by the employer relating to the promotion ………… of an employee….” .

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.

An unfair labour practice relating to promotion as defined in section 186(2) of the LRA consists of at least the following elements namely:

·                     An act or omission;

·                     Constituting  a labour practice;

·                     Between an employer and employee, committed by the employer;

·                     Involving unfair conduct;

·                     Relating to promotion.

I have to decide whether the Respondent acted fairly when Respondent changed the curriculum requirements for post 34 which resulted in the Applicant being removed from his acting position as HOD Languages.  In this respect I have regard to the Constitutional Court’s examination of the concept of fairness in the matter of Sidumo and Another v Rustenburg Platinum Mines and others (2007). 

Fairness depends on the specific circumstances of the case and implies fairness to both employer and employee.  Essentially the arbitrator should not show bias in favour of either – see National Union of Metalworkers of SA v Vetsak Co-operative Ltd & others 1996 (4) SA 577 (A); National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC).  Therefore to demonstrate unfairness relating to promotion, the Applicant needs to show that the Respondent being the employer, in changing the curriculum requirements of post 34 from HOD Languages to Maths and Science, which resulted in the Applicant being removed from the post he was acting in, the Respondent acted in a manner which would ordinarily allow a Court of law to intervene in the decision of a functionary by proving for example that the employer had acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or unfairly discriminated.  Refer to inter alia the arbitration award of Van Tonder D in Shroeder v Western Cape Education Department & Another PSES 64-09/10WC 2009; Ndlovu v CCMA & others (2000) 21 ILJ 1653 (LC).  

It is common cause that the Applicant was not short listed at first when the post was advertised in its original description.  The purpose of clause 7.5 of Collective Agreement 1/2008 is to ensure that a person who did act for 12 or more continuous months and meet the minimum requirements is indeed short listed.  The evidence shows that the Applicant indeed acted for 12 or more continuous months and as such was entitled to be shortlisted as he also met the minimum requirements of the post.  This is substantiated by the fact that when he lodged a grievance initially based on the failure to short list him the circuit management ordered the process to be revisited.  He was again not short listed despite the fact he was entitled to be short listed. 

It was minuted by the parties in the pre-arbitration meeting that the Applicant acted from January 2007 to June 2008 as HOD in the post that was advertised, post 34.  It appears strange that the Respondent now argues that the Applicant in fact applied for post 20, as it is reflected on the application form.  The question that begs answer is why was it not raised at that stage or any other stage during the grievance correspondence of the Applicant?  Only the Applicant presented evidence, and testified that he was all along under the impression that he applied for post 34, the post in which he acted.  Considering his qualifications and the fact that post 20 was a primary level post, the balance of probabilities favour the Applicant.  His explanation that the detail regarding the post number was completed by the principal is uncontested and reasonable.

I am satisfied and find that the Applicant in fact applied for post 34, the post in which he acted for a period of more than 12 months continuously.  I find that he was indeed entitled to be short listed for the post. 

It is not in dispute that the post 34 which Applicant applied for was changed or converted by the Respondent in terms of its curriculum description from Languages to Maths and Science, which resulted in the removal of the Applicant from the post he was acting in. 

Section 5(3) of the EEA indeed allows the employer to convert a post and the Respondent relies upon this provision to justify its actions.  Furthermore the Respondent relies upon the provisions of section 28 of the Constitution of the Republic of South Africa, no. 108 of 1996 to provide justification.   Section 28 indeed provides that a child’s best interests are of paramount importance in every matter concerning the child. 

It is also so that the Respondent retains the managerial prerogative to appoint or not, and similarly decide on the nature or curriculum requirements of posts.  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 when dealing with decisions to promote where discrimination on prohibited grounds is not alleged, as in this case.  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.   

However, in this matter I am of the opinion it would be justified to interfere with the exercise of management’s discretion.  The emphasis is not on the correctness of the employer’s decision, but on the reasonableness of the decision.  The way the decision was taken warrants the inference that the Respondent failed to properly apply its mind to the relevant issues and such failure resulted in the decision being arrived at arbitrarily or capriciously.  The decision to change the post curriculum description and requirements that resulted in the exclusion of the Applicant and his subsequent removal from acting in the post was unreasonable to the extent that it warrants interference.  The Respondent presented no evidence to substantiate the reasoning for supposedly acting in the interest of the learners.  Respondent has no obligation in terms of section 5(3) of the EEA to consult before converting a post, but common sense dictates that the school management team would surely be in the best position to express a valid opinion in respect of what curriculum needs are in the best interests of the learners at that specific school.  The fact that the Respondent decided not to consult makes its decision doubtful.  There is no evidence before me to justify why it was necessary in these specific circumstances to change the description from Languages to Maths and Science, even more so considering the fact that there was a dispute around post 34.  The evidence of the Applicant also show that there were other available vacant HOD posts that could have been used if the Respondent had a genuine belief that such change was necessary.  The Respondent presented no evidence to dispute this.  The Respondent could have satisfied the provisions of section 28 of the Constitution equally well if not better by using another vacant HOD post for Maths and Science together with the HOD Languages post that already was advertised, and in that manner refrained from infringing upon the rights of the Applicant in an arbitrary manner.  The Respondent could have obtained the same goal justifiably.     

I am satisfied that the Respondent did commit an unfair labour practice relating to promotion as intended in Section 186(2)(a) of the LRA when Respondent changed the curriculum requirements of post 34 which resulted in the removal of the Applicant from the post of acting HOD Languages.  I find that the Respondent acted act irrationally, capriciously or arbitrarily in this respect. 

The Applicant claims that he should be paid an acting allowance from January 2009 until the dispute is resolved.  I am however not convinced that I am in a position to award the payment of the requested acting allowance for the period mentioned.  The current suspension of the Applicant which forms the basis of a dispute in which an outcome is pending, would have a direct bearing this issue.

I now need to consider what the appropriate relief would be for the unfair labour practice.  Section 193(4) of the LRA provides that an arbitrator may determine any unfair labour practice dispute on terms that the arbitrator deems reasonable, which may include (but is not limited to) ordering reinstatement, re-employment or compensation.  Section 138(9) of the LRA provides that an arbitrator may make any appropriate arbitration award including, but not limited to an award that gives effect to the provisions and primary objects of the LRA or an award that includes, or is in the form of, a declatory order.