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[2017] ZALCPE 2
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Mendu v MEC, Department of Education Eastern Cape Province and Others (P175/2015) [2017] ZALCPE 2 (31 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: P175/2015
BULELWA
MENDU
Applicant
And
MEC,
DEPARTMENT OF EDUCATION-
EASTERN
CAPE PROVINCE
First Respondent
THE
HEAD OF DEPARTMENT, DEPARTMENT OF
EDUCATION,
EASTERN
CAPE
Second Respondent
THE
MINISTER OF BASIC
EDUCATION
Third Respondent
THE
DIRECTOR-GENERAL, DEPARTMENT
OF
BASIC
EDUCATION
Fourth Respondent
Heard:
04 March 2016
Delivered:
31 January 2017
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The
Applicant approached the Court to seek mandatory relief, directing
the Respondents to consider a grievance she had instituted
on 13
February 2014 in respect of an incident which occurred earlier on 5
February 2014. The Respondents opposed the application.
[2]
The
background to the application is as follows;
2.1
The Applicant is an Educator at Newell High School, Port Elizabeth.
She had filed a grievance
with the Department following upon what she
considered to be victimization, humiliation, intimidation, ridicule,
bullying and abuse
at the hands of her superior, one Mrs Mdangayi;
2.2
She had followed her grievance with letters, and referred the matter
to the Second Respondent
directly. Despite further letters through
her attorneys of record, she had not received any response from the
Department, and it
was in the light of these factors that sought the
intervention of the Court, as she contended that Mdangayi had
continued to insult
and demean her;
2.3
The Principal of the school had not taken any action despite the
matter being reported.
She had also addressed a letter to Mdangayi
seeking to resolve the matter which she had ignored. She also wrote a
letter to her
superior, the Education Development Officer, and
submitted a formal grievance without any response;
2.4
On 29 January 2015, the Department sent her a letter informing her
that she was declared
as excess, and she was to be transferred to
Morningside Senior Secondary School. She had submitted another
grievance in this regard,
which was followed up by correspondence
from her attorneys. However, her grievances remained unattended to.
[3]
Cedric
Andrew Pillay, the Assistant Director (Labour Relations of the
Department, Port Elizabeth, had deposed to the answering affidavit
on
behalf of the First and Second Respondents. He had raised a
preliminary point to the effect the Applicant failed to properly
follow the standard grievance procedure as set out in schedule 1 of
the Public Service Act of 1994 (The PSA), and to that end she
was not
entitled to any relief. It was further contended that based on that
reason, the Court lacked jurisdiction to entertain
the application;
[4]
The
above preliminary point was raised in view of the Applicant having
filed a ‘grievance’ in the form of a letter addressed
by
her to the Circuit Manager and the school, despite being aware that a
formal grievance procedure was to be followed, which included
completing a grievance form as set out in Annexure ‘A’ to
schedule 1 of the PSA;
[5]
On
22 April 2015, the Applicant had completed Part B of the grievance
form, but this was outside of the 90 days from which her complaint
arose. Since there was no agreement between the Applicant and the
Department to extent the 90-day period stipulated in paragraph
3 of
part D of schedule 1 of the PSA. This grievance was therefore out of
time;
[6]
It
was further submitted that even if the Applicant had followed the
correct procedures and adhered to the time limits in lodging
her
grievance, rather than approaching the Court, the Applicant was at
liberty to lodge a grievance with the Public Service Commission,
or
where she had a case of an alleged unfair labour practice, to have
referred a dispute to the Education Labour Relations Bargaining
Council;
[7]
In
addition to the above, it was further submitted that upon receipt of
the Applicant’s reminder of her letter of 13 February
2014,
there were responses thereto, and that she had thereafter absented
herself from school from August 2014 to September 2015,
and thus no
purpose would be served to have further regard to her belated
grievance.
Evaluation:
[8]
In
argument, it was submitted on behalf of the Applicant that the
grievance code as contained in the PSA was not applicable to
Educators, and that the Employment of Educators Act of 1998 (EEA
[1]
)
was applicable. Thus, the EEA in respect of the terms and conditions
of employment of Educators found application in the Respondents’
Personnel Administration Measures (PAM), and Chapter H thereof
contained the grievance code which was applicable to Educators.
[9]
Central
to this dispute is whether it should have been before the court. The
starting point is to examine the applicable procedures
in
circumstances where an Educator has a grievance to be resolved. There
is a dispute in regards to which grievance procedure is
applicable in
the education sector. The Applicant’s contention was that the
applicable procedures are to be found in the
EEA, which provides for
the employment of educators by the State, the regulation of the
conditions of service, discipline, retirement
and discharge of
educators and for matters connected therewith, read together with
Chapter H of the Personnel Administration Measures
(PAM)
[2]
.
[10]
The
PAM, as per its clause 1.1 is applicable to all Educators as defined
in the EEA. In terms of the provisions of Chapter H, and
to the
extent that a written grievance was lodged, the procedure to have
been followed would have entailed it being directed to
the head or
direct supervisor within 90 days, which was done in this case.
Furthermore, a copy of that grievance would then have
been filed with
the relevant office of the provincial department by the head or
supervisor. This was also done in this case. The
provisions are
however silent in circumstances where a grievance is not attended to
at all. However, where a grievant is not satisfied
with the outcome,
a formal dispute must be registered with the Executive Officer of the
Education Labour Relations Council (ELRC)
in terms of the provisions
of that Council.
[11]
As
correctly pointed out on behalf of the Applicant, these procedures do
not prescribe any forms to be used when lodging a grievance,
and thus
the grievance as lodged by her in the manner that she did ordinarily
complied with these provisions. Significant however
in this case is
that to the extent that the grievance was not dealt with, should the
Applicant have approached the Court directly,
or should she rather
have referred the dispute to the Executive Officer of the Education
Labour Relations Council as prescribed
in clause 3.2 of the Code?
[12]
The
answer to the above question is to be found in objectives of PAM
grievance procedure, which are that;
“
The
objective of this grievance procedure is to seek to resolve a
complaint at the personal level as quickly and as to the source
of
the complaint as possible. It is aimed at avoiding a grievance
becoming a dispute. In the case where a grievance cannot be resolved
through this process and is consequently registered as a dispute in
terms of the provisions of the constitution of the Educators
Labour
Relations Council, such registered dispute shall be dealt with in
terms of the dispute resolution procedure as set out in
the said
constitution.”
[13]
In
line with the above, Educators must therefore lodge their grievances
departmentally, and should the Department be unable to resolve
their
grievance, they should lodge a dispute with the ELRC as stipulated in
clause 3.1 (iv) of the PAM. This is irrespective of
whether the
Department made attempts to resolve that grievance or failed to do
so. Accordingly, the Applicant was obliged, in view
of her grievance
not having been attended to departmentally, to have referred it in
accordance with the dispute resolution mechanism
in terms of the
provisions of the Constitution of the ELRC. To that end, there is no
substance in the contention that the Applicant
ought to have dealt
with the grievance in accordance with the provisions of Schedule 1 of
the PSA, nor is there any merit in the
contention that she was
entitled, in view of the grievance not having been attended to
departmentally, to directly approach this
Court. She was obliged to
exhaust any applicable procedures provided in the Constitution of the
ELRC prior to approaching this
Court.
[14]
In
the light of the above conclusions, it follows that this application
ought to be dismissed. Further having had regard to the
requirements
of law and fairness, a cost order in this case is not warranted.
[15]
In
the premises, I make the following order;
Order:
1.
The
Applicant’s application is dismissed;
2.
There
is no order as to costs.
________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. M. Grobler
Instructed
by:
Michael Randell Attorneys
On
behalf of the Respondents:
Adv. GJ
Gajjar
Instructed
by:
State Attorney
[1]
No. 76 OF
1998
[2]
G.N. 222 of
1999 published in Government Gazette No. 19767 dated 18 February
1999, which provides that;
CHAPTER
H - GRIEVANCE PROCEDURE
1.
OBJECTIVE
1.1
The objective of this grievance procedure is to seek to resolve a
complaint
at the personal level as quickly and as close to the
source of the complaint as possible. It is aimed at avoiding a
grievance
becoming a dispute. In the case where a grievance cannot
be resolved through this process and is consequently registered as a
dispute in terms of the provisions of the constitution of the
Education Labour Relations Council, such registered dispute shall
be
dealt with in terms of the dispute resolution procedure as set out
in the said constitution.
2.
DEFINITION
2.1
A grievance is a complaint by an employee or employees affecting the
employment relationship of the person or persons concerned, or where
there is an alleged misinterpretation, or violation of his
or her,
or their rights.
3.
DEALING WITH GRIEVANCES
3.1
Grievances shall be dealt with in the following manner.
(a)
Oral interview
(i)
A sincere attempt should be made to resolve any grievance
by oral
interview between a grievant or grievants and the head of a school
or college (herein after referred to as “the
head”), and
in the case of an educational institution outside a school or
college or the head of a school or college, the
supervisor
(hereinafter referred to as “the supervisor”), before
differences become formalised grievances.
(ii)
During this process no records will be kept of proceedings which
will be without prejudice to either of the parties.
(b)
Formal written grievance: Institutional level, (school/college)
and
departmental level
(i)
A grievant or grievants may lodge a grievance or grievances
with the
head or the supervisor in writing within a reasonable period of
time, but in any event not later than 90 calendar days
following on
the time and date on which the alleged grievance or grievances
occurred. Full details of the nature of the grievance
or grievances
must be relayed to the head or the supervisor, as the case may be.
The grievance or grievances must bear the signature
or signatures of
the grievant or the grievants and a copy thereof shall be filed with
the relevant office of the provincial department
of education by the
head or supervisor, as the case may be, which office shall be
identified by the relevant head of a provincial
department in each
province.
(ii)
The head or the supervisor, as the case may be, shall confer with
the grievant or grievants, and others involved, within 3 working
days of receipt of the formal written grievance in order to
resolve
the grievance. At this meeting the facts shall be presented and
considered and an effort shall be made to resolve the
matter to the
satisfaction of all parties.
(iii)
The head or the supervisor, as the case may be, shall communicate
the outcome to the relevant office of the provincial department of
education within 5 working days of the resolution or non resolution
of a grievance.
(iv)
If an action or lack of an action, or a decision or lack of a
decision,
concerns the head or the supervisor, the grievant or
grievants may refer the matter directly to the regional/district
level in
respect of a school/college and departmental level in
respect of an institution outside a school/college, provided that a
sincere
attempt has been made to resolve the grievance or grievances
in terms of the provisions of paragraph 3 (a) above.
(c)
Regional/district level in respect of a school/college and
departmental
level in respect of an institution outside a
school/college
(i)
If the grievant or grievants is/are not satisfied with the
outcome
referred to in sub-clause (b) above, the grievant or grievants may
refer the matter in writing, by hand or registered
mail, together
with the decision of the head or the supervisor, as the case may be,
to the regional/district head of education
in the case of an
educator at a school/college and in the case of an educator outside
a school/college to the office referred
to in sub-clause (b)(i),
within 5 working days of the parties failing to resolve the
grievance or grievances. A copy of the referral
must be presented to
the head or supervisor, as the case may be, and where applicable, to
the grievant or grievants’ trade
union.
(ii)
The head or the supervisor shall forward his or her comments
together with all relevant information on the grievance or
grievances to the regional/district head or the office referred to
in sub-clause (b)(i), as the case may be, within 5 working days
after receiving the referral mentioned in sub-clause (c)(i) above.
(iii)
The head of the region/district or the head of the relevant
provincial
education department, or his or her delegate in respect
of an educator outside an educational institution, shall within 5
working
days from the date of receipt of all the parties’
referrals, attempt to resolve the grievance or grievances and
communicate
his or her decision in writing to all parties.
(iv)
Should the grievant or grievants not be satisfied with the outcome,
he or she may register a formal dispute with the Executive Officer
of the Education Labour Relations Council (hereinafter referred
to
as the “Council”) in terms of the provisions of the
Council’s constitution.
3.2
A trade union registered with the Council may register a grievance
with
the head or supervisor or the head of a relevant department of
education, as the case may be, on behalf of its members individually
or collectively and represent such member or members during any
stage of this grievance procedure. A non-member or non-members
may
be represented by another employee.
3.3
The parties to a grievance or grievances may by agreement extend the
periods referred to in sub-clauses (b)(i) and (c)(ii) and (iii)
above.