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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

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