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Transfer was ‘imposed’ on deputy principal


“An order of compensation, as requested, cannot be made in a dispute of this nature, as such an order would be ultra vires.”

THE EDUCATION Labour Relations Council (ELRC) has ruled that the transfer of the deputy principal of Homevale Secondary School, Bertie Powers, to Roodepan Primary School was not in compliance with the Employment of Educators Act.

The ELRC ordered the Department of Education last month to start the process afresh, after the matter was referred for arbitration in May last year.

Powers was instructed to report to Roodepan Primary School on April 15, 2019, where he was to be employed in the same position, as deputy principal, and was entitled to receive the same salary.

Powers sought remuneration equivalent to 12 months’ salary in compensation for emotional pain and suffering.

He argued that the transfer was “imposed unfairly” and without consultation.

He added that the transfer was in breach of the collective agreement and that it should be set aside.

According to the Department of Education, Powers was transferred due to “operational reasons and not operational requirements due to his role in undermining the newly-appointed principal at Homevale Secondary School”.

It explained that operational requirements included changes to pupil enrolment, the curriculum, grading or classification of the institution, merging or closing of an institution and or financial constraints.

His transfer was supposed to be “of a temporary nature until the end of 2019” and was described to be “beneficial to his career”.

The department indicated that Powers was not part of the staff establishment at Roodepan Primary School but “additional to it”.

The ELRC panellist, Minette van der Merwe, rejected the reason provided by the department for the transfer.

“If the collective agreement intended for operational reasons to be interpreted differently to operational requirements, in the context of the document, it would have made specific provision therefore.”

She could not agree that the transfer could be made as an addition to the staff complement at Roodepan Primary School.

“Evidence was not led that Powers was declared in addition at Homevale Secondary School and as such I accept that he was part of the normal staff establishment.”

Van der Merwe added that the transfer letter did not specify the period of the transfer and when Powers would return to his post at Homevale Secondary School.

She stated that the transfer letter, dated April 11, 2019, failed to provide reasons for the transfer in compliance with the collective agreement.

“The letter fails to specify the fixed period to which the transfer was linked. Thus Powers could not have reported to Roodepan Primary School, whilst clarity was being sought on the period of the transfer. It cannot be said that he unreasonably refused to transfer to Roodepan Primary School as the Department of Education failed to provide him with a valid reason as well as specifics of the transfer.”

Van der Merwe pointed out that complaints from colleagues did not justify the transfer of an employee.

She said that Powers was not provided with a reasonable opportunity to make representations or object to his transfer.

“After being informed of the decision to transfer on April 11, 2019, he was required to report to Roodepan Primary School on April 15, 2019, in response to a concern raised by Powers regarding the school of transfer.”

She believed that the transfer was “imposed”, where sufficient notice had not been given of the intended transfer.

Van der Merwe was not able to grant a cost order for pain and suffering.

“An order of compensation, as requested, cannot be made in a dispute of this nature, as such an order would be ultra vires.”

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