PRESENTATION TO THE PORTFOLIO COMMITTEE ON EDUCATION (NATIONAL ASSEMBLY) ON EDUCATION LAWS AMENDMENT BILL 2000 : 17 AUGUST 2000

- Mr H Hendricks, Executive Director, NAPTOSA -

  1. INTRODUCTION AND GENERAL COMMENTS

1.1 The opportunity afforded NAPTOSA to comment on the proposed Education Laws Amendment Bill, is highly appreciated. As this Bill deals mainly with amendments to the Employment of Educators Act, 1998, our comments will also concentrate on the plight of educators.

1.2 NAPTOSA shares the concerns about the quality of education in South Africa and the symptoms of a poor system, inter alia

We will therefore naturally support any effort to improve education in South Africa and all measures to ensure that educators meet the requirements of their profession and the expectations of all the citizens in our country.

1.3 NAPTOSA is, however, not convinced that unilateral and narrowly focused changes in the conditions of employment of educators and legislation with a negative effect on the status of educators and with the possibility of causing widespread unhappiness amongst teachers would help us in any way to improve education in South Africa.

1.4 Our comments should therefore be seen in the light of a teacher union which is truly concerned

1.5 NAPTOSA is in fact concerned that the unique nature of the teaching profession and the conditions of employment of educators have not received the necessary attention. The very nature of some of the regulatory measures could negatively affect the relationship of trust between the State as main employer and educators, and could hamper the promotion of professionalism.

1.6 It is erroneous to assume that the definitions of misconduct, as contained in amended Section 18, as well as the procedures contained in the schedules, should be identical to those in the rest of the public service.

1.7 It is also interesting to note that, whereas certain processes applicable to the public service are the result of negotiations in the PSCBC, the decision has been taken to make the processes and procedures of discipline for educators part of the legislative process. Yet the argument seems to be made for a similarity of process. It should also be noted that the original intention of a previous amendment to the EEA was to arrive at a collective agreement in the ELRC for the disciplinary process. In the PSCBC the disciplinary code is in the form of a resolution, but for educators the State wants to gazette it so that it becomes an Act.

1.8 It is, however, recognised that some of the proposed changes can improve education in practice, can prevent uncertainties and can rectify current shortcomings in the Acts. Further comments are therefore made only on sections where either concern is raised or an alteration is suggested.

  1. COMMENT ON AMENDMENTS TO ACT 84 OF 1999
  2. 2.1 The amendment to section 23 of SASA by the addition of the proposed subsection (13) appears to be simplistic and may lead to problems of interpretation. The amendment does not indicate if there is a maximum number of two co-opted members under this amendment (13). Furthermore, it does not indicate if the ‘racial composition’ assumes any definition of race (eg. Does this refer to ‘black’ and ‘white’ only?). It is suggested that the amendment be reworded to indicate a more precise procedure. It is further suggested that the final words of the amendment be altered to read ". . . community that is not sufficiently represented".

    2.2 The parents of the school belonging to the identified group should have some say in who is co-opted to represent them. The principle of democracy should be employed. This would obviate problems that might arise at a later stage if the group does not recognise the credibility of the persons co-opted to assume representation for them. However, we cannot support elections for a governing body along racial lines.

  3. COMMENT ON AMENDMENTS TO ACT 76 OF 1998 (EEA)

3.1 The amendment of Section 6 of the EEA by the addition of paragraph (e) to subsection (3) is problematic.

3.1.1 The initial appointment of all staff by a head of department is not supported. The principal of a school (as well as other staff) should have the support of the school community. Some mechanism should be sought to ensure that the views of the community are obtained. The power of a governing body to recommend appointments is very important and should be accommodated.

3.1.2 Although the amendment indicates that the initial appointment by the head of education should be limited to a situation where the governing body has not yet been elected it may be misinterpreted to indicate that all initial appointments at a new public school or a further education and training institution must be made by the head of education. If the must could be changed to may, the head of department may wait with certain appointments until the governing body can assist in this regard.

3.2 The proposed section 17(1) under serious misconduct, instructs dismissal where an educator is found guilty of one of these serious offences. Only one sanction is permitted: dismissal. We cannot support such a proposal as it denies the possibility of mitigating circumstances. It is also assumed that the provision of item 8(b) in Schedule 2, which allows for the presiding officer to suspend the dismissal under certain circumstances, is not applicable in this case. NAPTOSA proposes that the proposed section 17(1) be altered to read "An educator who commits serious misconduct shall be dismissed, unless sufficient extenuating circumstances are found by the presiding officer, if the educator is found guilty of an offence.

3.3 The proposed new Section 18 contains the list of what constitutes misconduct and appears to attempt to be as comprehensive as possible. NAPTOSA questions whether this approach is necessary and practical.

3.3.1 Section 18(1)(i) should be altered to indicate that the order or instruction should be given by a person legally entitled to give such order or instruction.

3.3.2 Section 18(1)(k) should be limited to unfair discrimination engaged in towards learners, parents or fellow employees while on duty.

3.3.3 Section 18(1)(o) has no place in such a list and should be deleted.

3.4 Section 18(2) does not indicate that if an educator is alleged to have committed some form of misconduct, the employer should institute an investigation before proceeding with disciplinary action. This provision is also not contained in Schedule 2. It is strongly advised that provision be made for investigations to take place. This will ensure that evidence of wrongdoing is gathered and furthermore that any petty charges are avoided.

3.4 The provision for an appeal procedure in Section 25 is strongly supported. It needs to be transparent and separated from the administrative functioning of the Department of Education.

3.5 Schedule 1 contains no reference to a measuring instrument to assess capacity or incapacity. Reference could be made to such a document and that it should be the product of a collective agreement in the ELRC.

3.6 With reference to incapacity, item 3.3(c)(iii) constitutes an invasion of the eductor’s privacy and the full details should be released only with the written authorisation of the educator concerned. For example if the educator suffers from HIV/AIDS, this information should remain confidential. The only part of the report that is of any concern to the employer is whether the educator is able to perform his or her duties at that time.

3.7 The provisions of Schedule 2 should be amended to provide for the possibility of a preliminary enquiry or investigation when a charge of misconduct is being considered, and which may lead to a disciplinary hearing contemplated in Section 5. The current provisions should be satisfactory for this purpose.


3.8 In Schedule 2, items 2(c) and 4 should indicate clearly that the prerogative of the employer is limited to the form of the disciplinary procedure (eg. counseling, warning, charging, etc) and not to the procedure undertaken during a specific disciplinary hearing where the procedure is prescribed in the Act.

3.9 Item 4(1)(a) in Schedule 2 should be amended to indicate that "the employer may delegate . . ." and not "shall". This allows for the option by the employer to decide the appropriate level, if at all, for delegating these functions.

3.10 The requirement in item 4 (6)(b)(i) of Schedule 2 that the educator’s trade union representative be based at the same institution (or, presumably office) should be altered to allow for any representative of the educator’s trade union. There are frequently situations where the interests of the educator and justice are best served by permitting another trade union representative or official to be present.

3.11 The lack of provision for an appeal process against a written warning or a final warning [4 (6)(c)(iii) and (iv)] is not acceptable (see item 4 (6)(d) of Schedule 2). Provision must be made for an appeal to be lodged with the superior of the person who issues the warning.

3.12 The time frame provided for in item 5(a), read together with the stipulation in 5(b)(iii) is unacceptable. The requirement in 5(b)(iii) should be amended to read: "the date that the registered letter was received by the educator as indicated by the post office".

3.13 General comments on the Procedure for a Disciplinary Hearing in Schedule 2:

3.13.1 The use of only a presiding officer appointed by the employer is of concern, particularly as the current process allows for a tribunal, one member of whom is recommended by the educator or his/her trade union.

3.13.2 The presiding officer has been given the power to decide about the guilt of the educator as well as the sanction. This is also of concern, since the Schedule does not lay down any requirements for the appointment of the officer other than that he/she shall be appointed by the employer. These concerns need to be addressed to ensure that the process is fair and transparent and to obviate the lodging of a large number of appeals and disputes.

3.14 Item 9 regarding Appeals in Schedule 2, should provide for the presiding officer to inform the educator of his rights to appeal and to issue Form E to him/her.

3.15 It is unrealistic to expect the educator to supply a copy of the record of the hearing when submitting Form E: Notice of Appeal as required on the pro forma of the form. In any case, item 9(c) makes provision for the MEC or the Minister, as the case may be, to request the record from the employer. However, the educator must receive a copy of the record to enable him/her to prepare his/her appeal, and this should be provided for in item 8 or 9.

3.16 Item 9(f) allows the employee to appeal to the Public Service Commission. It is presumed that this is a second appeal and an appeal against the outcome of the first appeal to the MEC or Minister.

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