The Durban University of Technology (DUT) has been vindicated in its decision to retrench a senior lecturer because she refused to do a master's degree which the institution insists is a minimum educational requirement for all of its academic staff.
Fatima Begum Sayed Ally Khan took DUT to the labour court, seeking to set aside her retrenchment in August 2021 and the retrospective payment of her salary.
But Durban labour court acting judge Nomawabo Msizi has ruled against her, saying the retrenchment was for “substantively fair reasons” in that she “fell below the level required for the course she wishes to teach”.
In detailing the background facts, Msizi said the amalgamation of the ML Sultan and Natal Technikons into the university required it to enhance its stature and standing. This meant it had to attract the best in staff and students and to upgrade the academic qualifications of its staff.
It had imposed a minimum requirement of a master’s degree, believing that this would “raise the bar” to some staff obtaining doctorates, increasing the research capacity of its staff, which would earn the university a “formidable” reputation to ensure its continuity, competitiveness and attractability to both students and staff.
To achieve this goal, in 2002, the DUT developed a strategic directions policy which encouraged staff to upgrade their qualifications through an incentive programme, including scholarships and bursaries, decreased workload and increased leave days for studying.
Initially, the policy was not stringently applied, but gained momentum as the years went by.
Saleem Kharwa, deputy dean of the faculty of accounting and informatics — where Khan was employed — said in his evidence, that the policy had been fervently driven by the former vice-chancellor of the university and the master's requirement had been regularly discussed at compulsory staff meetings.
With her existing qualifications, he said Khan could not lecture the entire course she was employed to teach in terms of the criteria set down by the Council for Higher Education.
He conceded that when Khan was employed in August 2009 as an auditing and tax lecturer, she did not have the required master's degree and was not a registered chartered accountant, as was stipulated in the advertisement, but said this was because the faculty had struggled to find a suitably qualified person.
“This was not because the strategic requirement was not applicable or abandoned,” he said.
He said that Khan had registered to study for a master’s degree in 2011 but deregistered the same year and reimbursed DUT the money it had paid.
He was perplexed that Khan had sat idle while being acutely aware of the requirement.
He said Khan was bound to adhere to the policy and dismissed her insistence that she was exempted because, as a chartered accountant, she had a scarce skill and this was the equivalent of a master's degree.
The DUT, in August 2020, set a deadline of the end of 2021 for all staff to comply with the policy otherwise they would be retrenched.
A total of 57 employees, including Khan, were initially targeted for retrenchment, but ultimately only 31 were let go following a CCMA-guided process involving the trade unions.
Khan was advised of her termination in August 2021.
In her evidence, Khan insisted that having a master's degree was not in her employment contract.
She said after she registered for her master's degree at Rhodes University, she had been advised by her head of department that it was not necessary and she should rather seek a conferral of the degree.
In assessing the evidence, Msizi said while the strategic policy had not initially been “driven hard”, it had gained momentum and “none of this was gainsaid by the applicant (Khan).
“The uncontroverted evidence (from the DUT witnesses) was that this imperative was an operational requirement ... that it had to be competitive, attractive and financially sustainable and the demand for a master’s degree was inextricably linked to this objective,” the judge said.
Khan’s reliance on the fact that she was a chartered accountant was only raised for the first time in the labour court hearing and was a “desperate attempt” to escape the master's degree requirement.
Her reliance on her contract of employment was another “red herring” and was not a point that the unions had even raised at the CCMA.
Regarding Khan’s belated contention that she should be given more time to complete the degree, the judge said she had known about the requirement for 11 years.
Msizi dismissed the application, but made no order as to costs “in the interests of justice”.
The universities of KwaZulu-Natal and Witwatersrand require a senior lecturer to hold an appropriate doctorate in the discipline, while at the Tshwane University of Technology, a master's degree is a minimum requirement.
