Case Number: PSES WC
Province: Western Cape
Respondent: DEPARTMENT OF EDUCATION WC
Issue: Unfair Dismissal - Constructive Dismissal
Venue: CAPE TOWN
Award Date: 21 December 2000
Arbitrator: JOHANN HAMMAN
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES WC
In the arbitration between:
WESTERN CAPE EDUCATION DEPT. RESPONDENT
1 . INTRODUCTION
This arbitration concerning the alleged unilateral changes in the employment conditions of Mr. Sassman, a lecturer at Athlone College, took place in Cape Town on 8 December 2000. Ms Pienaar of Millers Inc. represented the Applicant, while the Western Cape Education Department (WCED) was represented by Mr Petersen and Mr. Faker.
2. ISSUES IN DISPUTE
The issue in dispute is whether the WCED committed an unfair labour practice in the form of a unilateral change of employment conditions when they adjusted Mr. Sassman's salary in January 2000.
3.1 Most of the evidence was common cause. In Aprill997 Mr. Sassman obtained his N6 Certificate at Athlone College. In May 1997 he was approached with an offer of employment as a temporary lecturer at the College. During the interview with the Vice-Rector, Mr. Wade, he was informed that the salary scale would be R2700-R3500 per month. He accepted the offer of employment and has been teaching there since.
3.2 His contract was for a fixed-term, three month period at a time and has been renewed ever since. It is important to note that this contract stipulates that 'your appointment in terms of this contract will not be construed as giving rise to any expectation whatsoever to any further term of employment after [the end of the three month period], whether temporary or otherwise. The contract terminates on the said date'. In other words, the contract explicitly excludes the doctrine of 'legitimate expectation', that is, if a person had been contracted on a fixed-term which is renewed repeatedly, such a person has a legitimate expectation that the contract will be renewed. Mr. Sassman applied for the same temporary post after every three month contract, was nominated and appointed again.
3.3 In 1999 Mr. Sassman applied for a permanent post at the College. When the WCED checked his qualifications, they found out that he was an underqualified teacher. The requirement for this post is N3 and two years of industrial experience (or N3 and a trade test, where applicable). Despite being in possession of an N6, he lacked the necessary industrial experience required by the Department. They accordingly decreased his salary to that of a REVQ 10, instead of the salary of a person on the REVQ notch that he had been earning.
3.4 Not only was his salary reduced, but he was also required, in terms of Regulation 13(1) of the Employment of Educators Act of 1998, to repay to the WCED the sum overpaid to him during the period 1 June 1997 and 31 December 1999.
3.5 During the course of 2000 the WCED made representation on his behalf to the National Education Department seeking to have his experience as a lecturer recognized as 'industrial experience', and this permission was granted in September 2000. He is now recognized as a REVQ 13 lecturer with the appropriate salary. For the period 1 January 2000 to 30 September he was actually underpaid, since the REVQ 13 is applicable from 1 January 2000. Since the Regulations require the WCED to recover monies overpaid, this underpayment was offset against the amount by which he was overpaid. According to their figures, he still owes them R14 000 in overpaid salary. No deductions have yet been made
4. ANALYSIS OF THE ARGUMENTS
4.1 The question which arises is whether the 'demotion' (i.e. reclassification according to his qualifications) constitutes a unilateral change in employment conditions, a recognized unfair labour practice in terms of the Labour Relations Act of 1995. In terms of Section 2(l)(b) of Schedule 7 to the LRA, an unfair labour practice means any unfair act or omission that arises between the employer and employee involving 'the unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the benefits to an employee'.
4.2 The employer argued that the re-classification of Mr. Sassman according to his qualifications, and concomitant reduction in salary did not constitute a decision to alter the employment conditions of Mr. Sassman, but a legal requirement placed on them by the Employment of Educators Act.
4.3 The common law position is that remuneration overpaid in consequence of a bona fide and excusable mistake by the employer unjustifiably enriches the employee and is therefore recoverable recoverable by me employer (see Brassey Emplpymgnt_and_Labgur_Law. Vol 1 E57).
4.4 The matter is specifically addressed in Regulation 13 of the Employment of Educators Act, which provides that,
'(1) if an incorrect salary on appointment, transfer or promotion or an incorrect advancement of salary was awarded or granted to an educator, or if me correct salary was awarded or granted but at a time when or in circumstances under which it should not have been awarded to him or her, the employer shall correct the educator salary with effect from the date on which the incorrect salary or salary advancement commenced, notwithstanding the fact that the educator was unaware that an error had been made in the case where the correction amounts to a reduction of his or her salary.
(2) If an educator [had] ...
(b) been overpaid or received any such other benefit not due to him or her -
(1) an amount equal to the amount of overpayment shall be recovered from him or her by way of a deduction from his or her salary in instalments as may be determined by the employer...'
4.5 This regulation makes it clear that a deduction of the salary of an educator does not constitute an unfair labour practice nor a breach of the Basic Conditions of Employment Act. The employer, here the WCED, is instructed to recover such overpaid monies and its only discretion lies in the instalment amounts.
4.6 The question which arises is whether a correction of an educator's salary is equally peremptory and not subject to the normal principles of natural justice and fair labour practice jurisdiction?
4.7 In Holgate v Minister of Justice (1995) 16 ILJ 1426 a prosecutor (covered by the Public Service Act, which in Section 38 has a similar provision to Regulation 13) was found to have been overpaid because of lack of academic qualifications for the post he had been occupying. The employer accordingly demoted him and paid him a lower salary, but he continued to serve in the same post. The Court, through Froneman J, held that the decision-maker, discharging a public function, had a duty in administrative law to act fairly in dealing with the case. This entailed giving the prosecutor a hearing before making a decision that cased him injustice. No hearing had been given and such an injustice was implicit in using him to do the same work when he now occupied a lesser position and drew a lower salary.
4.8 The Holgate-judgment suggests That an unfair labour practice was committed when Mr. Sassman was not given a hearing when his salary was reduced to REVQ10. However, that judgement can be distinguished from the current scenario. First, Regulation 2(1) of the Employment of Educators Act provides that no person shall be appointed as an educator unless they comply with the qualifications and experience requirements determined by the Minister in terms of Section 4 of the Act (the Personnel Administration Measures or PAM), provided that 'the employer may appoint a person who is not in possession of an approved qualification as an educator in a temporary capacity for a specified period if the employer deems such an appointment necessary and in the interest of education'.
4.9 Thus Mr. Sassman's appointment was authorised under the conditions (evidence was lead that it is extremely difficult to get lecturers in technical subjects since an educator's remuneration is much lower than the private sector), and under very specific terms (temporary and for a specified period).
4.10 The PAM farther specifies that persons who are not in possession of an appropriate educators' qualification (REVQ13) may not be appointed as educators, save for a number of individual cases where the qualification requirements may be relaxed. One such relaxation is with regard to posts for Technical Subjects (see PAM 2.2(a)). They must be remunerated according to the appropriate lower salary ranges (i.e. REVQ10). In the Holgate-case it was found that the appointment of the prosecutor in a higher position was permissible, here it is prohibited.
4.11 It is in the provisions relating to the nature of underqualilied educators' contracts (namely temporary and for a fixed term) that Mr. Sassman's application fails. Since he has no legitimate expectation that the contract will be renewed at all, he also has no legitimate expectation that the contract will be renewed on the previous terms. It is therefore found that he had no right to a hearing before his employment conditions were adjusted, and accordingly that no unfair labour practice was committed when his remuneration level was corrected.
5.1 The application fails and no award is made. However, one of the implications of this award is that the WCED is not entitled to recover the amounts overpaid to Mr. Sassman during 1997 and onwards.
5.2 Regulation 6 provides that an educator shall be paid a salary from the date on which he or she assumes duty up to and including the date on which his or her service terminates. Regulation 13 specifically refers to the date on which the incorrect salary commenced as the date from which deductions are authorized. Mr. Sassman had been employed by the WCED on 14 different contracts since the start of their relationship.
5.3 At the moment he is being remunerated according to the appropriate salary scale. He is therefore not being under- or overpaid and no deduction is authorized by the Act
5.4 If the parties wish to pursue the unjustified enrichment claims or unlawful set-off claims, the civil courts would be an appropriate forum.
21 DECEMBER 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES WC
RESPONDENT DEPARTMENT OF EDUCATION WC
NATURE CONDITIONS OF EMPLOYMENT
ARBITRATOR JOHANN HAMMAN
DATE OF ARBITRATION 8 DECEMBER 2000
VENUE CAPE TOWN
APPLICANT MS PIENAAR
RESPONDENT MR PETERSEN & MR FALKOR
1. The application fails and no award is made. However, one of the implications of this award is that the WCED is not entitled to recover the amounts overpaid to Mr. Sassman during 1997 and onwards.
2. Regulation 6 provides that an educator shall be paid a salary from the date on which he or she assumes duty up to and including the date on which his or her service terminates. Regulation 13 specifically refers to the date on which the incorrect salary commenced as the date from which deductions are authorized. Mr. Sassman had been employed by the WCED on 14 different contracts since the start of their relationship.
3. At the moment he is being remunerated according to the appropriate salary scale. He is therefore not being under- or overpaid and no deduction is authorized by the Act
4. If the parties wish to pursue the unjustified enrichment claims or unlawful set-off claims, the civil courts would be an appropriate forum.
DATE OF AWARD 21 DECEMBER 2000