Case Number: PSES 10/99 0729 & 11/99 0777 NP
Province: Eastern Cape
Applicant: BALOYI AND ELEVEN OTHERS
Respondent: DEPARTMENT OF EDUCATION NP
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 2 May 2001
Arbitrator: J LE ROUX
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBERS : PSES 10/99 0729 & 11/99 0777 NP
In the arbitration between:
BALOYI AND ELEVEN OTHERS APPLICANT
THE DEPARTMENT OF EDUCATION RESPONDENT
1 . This arbitration was heard on 19 April 200 in Pietersburg. Mr. Maseka represented the Department of Education: Northern Province (Employer or the Department). Mr. Mokgalabone, an attorney from the firm Lebea and Associates, represented the employees whose names appear on pages 15 and 16 of the bundle.
2.1 The only issue for me to determine is whether or not the educators at Giyani and Mhalala Science Centre (the Science Center) were entitled to have their salaries and special allowance consolidated in terms of Resolution 4 of 1997 read with Resolution 6 of 1996.
2.2 I should also determine whether or not Resolution 6 could at all be applied to the Science Center.
2.3 The respective representatives agreed that this mailer need only be argued, and that no evidence will be presented through witnesses. They further agreed that only the merit of the matter will be determined and that the quantum will be determined at a later stage should it be necessary.
3.1 Item 4.1 of Resolution No. 4 of 1997 is relevant and reads as follows:
"4.1 Special Allowance
All special allowances, except the special allowance paid to post level 1 educators who are also performing the functions of principals at a small/farm school, shall be terminated with effect from 1 July 1997. In order to accommodate those educators who are currently being paid a special allowance, such allowances shall be firstly consolidated with such educator's salary before adjusting to the new salary scale on 1 July 1997."
3.2 The relevant part of Resolution 6 of 1996 reads as follows:
"Resolution No. 6 of 1996; Residual issues emanating from Resolution No. 3 of 1996.
A non-pensionable allowance equal to the difference between the salaries applicable to the educator's salary position and the next salary position, is payable to the following educators
(a) Educators post level 1 who are employed at a school for learners with special educational needs (LSEN).
(b) Educators on post level 1 who hold the post of principal.
(c) Educators on post level 1 who have additional responsibilities beyond their teaching responsibilities in respect of a section of agriculture, e.g. agronomy, cattle breeding, etc.
(d) Educators on post level 1 who were in the service of the Adult Training Center, Westlake or the Adult Training Center attached to the Vereeniging Technical College on 1 October 19S4 and who are still in service on post level 1 ai one of these institutions. This allowance is therefore not paid to educators who were/are appointed after 1 October 1984.
The parties lake note ofihe State's intention to place on the agenda of Council the possible elimination of allowances as set out in paragraphs (a), (c) and (d) above after one year of this agreement and that the agreement in this regard will be applicable until 30 June 1997. Note is al50 taken of the employees'" view that educators who are receiving these allowances have a legitimate right in this regard."
4.1 The government of the erstwhile Gazankulu approved a recommendation that educators at the Science Center be paid an allowance, since their hours of duty extend up to late in the afternoon and even on Saturdays. It was recommended that the educators be paid a 12.5% allowance.
4.2 It is this allowance that is now under dispute since the Department of Education of the Northern Province terminated those allowances with effect from 1 July 1997.
5.1 Mr. Maseko argued that Resolution 4 of 1997 should be read in conjunction with Resolution 6 of 1996. It would then be noted that only those persons mentioned in Resolution 6 of 1996 would be entitled to have their allowances consolidated with their salaries before such educators’ salaries are adjusted to the new salary scale. He argued that the educators at the Science Center arc not mentioned in Resolution 6 of 1996, and therefore they would not be entitled to the consolidation. He submitted that it was not an allowance but it was something based on a decision from the erstwhile Gazankulu Government.
5.2 Mr. Mokgalabone on the other hand argued that it was undisputed that, what the educators at the Science Center received, was an allowance. He based this submission on the undisputed letter on page 1 of the bundle from the erstwhile Gazankutu Government. With this in mind, he said that Resolution 4 of 1997 could only affect the allowances of the people mentioned in Resolution 6 of 1996. Because the Science Center educators are not mentioned in Resolution 6 of the Department had no authority to phase out the allowances given by the erstwhile Gazankulu Government.
5.3 He therefore requested me to find that Resolution 6 of 1996 did not apply to the educators at the Science Center, and that the Department of Education; Northern Province be ordered to restore the allowances from the date of termination until a new resolution is enacted that would specifically phase out those allowances- Alternatively he argued that should I find that Resolution 4 of 1997, (and by implication Resolution 6 of 1996) was applicable I should order that me educators' salaries be consolidated with their allowances before their salaries were adjusted to the new salary scale.
6.1 I have little doubt that, based on the 'memo' from the Ga2ankulu Government. The educators at the Science Center received an allowance. This allowance was paid to them since May 1992.
6.2 Resolution 6 of 1996 entitled certain specified educators (those mentioned in the Resolution) to receive a non-pensionable allowance equal to the difference between the salaries of the educator's salary position and his next salary position.
6.3 The allowance paid to the educators at the Science Center was paid at 12.5% of their salaries that was equivalent to the then resident teacher's allowance.
6.4 It is clear to me, based on the fact thai the Science Center educators were given an allowance since 1992, pre-determined at 12.5"/o, whereas the educators mentioned in Resolution 6 of 1996 were given an allowance from 1996 determined as the amount equal to the difference between the salaries applicable to the educator's salary position and his next salary position, that one has to do with two different allowances.
6.5 Once it is determined that one has to do with two different allowances, and once it is accepted that Resolution 4 of 1997 refers to the allowances mentioned in Resolution 6 of 1996, then it would follow that the Department had no authority to withdraw me allowances of the educators at the Science Center.
6.6 I have read and re-read the whole of Resolution 4 of 1997, and I am still unable to find any connection between clause 4.1 of Resolution 4 of 1997 and the provisions of Resolution 6 of 1996.
6.7 To my mind, "All special allowances,..." referred to in clause 4.1, would apply to anybody who received a special allowance at the Time of tile implementation of Resolution 4 of 1997.
6.8 The educators at the Science Center received an allowance. They were not at that stage performing the functions of principals at a small / farm school.
6.9 Therefore, the special allowance shall been terminated with effect from I July 1997.
6.10 Clause 4.1 of Resolution 4 of 1997, further provides, that the special allowance will not only be terminated, but that the people who received special allowances would be accommodated in the sense that those allowances shall first be consolidated with the educator's salary before it be adjusted to the new salary scale.
6.11 It was common cause That the educators at Science Center salaries were never consolidated.
6.12 I therefore find myself in agreement with the alternative argument forwarded by Mr. Mokgalabone.
My award accordingly 13 as follows:
7.1 The educators at the Science Centre are entitled to have their salaries and special allowances consolidated with effect from 1 July 1997.
7.2 I further find that Resolution 6 of 1996 did not apply to the educators at the Science Centre.
J LE ROUX
2 MAY 2001
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBERS PSES 10/99 0729 & 11/99 0777 NP
APPLICANT BALOYI AND ELEVEN OTHERS
RESPONDENT DEPARTMENT OF EDUCATION NP
NATURE SALARIES (CONSOLIDATED)
ARBITRATOR J LE ROUX
DATE OF ARBITRATION 19 APRIL 2001
APPLICANT MR MOKGALABONE
RESPONDENT MR MASEKO
1.1 The educators at the Science Centre are entitled to have their salaries and special allowances consolidated with effect from 1 July 1997.
1.2 I further find that Resolution 6 of 1996 did not apply to the educators at the Science Centre.
DATE OF AWARD 2 MAY 2001