Case Number: PSES 72-12/13 LP
Applicant: SAOU obo Joseph Hastings Harris
Respondent: Department of Education, Limpopo
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 16 February 2013
Arbitrator: Adv M. Phetla
Panelist : Adv M. Phetla
Case Number : PSES 72-12/13 LP
Date of award : 16 February 2013
In the arbitration between:
SAOU obo JOSEPH HASTINGS HARRIS _______________________________________________________________ (Union/Applicant)
DEPARTMENT OF EDUCATION (LIMPOPOPO)
Union/Applicant’s representative : Mr Smit
Union/Applicant’s address :
Union/Applicant’s Telephone No’s ()
Union/Applicant’s Fax No’s ( )
First Respondent’s representative : Mrs Netshingulu
Respondent’s address :
Respondent’s Telephone No’s : ()
Respondent’s Fax No’s : ()
1. DETAILS OF PARTIES AND REPRESENTATION
1.1 This is an arbitration award between, on the one hand, SAOU (“the union”) acting on behalf of Mr HArris (“the employee/ the Applicant”) and, on the other hand, the Department of Education (Mpumalanga) (“the employer”). The latter are collectively referred to as “the parties”.
1.2 The arbitration was held on 21 January and 6 February 2013 at Polokwane in the Limpopo province. The employee was represented by Mr Smit as a union official and the employer by Mrs Netshitungulu as an official. The parties handed in a bundle of documents marked 1 until 17. The proceedings were tape-recorded. The parties have reserved their rights to challenge any document handed in the proceedings.
2. ISSUES IN DISPUTE.
Whether the employee committed an unfair labour practice in that he denied the employee benefit which relates to the fact that had the employee completed the course as it was impressed upon him that he is on it, his level / notch would have increased to REQV 15 from 14 and thereby entitled him to a notch increase and a payment of a once-off bonus.
3. THE SUBMISSION AND ARGUMENT OF THE EMPLOYEE.
3.1 The employee testified that he became aware of the teacher-retraining programme that was offered by the employer to its workers. This he said he knew following a public notice by the employer per Circular No 173 of 2008. The relevant part thereof reads thus:
“ The Limpopo Department of Education has entered into a partnership with an Institution of Higher Education Learning (own emphasis) for the re-training of teachers to offer Mathematical Literacy. The department wishes to register (own emphasis) one teacher per school for a Mathematical Literacy Advanced Certificate in Education (ACE).
All FET schools in the province are required to select (own emphasis) ONE teacher per school to be enrolled for the ACE programme. The selected teacher should NOT be professionally qualified to teach mathematics…
The selected teachers should be willing to attend contact sessions that will be conducted during weekends and/or school vacations (own emphasis) …
The identified teachers should complete the attached form. The form should be submitted to the FET Curriculum Co-ordinators … on or before 28 November 2008.”
3.2 On 18 November he completed the form referred to above, which appears on page 5 and is entitled “Application for in-service Training Programme in Mathematical Literacy”. During January 2009 Mr Mogodi, who is the Co-Ordinator told him to come and collect the training material since he has been selected. He has also handed a copy of the contract to him and fellow teachers. Thereafter the employee has signed it and Mogodi took it back. He has attended classes about this training and signed the attendance registers thereof in the presence of Mogodi.
3.3 By the end of the first semester the employee and his fellow students had not received the student numbers and cards. On enquiry one Mr Sepeng advised that there is a backlog at the University that offered the training. He also said that they should write the exams and the cards will follow later.
3.4 During the second semester he enquired about his registration details with the University but nothing was forthcoming. Despite this he wrote exams. During 2010, being the next year of the continuation of the re-training programme, he sought the training material details but Sepeng told him that he has such information only for those that are registered and the employee is not one of them.
3.5 As a result the employee lodged a written grievance dated 24 March 2010 per page 7, in terms whereof he sought the employer to pay him all his transport costs for the year he has attended as well as the overtime pay that accrued. Together, these made a total of R75 915.00 as more fully outlined on page 17. After the employer`s response dated 3 March 2010 to his grievance, per letter dated 10 June 2010 the employee sought reasons from the employer on why the University has not registered him.
3.6 Under cross examination he said he has received nothing in writing from the employer showing that he has been approved on the re-training programme but all he received was just verbal. He persisted that he did sent his application form to the employer`s office in Vaalwater. Sepeng is a Lecturer that had signed his assignment whilst he attended the re-training programme.
3.7 He further said that he did not complete forms to be registered as a student at the University because the employer, to his knowledge was going to do this on his behalf. Knowledge of this process was conveyed to him and fellow students in class by Sepeng. Nobody in the class he attended had seen the registration forms. When it was put to him that students in his class had seen these forms he said in return that had he seen them, he would have completed them.
3.8 Max Mogodi (“Mogodi”) testified that he is employee by the employer as a Curriculum Advisor in the Nelstroom Circuit. He had no role in the enrolment of educators and including the employee. He was told by people from the University and the employer that the study material was to be issued out to educators who registered. As it was a long time ago, he does not remember the names of the individuals that told this to him. The tasks he had to perform in this regard excluded the handing out of contracts. He does not know who handed contracts out to students.
3.9 Under cross-examination he said that he gave students the study material on the first day of attending on the programme. He did not have a list of those to whom he was to issue out the material to. He just assumed that all of them were registered. He thinks that the Curriculum Co-ordinator is Mr Manganye.
4. THE EVIDENCE AND ARGUMENT OF THE EMPLOYER.
4.1 Dr Mampone Seopa (“Seopa”) testified that he is employed by the employer as a Chief Education Specialist. He said that the Nelson Mandela University was the service provider to the programme. The employer had identified educators and the University had to register them through schools principals. The role of the employer was that of a facilitator and effect tuition payment on behalf of educators on the programme whereas the University exercised the prerogative on who to register and also appointed tutors.
4.2 The principals sign for the release of teachers from their schools and confirm that they have volunteered for such. He further said that the application form on page 5 had to be signed by educators at the centres the employer had identified. He is not aware of any contract that had to be signed by educators in connection with the programme.
4.3 Under cross-examination he said that the contract referred to by the employee on page 6 was designed by the employer in order to retrieve money from students who did not complete the course. District Co-Ordinators informed students to meet at place where registration would take place. It is at these places that registration forms would be given to students whose names came from schools.
4.4 The University advised students of the outcomes on their registrations through the Provincial Co-Ordinators. He believes that the University is better-placed to explain how come a student is not registered. He further said that a list of students sent by the employer to the University was used by it to make its selection. Thereafter the university gave them its list of those it has registered. Tutors were the only one able to tell students who did it register.
4.5 He conceded that many educators did enquire in the first semester about the outcomes on their registration. His Directorate did check with the university on how far it was with the registration for there was a specific number of students for whom fees had to be paid for. There was also a service-provider who liased with the University on behalf of the employer. To date there are educators that has not been registered whilst others got registered during April.
5. ANALYSIS OF SUBMISSION AND ARGUMENT.
5.1 The crisp question to be decided here is what is it that can be branded as (a) an unfair conduct or (b) omission by the employer towards the employee relating to the training of or provision of benefits to the employee.
5.2 In this connection it is common cause that the employer and the University were in partnership to effect the re-training of teachers so that that they could be certificated for a mathematical Literacy Advanced Certificate in Education (.ACE). Therefore, on the one hand, the latter was the benefit that would accrue to educators that has received the training. On the other hand, the training itself entails having to be first selected by the school and later be registered by the University
5.3 In all instances, specific requirements had to be met. The application form to be considered to be on the training programme which was purportedly completed by the employee and the principal of his school was not disputed. The evidence of Seopa that such form placed the role of the employer as that of selecting educators through the Principal of an educator`s school who by signing said form confirms that an educator has been released for such an activity and they have so volunteered in turn.
5.4 I accept from this evidence that the employee has indeed met the first phase of being selected by the employer to undergo the programme. As regards the second phase of being registered by the University on the programme, the employee conceded under cross-examination that he has not completed registration form for this purposes.
5.5 He further said that reason is that he believed, from what he has been told by Sepeng, who is a Tutor or Lecturer from the University he need not complete these since the employer will be doing it on behalf of all educators selected. Sepeng was not called to testify.
5.6 He denied the employer`s version that that students had completed the registration forms in class. Concerning how registrations were done, Seopa said under cross-examination that District Co-Ordinators informed students to meet at place where registration would take place. It is at these places that registration forms would be given to students whose names came from schools. Neither he relevant District Co-Ordinator in the employee`s instance nor any student who had received the registration form and completed them were called to testify. Seopa`s testimony becomes hearsay in this regard.
5.7 Mogodi`s testimony did not address itself on how registrations were done. In fact he said that he just told to give the study material to those that registered. Whether the employee is one of those that registered he had no knowledge thereof.
5.8 Notwithstanding the above, there is also common cause, from the testimony of both the employee and Seopa that there were delays that occasioned the registration process. The consequences of these delays are such that whether the employee has registered or not, it would not have been discovered earlier, that before the end on 2009, that he has not been registered.
5.9 The significance of this delay is that it is due to it that the employee has been subjected to the entire year of study and yet at the end of the said semester, only to be placed in a position of foregoing the programme due to a delayed answer on the outcome of his registration, having spend time and money in vain.
5.10 Whereas it may be one thing to tell the employee that he has been selected by the employer, it is another tell him that he has been registered (by the University). The unchallenged evidence of Seopa is to the effect that the University had the prerogative of deciding on the outcome of registrations and had liased with the Provincial Co-ordinator of the employer on making that decision known. His further unchallenged evidence is that the employer`s interest in checking on the outcome of registrations was specifically to know how many educators had been registered so that it can pay for the specific intended number.
5.11 The employee, on his own version testified that Sepeng had during the first semester told him and other educators that they may proceed with writing exams since there is a backlog in processing registrations. He further testified that during the second semester, when he enquired about the supply of that semester`s study material, Sepeng told him that this is only being issued to those that had registered and that the employee is not one of those registered.
5.12 The employee`s testimony is consistent with Seopa`s testimony that it is only a Tutor and the University that are better-placed to know and relate the outcome of registrations to educators. As such, the employer`s testimony shows that it was beyond its to control to avoid delays in the registration process so as to avoid a situation such as the one the employee found himself at a loss.
5.13 Accordingly there is no evidence showing that the employer has committed any unfair act against the employee in relation to his training. The evidence of the employer that it has also had a service provider that liased with the University on the progress of the university in processing registrations was not challenged to show that these steps were either not required or sufficient to discharge, if any, of the employer`s obligations towards the employee.
5.14 There is also no evidence showing that the training was offered on the terms and conditions specified by the employer at least in the above referred circular
6.1 Absent proof of any unfair act or omission by the employer against the employee in relation to the training or provision of benefits, an unfair labour practice case has not been established. The employee`s case is dismissed and there is no order as to costs.