Case Number: PSES 428 – 13/14MP
Applicant: Ms. N Mokoena
Respondent: Department of Education, Mpumalanga
Issue: Unfair Labour Practice - Interpretation of collective agreements
Award Date: 16 September 2014
Arbitrator: Coen Havenga
IN THE ELRC ARBITRATION
Ms. N MOKOENA “the Applicant”
DEPARTMENT OF EDUCATION – MPUMALANGA PROVINCE “the Respondent”
ARBITRATION AWARD – INTERPRETATION OF COLLECTIVE AGREEMENT
Case Number: PSES 428 – 13/14 M
Date of arbitration: 26 May 2014
Last written arguments received: 09 September 2014
Date of award: 16 September 2014 (extension arranged)
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
The hearing of the arbitration took place on 26 May 2014 at the offices of the Mpumalanga Department of Education in Bushbuckridge. The Applicant is Ms. N Mokoena, represented by Mr. J Chiloane, an attorney. The Respondent is the Mpumalanga Department of Education, represented by Mr. B Malaza. The parties agreed to have the matter decided on written arguments alone, and the award was delayed as I only received the Applicant’s arguments on 18 August 2014 from the ELRC, the same date it was delivered to their offices. The parties did not include the collective agreement which forms the basis of this dispute, and it was only submitted on 9 September 2014 on request.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The parties concluded a pre-arbitration meeting, and agreed on the following:
The Applicant is employed as a PL1 educator at Londhindha Primary School.
The Applicant had been employed without a break in service since 1982.
The Applicant’s current salary notch is R250 029-00 per annum.
The issues in dispute are:
The Applicant submits that her correct salary notch should be R291 837-00 per annum.
The Respondent submits that the Applicant salary notch of R250 029-33 is correct, and relies on the application and interpretation of Collective Agreement 5/2006 as the determining factor for her current salary notch.
The parties agreed that the issues to arbitrate are:
Whether Collective Agreement 5/2006 applies to the Applicant; and
whether the Applicant is paid on the correct salary notch according to the interpretation and application of Collective Agreement 5/2006, and if not, what the appropriate remedy would be.
The relief claimed by the Applicant is:
Readjustment of her salary notch;
reimbursement of the retrospective difference she is entitled to; and
Costs in favour of the Applicant.
SUMMARY OF ARGUMENTS
The parties agreed to have the matter decided on written arguments alone, and neither party called any witnesses. Both parties submitted extensive written arguments accompanied by supporting documentation which form part of the record. The arguments are summarized below.
THE APPLICANT submitted the following arguments:
She commenced her career as an educator with the Respondent on 1 January 1982 at Oakly Primary School.
On 28 December 1984 she transferred to Sindawonye Primary School where she worked until 1989.
From 1990 to 1993 she worked at Entokozweni Junior Primary School.
She transferred to Londinda School on 6 January 1993 and had been working there to date.
She never had a break in service and worked for the Respondent for uninterrupted period of 31 years.
When she started her employment she had a Primary Teachers Certificate (PTC) and was employed as a professional teacher.
Since 1993 she submitted the following qualifications: FED (Diploma), BA, FED, Bed (Honors).
Her current salary notch is R250 029-00, which she argues should be at R291 837-00.
Before Collective Agreement 5/2006 took effect she realised that her commencement date was wrongly stated as 1993. This means that her employment from 1982 was not recorded and negatively affected her position, he experience was not recognized, her leave days was incorrect captured and her salary notch was below what it should be.
When the Collective Agreement 5/2006 took effect she approached the regional office of the Respondent in Hoxane, and the Respondent corrected her commencement date to 1982.
The Respondent refused to update her salary notch. She remained on the same notch despite her employment date having been corrected to 1982.
She compared her position to that of a colleague, Florence Khoza, who started with her at the same time with the same qualification. The Applicant is more qualified than her now, but Florence Khoza’s salary notch is R291 837-00. The Applicant argues that she should be on the same notch according to the provisions of Collective Agreement 5/2006.
She lodged a number of grievances but the Respondent failed to adjust her salary despite acknowledging that she qualified. The Applicant alleges that the officials at in HR said they were scared to adjust her salary because the Department would lose a lot of money on arrears to be paid to her.
The Applicant prays that her salary notch be adjusted R291 837-00, her capped leave days be adjusted accordingly, that she be considered for experience awards and that the Respondent pay her costs of referring the dispute on attorneys and client scale, alternatively on party and party scale.
THE RESPONDENT submitted the following arguments:
The Applicant was employed by the Respondent as a teacher since 1982.
She worked for a period of 15 years, from 1982 to 1997, as an under-qualified educator (assistant teacher), as she only had standard 10 and a Primary Teacher Certificate (PTC).
She obtained her first recognized 3-year qualification in April 1997, after the Resolution 3/1996 was concluded in the ELRC, which replaced the categories to REQV’s (Relative Education Qualification Value) in the qualification of educators. At the time the Applicant was in category B which is equivalent to category 12. He salary range at the time was 4 to 6 in terms of that resolution. On submission of her Primary Teacher Diploma in 1997 she was correctly elevated to the REQV 13 and her salary was adjusted according to the notch that was applicable, i.e. R43 344-00.
The Applicant further obtained a partly completed BA degree in February 1999 and her salary was adjusted to the minimum notch of REQV 14. In 2004/2005 she further obtained a Diploma in Education and Honors degree. The qualifications she obtained after she has reached REQV 14 were not recognized in terms of salary adjustment but she was granted qualification bonus for both qualifications, which was in accordance with section 4.5(c) of the Employment of Educators Act 76 of 1998.
The Respondent agrees with her commencement date and her leave days were audited and found to be captured correctly.
The Applicant is remunerated correctly at the current salary notch of R250 029-00 according to her qualifications and experience.
In respect of the comparison with Ms Khoza, she obtained her first recognized 3-year qualification in April 1996, the year when Resolution 3/1996 was concluded. At the time her salary range was 6 to 7 which is significantly higher than the Applicant’s. The fact that the Applicant obtained the 3-year qualification a year after Ms Khoza, makes it impossible for her to be on the same salary level because salaries were adjusted according to qualifications at that time. It was impossible for both to have received the same salary in 1996 because of their respective qualifications they held.
There is no substantive evidence that the Respondent acknowledged any arrear salaries due to the Applicant.
The analysis of the Applicant’s payment record shows she was paid an accelerated progression in respect of Collective Agreement 5/2006.
The Respondent pray that the Applicant’s case be dismissed.
ANALYSIS OF ARGUMENTS
I have considered all the relevant provisions of the South African Schools Act, no. 84 of 1996 (SASA), the Employment of Educators Act, no. 76 of 1998 (EEA), the provisions of Collective Agreement no. 5 of 2006, and the arguments of the parties as well as the documentary evidence submitted.
I find no substance in the Applicant’s arguments that the Respondent failed to, or incorrectly interpreted and/or applied the provisions of Collective Agreement 5/2006. Considering the explanation given by the Respondent above, I cannot find that the Applicant is remunerated on the incorrect salary notch.
The Respondent also provided valid grounds why there would be a disparity between the Applicant’s salary notch and that of Ms Khoza. Ms Khoza obtained her first recognized 3-year qualification in April 1996, the year when Resolution 3/1996 was concluded. At the time her salary range was 6 to 7 which is significantly higher than the Applicant’s. The fact that the Applicant obtained the 3-year qualification a year after Ms Khoza, makes it impossible for her to be on the same salary level because salaries were adjusted according to qualifications at that time. It was impossible for both to have received the same salary in 1996 because of their respective qualifications they held
I accordingly find that the Applicant did not prove on a balance of probabilities that the Respondent erred in its interpretation and application of the Collective Agreement 5/2006. I find that the Applicant is paid on the correct salary notch of R250 029-00 according to the interpretation and application of Collective Agreement 5/2006
My award, accordingly, is as follows:
1. The Applicant is not entitled to relief and her claim is dismissed.
2. No order is made in respect of costs.
Arbitrator 16 September 2014