Case Number: PSES64-14/15GP
Applicant: M.A. Modise
Respondent: Department of Education - Gauteng
Issue: Unfair Labour Practice - Provision of Benefits
Venue: DOE GAUTENG JOHANNESBURG
Award Date: 26 November 2014
Arbitrator: Hlalele Molotsi
Case Number: PSES64-14/15GP
Commissioner: Hlalele Molotsi
Date of Award: 20 October 2014
In the Arbitration between
Department of Education - Gauteng
Employee’s representative: G. Xungu ( SADTU)
Respondent’s representative: K.P. Tshiave ( Assistant Director)
DETAILS OF HEARING AND REPRESENTATION:
1. The arbitration hearing took place on the 14th of October 2014 at the offices of the Department of Education- Gauteng in Johannesburg.
2. The applicant M.A. Modise attended the arbitration proceedings. The applicant was represented by G. Xungu, an official of SADTU, a registered trade Union.
3. The respondent, Department of Education- Gauteng, was represented by K.P. Tshiavhe.
4. Both parties submitted bundle of documents which was accepted as part of the arbitration proceedings. The applicant’s bundle was bundle A and the respondent’s bundle was bundle B.
5. The arbitration proceedings were digitally recorded and the recordings submitted to the Education Labour Relations Council.
6. Both parties submitted written closing arguments which I have taken into consideration in reaching the decision below.
ISSUE TO BE DECIDED:
7. I am required to determine whether the respondent committed unfair labour practice towards the applicant in respect of non-payment of the acting allowance.
8. The applicant sought for the payment of the acting allowance in the event that he is successful with his claim. He wanted to be compensated for twelve months that he acted without being paid acting allowance.
9. The respondent on the other hand sought for the dismissal of the applicant’s claim as it believe that it did not commit any unfair labour practice towards the applicant.
BACKGROUND TO THE DISPUTE
10. The parties concluded and signed the pre arbitration minutes. The following are issues which are common cause according to the pre arbitration minutes:
10.1. Mr. Modise was seconded into a substantive vacant Senior Education Specialist post, stationed at the Sedibeng West District office from 01 January 2011 until 31 March 2014.
10.2. Acting allowance was paid to Mr. Modise for the duration 01 January 2011 until 31 December 2011 as well as the period 01 January 2012 until 31 December 2012.
10.3. At the beginning of 2013 Mr. Modise was served with a letter extending his secondment for the above mentioned position, however there was a clause in the secondment letter which indicated that acting allowance will not be paid for the year 2013.
10.4. Mr. Modise accepted the offer despite the inclusion of the clause that he will not be paid
10.5. Notwithstanding that the afore-mentioned clause, the respondent paid Mr. Modise Acting allowance for May 2013 and June 2013.
11. The following issues are in dispute:
11.1. Mr. Modise was aware that he would not be paid acting allowance for 2013.
12. The onus was on the applicant to prove that the conduct of the respondent amounted to unfair labour practice.
SURVEY OF EVIDENCE AND ARGUMENTS:
ON BEHALF OF THE APPLICANT:
13. The applicant testified under oath that he was seconded into a vacant Senior Education Specialist post in the Sedibeng West District. He was seconded in 2010. He acted for twelve months and was paid acting allowance.
14. His acting period was extended for another twelve months in 2012. He was paid acting allowance.
15. He was called into the Director’s office during February 2013. He was presented with a letter extending his acting period for another twelve months. He was informed that the acting period was approved without acting allowance. This approval was done by the Head of Department (HOD) for the Gauteng region.
16. The HOD further gave a directive that the post has to be advertised. The Director informed him that he will not receive acting allowance due to financial constraints.
17. He was given two options during the meeting with the Director: The post will be advertised shortly and if the post is not advertised during the beginning of the new financial year a motivation will be made for him to be paid the acting allowance. He signed the letter. He approached Mr. Mareletse (Deputy Director) when the post was not advertised.
18. Mr. Mareletse then made a motivation to head office for him to be paid acting allowance. Submission was duly made and the HOD only approved for the payment of acting allowance for the month of May and June 2013. Mr. Mareletse promised him to make another submission for the payment of the acting allowance.
19. The post was still not advertised and another submission was made to head office for him to be paid acting allowance. Mr. Mareletse told him that he has not yet receive a response from the head office. He wrote a letter to the Director regarding nonpayment of acting allowance and he received no response.
20. Mr. Modise then referred to page 20 of Bundle B paragraph 5.2. Which was recommendation to the HOD for the extension of his secondment. Paragraph 5.2. provides that permission be granted by the HOD that Mr. Modise exceed the 12 months of acting in a post and acting allowance be paid.
21. Mr. Modise further referred to page 17 of bundle B which is resolution no 8 0f 2001 of the ELRC regarding payment of acting allowance for an educator acting in a higher vacant and funded post. Paragraph 5.1. of the resolution provides that an acting allowance will be paid only to an educator who acts in a higher cant and funded post. Paragraph 5.2. Provides that if the period of appointment is longer than six weeks; but limited to a maximum of twelve months. Paragraph 6 indicates that compensation shall be backdated to the date on which the educator commenced acting provided that the acting is six consecutive weeks or longer.
22. Mr. Modise confirmed that his acting post was vacant and funded post. He expected to be paid acting allowance on the basis of the ELRC resolution 8 of 2001. He considered the contents of the letter appearing of page 11 of bundle B (letter extending his secondment for 2013 but acting without being paid acting allowance), as rendering services for free of charge.
23. When he wrote a letter appearing of page 3 of bundle a enquiring about the non-payment of acting allowance, he wrote the letter thinking that he will be paid his acting allowance. He never received a response to his letter. He thereafter decided to escalate the matter to the ELRC.
24. Under cross examination the applicant indicated that he accepted the terms of the letter extending his acting period without being an acting allowance after the Director said that the post will be advertised and the new financial year a submission will be made for him to be paid acting allowance. He also accepted that the promise made by the Director towards him that a motivation will be made for him to be paid acting allowance was subject to the approval of the HOD.
25. He said that he was familiar with resolution 8 of 2001. He was asked if he was familiar with the resolution, why did he accept the terms of the letter appearing of page 11 of bundle D. He said that the promises of the Director were reasonable and that was the reason why he signed the letter.
ON BEHALF OF RESPONDENT:
26. Mr. Tseko Mareletse testified under oath that he knows the applicant and he is aware of the dispute.
27. Page 6 of bundle B is letter written to the applicant after they received feedback from head office regarding the motivation that they made for the applicant’s secondment to be extended.
28. HOD approved the extension of the secondment but without paying acting allowance. The conditions of the extension were approved by the HOD. The applicant therefore had a choice of either accepting the terms and the offer or declining the offer. The applicant accepted the terms and the offer from the HOD.
29. Page 23 of bundle B was a motivation made to the HOD in the new financial year for the applicant to be paid acting allowance. The HOD only approved acting allowance for two months (May & June 2013). Previously the acting allowance for the office based people was not approved by the HOD.
30. Mr.Mareletse testified that there was no further suspension made to the HOD for the payment of the applicant’s acting allowance.
31. Under cross examination Mr. Mareletse confirmed that he drafted the letter appearing on page 11 of Bundle B. He confirmed that the conduct of the respondent was not unfair because the applicant accepted the terms and offer from the HOD. He also confirmed that when an employee is put into acting position, financial implications are considered. When the offer was made to the applicant, the respondent took into consideration the collective agreement (resolution 8 of 2001 of ELRC).
ANALYSIS OF EVIDENCE AND ARGUMENTS:
32. The onus was on the applicant to prove that the conduct of the respondent in not paying acting allowance amounted to unfair labour practice.
33. It is common cause that the applicant accepted the terms and offer from the HOD. The offer was that the secondment is extended but without acting allowance.
34. Despite the fact that the applicant was aware of the resolution 8 of 2001, he decided to accept the offer from the HOD.
35. There was an engagement between the applicant and the District office before the applicant accepted the offer. The respondent never imposed its offer unilaterally on the applicant.
36. The applicant testified that he accepted the terms of the HOD because of the promises made to him by the District Director. The promise was that the post was going to advertised soon and that in the new financial year a motivation will be made to head office for the applicant to be paid acting allowance.
37. The applicant accepted under cross examination that the promises made by the Director were subject to the approval of the HOD.
38. The fact that the HOD approved for the applicant to be paid acting allowance for the month of May and June 2013, does not mean that the applicant was now entitled to be paid acting allowance for the duration of his acting period. The conduct of the HOD can be seen as a gesture of goodwill nothing more nothing less.
39. On the basis of the totality of evidence, the fact that the applicant accepted the offer to act in the position during 2013 without being paid acting allowance, that the applicant accepted the offer despite knowing very well what resolution 8 of 2001 of ELRC say in respect of paying acting allowance, that there was an engagement between the applicant and the respondent before the applicant accepted the offer, that the respondent never unilaterally implemented the offer of extending the acting period without paying the acting allowance, I believe that the conduct of the respondent towards the applicant did not amount to unfair labour practice.
40. The conduct of the respondent towards the applicant by not paying his acting allowance did NOT amount to unfair labour practice.
41. The applicant’s case is hereby dismissed.
42. There is no order to costs made.
Commissioner: Hlalele Molotsi