Case Number: PSES113 1516NW
Province: North West
Applicant: Senosi AE
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 6 September 2016
Arbitrator: Thema KC
Panellist/s: Thema KC
Case No.: PSES113 1516NW
Date of Award: 06 September 2016
In the ARBITRATION between:
(Union / Applicant)
North West Department of Education
Union/Applicant’s representative: Raikane PW
Telephone: 014 565 6615
Telefax: 086 244 5598
Respondent’s representative: Phuswane B
Telephone: 018 388 3384
Telefax: 018 388 1703
DETAILS OF HEARING AND REPRESENTATION:
1. The dispute was referred to the council as section 186(2) dispute in that the respondent has promoted the applicant to post level 4 but only paying him at post level 3.
2. The matter was scheduled for Arbitration on 25 November 2015 and was postponed to the 22nd of
February 2016.Due to unavailability of the respondent it was postponed to 22 March 2016.The matter was scheduled for the 19 August 2016 and it was postponed due to the request being made by the applicant and was postponed to the 18 August 2016 where it was finalized. The hearing was held at the Offices of the Respondent in Rustenburg.
3. The parties agreed to submit written heads of argument by 25 August 2016.
4. The Applicant,Mr.Senosi AE was present and was represented by Mr.PW Raikane(egal Practioner ) who was later substituted by Raikane EN from the same law firm Raikane Attorneys whilst Ms.Phuswane B, Labour Relations Official represented the Respondent, Department of Education.
5. The hearing was digitally recorded and notes were also taken.
ISSUE TO BE DECIDED:
6. Whether or not the Respondent committed unfair labour practice by paying the applicant at post level 3 instead of post level 4 as advertised.
7. The applicant, Mr.Senosi AE is appointed by the respondent as the principal.
8. The applicant applied for a post under post number 288 for a position of principal at Matetenene Secondary school.
9. The post was advertised at post level 4 with a salary notch of R411 555.00.
10. He was interviewed and appointed accordingly. He requires compensation and adjustment of salary notch.
SURVEY OF EVIDENCE AND ARGUMENT
11. It is not my intention, for purposes of this award, to record verbatim the evidence led, or arguments raised during this arbitration. Only the prominent issues that have a bearing on the matter to be decided are recorder hereunder.
The applicant Attie Edward Senosi testified under oath as follows:
13. He was appointed as principal at Matetenene Secondary school as from the 1st of October 2014.Consequently to that an appointment letter was issued to him which shows that he has been appointed at post level 4, principal at salary notch of R411 555.00.
14. He testified that he accepted the appointment and fill in the assumption of duty forms. Thereafter he was taken to Matetenene School where he was introduced as the new principal and resumed his duties but his salary was never adjusted according to the salary on his appointment letter. Instead of being paid on P4 level, he was paid on P3 level.
15. He testified that on the 11 December 2014 he wrote a letter to the circuit inquiring about his salary. On the 18 February 2015 he received confirmation from the circuit office that his appointment is on PL 4 not PL3.On the 10th of March 2015 he wrote another letter to the circuit as a follow up to the letter he wrote on the 11 December 2014 and he received no response.
16. He testified further that on the 29th of April 2015 he was called by Ms.Mokgope at her house who informed him that there is another appointment letter which has been drafted for him. He indicated that she did not give him the appointment letter at the time but she indicated that the appointment letter is for PL3.He stated that he informed her that he already has his appointment letter which is PL4,which was advertised as such in circular 192014 at post no 288.
17. He testified that he was on PL3 at salary notch R331 495 p.a and promoted to R411 555 p.a. The total difference amount to R80 061.00 for the month of October 2014 to March 2015(R7 138 monthly difference).From April 2015 there was 7% increment which pushed the notch to R440 365.85 p.a.The months which are outstanding are 14 months.
18. He testified that up to date there is no adjustment made and he received no letter to that effect. He testified that accepting PL3 is like a demotion and he cannot accept that. He indicated that he moved from his previous school laboring under the impression that he is promoted.
19. He testified that the letter on page 18 of the respondents bundle reflected unilateral demotion by the respondent as the salary dropped to R356 100.00.If he were to accept this changed situation ,this will diminish his chances of being considered for PL5 in future.
20. He testified further that there was a similar case of Mr.Mudutoane who was appointed at P2 as advertised but the school was P1.In order to accommodate him ,he was moved to another school which was equivalent to P2.He stated that his case was treated fairly than his case. He further testified that this is a trend which can be rectified. He seeks to be paid according to his appointment letter and maintain PL4.
21. He agreed under cross examination that the school (Matetenene) has a PPM which is issued end of October for the following year. He further denied that the number of posts on the PPM will determine the grading of the principal post. He said it is only used to show the number of posts at the institution.
22. The applicant further read out an extract from circular 19 of 2014 which reads as follows: “furthermore, if a post has been advertised and the learning institution does not qualify for such post according to the post establishment for 2014, the Department will regard the post as canceled.” He conceded that since the school does not have the post then the post will be regarded as canceled.
23. He further testified that the letter appearing on page 3 of the applicant’s bundle is a response to his letter dated 11 February 2014 as confirmation that his post is PL4.
24. He testified that documents will not refer to the reasons why Mudutoane was moved from one school to the other but he was informed by him that he was moved in order to accommodate him as he testified.
25. Under re-examination he testified that he was only informed after 7 months that his post is at PL3 not PL4.He was not being paid on either level 3 nor 4.The only appointment letter given to him is that of PL4 and has not being given PL3 letter.
26. He testified further that he has knowledge that the post is currently at PL3 not PL4 as being informed by Human Resource. There is no resolution nor policy issued regarding the change.
27. He stated that in terms of circular 19 0f 2014 when a post is cancelled it means he has to be taken to another institution equivalent to PL4.(I finf his interpretation of this policy convenient for him)
APPLICATION FOR POSTPONEMENT
28. The applicant made an application for postponement due to the fact that the respondent is challenging the contents of a letter dated 18 February 2015 which is appearing on the applicant’s bundle page 3.The documents was submitted in the morning and was accepted as evidence however the respondent made an indication that they will be disputing the contents of the said letter. They therefore had to subpoena the said author through the council.
29. The respondent objected to the application due to the fact that her application for postponement was denied at the commencement of the hearing and that the applicant knew what their case was all about therefore they should have prepared as such.
30. I have granted the request for postponement due to the following reasons: In the morning when this document was submitted it was admitted as evidence and the respondent immediately questioned and challenged its contents and asked if the applicant will be calling the author to come and testify, which is only fair as one cannot be expected to cross examine documents.
31. The applicant’s representative indicated that documents were exchanged prior to the arbitration meeting but the particular letter was only given to him the day before the arbitration hearing. The respondent also confirmed that indeed it was not part of the documents exchanged.
32. She was challenging the application only because her earlier application was denied.
33. She earlier made an application for postponement so that she can study the letter on page 3.
34. The letter she is referring consists of one sentence, she does not need a postponement to study it, I afforded her an opportunity to peruse and scrutinize it before we proceed with the hearing. Already she has made an indication that she is going to deny the contents of the letter which can only mean that she knew about the letter.
35. This is an unfair labour practice dispute therefore the onus is on the applicant to prove his case, since she knew that she is going to dispute the contents of the letter what she needed to do is then to put the respondent’s version which will be proved by evidence under oath when she is leading the case.
36. I did not find her reasons exceptional to warrant a postponement but just delaying tactics on her side.
37. However application of the applicant was granted after they led one witness to allow them to subpoena their last witness.
ANALYSIS OF EVIDENCE AND ARGUMENTS
38. The applicant testified that on the 11 December 2014 he wrote a letter to the circuit officer inquiring about his salary. He received a response which is appearing on page 3 of bundle A from the circuit confirming that his appointment is on PL4 not PL3.Immidiately after that testimony he testified further that he wrote another letter to the circuit on the 10 March 2015 as a follow up to the letter he wrote on the 11 December 2014.If indeed the author of the letter dated 18 February 2015 has confirmed that indeed the applicant’s appointment is on PL4 not PL3 then there will be no need for the applicant to make a follow up regarding the letter he wrote on the 11 December 2014,he will instead be making follow up on the response giving by Ms Mokgope inquiring why the decision or confirmation that he is on PL4 not being implemented instead.
The applicant was inquiring on the letter he wrote on the 11 December 2014 as he knows that Ms.Mokgope did not confirm his appointment to be on PL4, if he believes this version then Why did he not call Ms.Mokgope to come and testify to that effect.
The letter on page 3 reads as follows: “I hereby acknowledge receipt of your concern about the controversy around your appointment to the principalship post i.e. you’re appointment is supposed to be at PL4 not PL3”.I fail to understand how did the applicant come to the conclusion that Ms.Mokgope(Circuit Manager) was confirming his appointment to be at PL4 not PL3!I fail to see any confirmation from this letter,i.e. that is being used in the letter is an abbreviation used for latin term id est which simply means “that is”….and it is usually used when you want to clarify or explain what you just said in a different way.
This letter simply acknowledges receipt of his concern regarding the controversy around his appointment and the author explained the controversy referred to after i.e abbreviation which is “you’re appointment is supposed to be at PL4 not PL3”.I do not align myself with his version that Ms.Mokgope confirmed that his appointment is at PL4.
39. He testified further that on the 29th of April 2015 he was called by Ms.Mokgope at her house who informed him that there is another appointment letter which has been drafted for him. He indicated that she did not give him the appointment letter at the time but she indicated that the appointment letter is for PL3.
40. He testified that accepting PL3 is like a demotion and he cannot accept that. He indicated that he moved from his previous school laboring under the impression that he is promoted. If he felt that taking the appointment letter of PL3 would be like demotion, the question is why then did he not refer the case for demotion as it is provided in terms of the Labour Relations Act section 186(2)(b) but claim only outstanding salaries. How can he see this appointment as demotion as he was previously Deputy Principal PL3 and he is now on the level of a Principal PL3,this is promotion. I would not dwell much on the issue of demotion as the case before me deals with outstanding salaries that the applicant is claiming of the difference between PL4 and PL3 of the Principal post.
41. He testified under cross examination that the school (Matetenene) has a PPM which is issued end of October for the following year. He further denied that the number of posts on the PPM will determine the grading of the principal post as alleged by the respondent. He said it is only used to show the number of posts at the institution. In terms of the Personnel Administrative Measures (PAM) the salary of a principal of a school is determined by the grading of the school, which is done in accordance with the number of educator posts allocated to a school in term of national norms. This simply means that the grading of the school determines the salary range of the principal.
42. The applicant testified and agreed under cross examination that the school is indeed at PL3 level. He further conceded that the document on page 15 of the respondent’s bundle is issued during October for the following year. The total number of posts on this document is 22 which he agreed to.PAM under grading of schools is clear that the school which qualifies for 13-24 posts, the grading of a principal post will be at PL3.
When the applicant was asked questions regarding the PPM he was evasive and could not give clear answers saying this document just indicate the number of posts the school has. He did not want to elaborate nor agree to the fact that that the number of those posts would also determines the grading of the principal post as he knows that information is not good for his case.
43. The applicant seek to be appointed at PL4 principalship position at Matetenene school,how can he be appointed in a post that does not exist as he also conceded that the principal post at Matetenene school is at PL3.
44. The applicant further read out under cross examination an extract from circular 19 of 2014 which reads as follows: “furthermore, if a post has been advertised and the learning institution does not qualify for such post according to the post establishment for 2014, the Department will regard the post as canceled.” He conceded that since the school does not have the post then the post will be regarded as cancelled.
The same circular on paragraph 7.10 states that all advertisements are subject to amendment by the Department. Further states that a possible reduction or increase in learner enrollment at schools may affect the grading of the principal post. The Department therefore reserves the right to issue offers of appointment in terms of the valid grading of the school as applicable on the offer date.
This circular confirms what I have already stated above regarding grading of schools. The respondent reserves the right to correct their own mistakes and irregularities, the applicant cannot capitalize on the mistakes of the respondent.
45. Did the respondent committed unfair labour practice by offering the applicant the principal post of Matetene School at PL3 instead of PL4? No the respondent did not act unfairly, it acted in terms of their policies an circular 19 of 2014..Therefore the applicant is not entitled to any outstanding salary of the difference between PL4 and PL3.
46. The purpose of the doctrine of estoppel is to prevent a person from going back on their word
when it would be unjust or inequitable to do so.Is it unjust for the respondent to rectify their mistakes? Definately not therefore the principle of estoppel would not find any application in this case. Legitimate expectation also applies the principles of fairness and reasonableness. The applicant cannot say it is reasonable or fair to be appointed in a non-existent post.
He testified further that there was a similar case of Mr.Mudutoane who was appointed at P2 as advertised but the school was P1.In order to accommodate him, he was moved to another school which was equivalent to P2 as informed by Mr.Mudutoane himself. This is a second hand evidence which cannot be tested by cross examination, and therefore cannot be allowed. The applicant had an ample opportunity to call witnesses who will come and testify to this effect and clarify his evidence regarding the alleged move of Mr.Modutoane from one school to the other but he failed to do so.
47. The applicant have failed to discharge the onus to prove the claim of unfair labour practice based on payment of outstanding salaries on PL4 instead of PL3.
48. The Applicant has failed to prove that an unfair labour practice relating to payment of outstanding salaries on PL4 instead of PL3 has been committed by the Respondent.
49. Applicant’s claim is dismissed and he is not entitled to any relief;
50. There is no order as to costs.