Case Number: ELRC 22-16/17 NW
Province: North West
Applicant: NEHAWU obo Roodt, C J
Respondent: Taletso TVET COLLEGE- Mmabatho
Issue: Unfair Dismissal - Misconduct
Venue: 2766 Dr Albert Luthuli Road, Mmabatho.
Award Date: 2 December 2016
Arbitrator: THABE PHALANE
PANELIST: THABE PHALANE
CASE NUMBER: ELRC 22-16/17 NW
DATE OF AWARD: 2 December 2016
IN THE MATTER BETWEEN
NEHAWU obo Roodt, C J APPLICANT
Taletso TVET COLLEGE- Mmabatho RESPONDENT
Union/Applicant’s representative: Mr P Phogojane-Union Official
Applicant’s address: 2766 Dr Albert Luthuli Road
Telephone: 082 587 43477/ 082 700 6910
Email /Fax: firstname.lastname@example.org / email@example.com / 018 632 4317
Respondent’s representative: Mr Rampedi, J. L
Respondent’s address: 2766 Dr Albert Luthuli Road
Telephone: 071 681 2910 / 083 642 3695
Email/ Fax: firstname.lastname@example.org / 018 384 7511
A. DETAILS OF HEARING AND REPRESENTATION.
1.1 The Arbitration proceedings took place on 3 November 2016 at the boardroom of the Respondent, situated at 2766 Dr Albert Luthuli Road, Mmabatho.
1.2 The Applicant attended and was represented by Mr P Phogojane, the Union official, whilst the Respondent was represented by Mr J. L Rampedi, the labour relations officer of the Respondent.
1.3 The parties did not engage in a pre-arbitration conference and I started the hearing by narrowing issues. The parties then signed the pre-arb minute which is incorporated into the record.
1.4 The parties then submitted that they require an interpretation of the collective agreement Resolution 8 of 2001-Payment of an acting allowance for an educator acting in a higher vacant and funded post.
1.5 The Applicant also handed in a bundle of documents when submitting their oral arguments. The Respondent did not submit any bundle of documents.
B. PRELIMINARY ISSUE
There was no preliminary issue raised by the parties.
C. BACKGROUND TO THE ISSUE
1.6 The Applicant is employed by Respondent as a Senior Lecturer, PL 2. She is currently earning a salary of R 250 264 per annum.
1.7 Applicant acted in the position Head of Department, PL3 from January 2010 to May 2013. At that time she was a lecturer PL 1.
1.8 She was not paid her acting allowance for the period that she had acted.
1.9 The applicant then lodged a grievance on 8 November 2013 but the matter was not resolved.
1.10 The Applicant submitted that she had acted following a lawful instruction from her superiors.
1.11 The Respondent on the other hand submitted that the Applicant was not appointed, as she had no appointment letter.
1.12 The Applicant was also not acting in a vacant and funded post.
1.13 The Applicant was therefore not covered by Resolution 8 of 2001.
1.14 The parties accordingly require a correct interpretation of Resolution 8 of 2001.
D. ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.15 A dispute regarding the interpretation of a collective agreement exists when the parties disagree over the meaning of a particular provision, and a dispute over the application of a collective agreement applies to a particular set of facts or circumstances.
1.16 In this matter the dispute is about the application of a collective agreement as there are facts which had occurred and the Applicant is dissatisfied about the application of the collective agreement to the facts.
1.17 There is no dispute that collective agreement 8 of 2001 applies to the Applicant. Clause 4 of the agreement covers the scope of its application to the Applicant.
1.18 The applicable resolution in this matter concerns the application of the provisions of Resolution 8 of 2001 of the ELRC.
1.19 The Resolution also refers to PSCBC Resolution no 9 of 2001. It provides that “Employees appointed, in writing, by the Executive Authority or his or her delegated nominee shall be paid an acting allowance to act in that post provided that: 5.1.1 The post is a vacant and funded post, and 5.1.2 the period of appointment is longer than 6 weeks”.
1.20 Annexure A of Resolution 8 of 2001 provides as follows :
“ 1) an educator, complying with the minimum requirements in paragraph 2 (2) OF Chapter B of the Personnel Administration Measures, shall be appointed in writing by the employer, to act, and
2) an educator may only be appointed to act in a higher vacant and funded post that is one post level higher than his/her current position”.
1.21 Clause 3 provides that within 14 days of notification by the employer, the Council of a Further Education and Training institution shall be requested to recommend to the employer, the educator to be appointed to act in a higher vacant and funded post.
1.22 Clause 4 provides that in extraordinary circumstances the employer may deviate from clause 2.
1.23 Clause 5.2 provides that an acting allowance will be paid only to an educator who acts;
5.1 …, and
5.2 If the period of appointment is longer than six weeks, but limited to a maximum of twelve months.
1.24 The Applicant submitted that she was appointed by the then Campus Manager for the Lichtenburg Campus. She acted as HOD of Business Studies for three years and six months.
1.25 She did not receive a letter of appointment. She had made numerous enquiries and lodged a grievance in this regard.
1.26 These facts are not in dispute. The Respondent submitted that due processes had not been followed and that the post was not vacant and funded in terms of Resolution 8 of 2001.
1.27 The submissions of the Respondent are not convincing because there is a letter from the HR department acknowledging that the Applicant’s dispute has been received and was forwarded to the College Council. There was no indication from the College Council that the grievance had been considered and the outcome is to either pay the acting allowance or not to pay the acting allowance.
1.28 The Respondent is also directed to the purpose of the Collective Agreement 8 of 2001, which is to determine a policy on acting allowance.
1.29 The parties to the agreement also noted with concern the absence, over the years, of payment of acting allowances to educators.
1.30 There is provision for deviation from the provisions of the agreement by the Respondent and it manifested on two occasions. The first was to fail to formalize by making an appointment as requested by the employer, and secondly the Respondent condoned the deviation by asking the Applicant to act in a post that was two levels higher that her post.
1.31 I have already stated that the agreement is not static because it makes provision for deviating from its provisions. I am inclined to agree with the Applicant that the Respondent breached the provisions of the resolution and should pay her the acting allowance.
1.32 I am convinced that the Applicant was acting in the position as she was the HOD a post that is higher than that of Senior Lecturer. This submission was not disputed by the Respondent.
1.33 I am therefore convinced that the Applicant has established that she was acting as the Head of the Department, Business Studies, and that she is entitled to be paid the acting allowance.
1.34 The Respondent violated the provisions of the resolution by not paying the Applicant the acting allowance, and I find that even though the amount due to the Applicant is more than payment for a period of twelve months, there is no justifiable reason not to pay her the acting allowance, because she had actually performed the functions.
1.35 Clause 7 of annexure A provides a formula to calculate the acting allowance. It is the difference between the Applicant’s (January 2010 to May 2013) salary notch , and the commencing notch of the higher post (Head of Department, January 2010 to May 2013)
1.36 The Applicant’s notch during 2013 was R 200 532. I also required the commencing notch of the Head of Department from January 2010 to May 2013, which has not been provided.
In the circumstances I make the following order
1.37 The Applicant is entitled to receive the benefits in terms of ELRC Resolution 8 of 2001.
1.38 The Applicant is entitled to the acting allowance calculated in terms of clause 7 of Annexure A to Resolution 8 of 2001, for the whole period that she had acted.
1.39 I have not been provided with the salary notch of the Head of Department between January 2010 and May 3013 in order to calculate the amounts, and the Applicant is directed to quantify the amount to be paid within 30 days from 17 November 2016 and submit to the Respondent for payment.
1.40 The Respondent is ordered to pay the pro rata acting allowance on or before 31 January 2017.
1.41 Should the parties disagree on the amount, the case must be set down for a quantification order.
1.42 There is no order as to costs