Case Number: PSES 98-16/17 KZN
Applicant: NAPTOSA obo M.C. Barrett
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Interpretation of collective agreements
Award Date: 21 May 2017
Arbitrator: A. DEYZEL
Panelist: A. DEYZEL
Case No: PSES 98-16/17 KZN
Date: 21 May 2017
In the matter between
NAPTOSA obo M.C. Barrett Applicant
DEPARTMENT OF EDUCATION KZN Respondent
Applicant’s representative: Ms I. Dhanook
P.O. Box 35613
Telephone: 031 563 1966
Fax: 031 563 1611
First respondent’s representative: Mr M. Bejanath Department of Education KZN
Telephone: 083 5661 759
DETAILS OF HEARING AND REPRESENTATION
1. On 22 April 2015 the applicant referred a dispute to the ELRC. She alleged that the dispute was about the interpretation and application of Collective Agreement 1 of 2012.
2. The required conciliation meeting was held but the dispute could not be resolved and a certificate to such effect was issued.
3. The arbitration hearing was held on 4 November 2016 and 5 May 2017. At their request the parties were allowed to file written argument on or before 12 May 2017.
4. The applicant was represented by an official of NAPTOSA, Ms I. Dhanook.
5. The respondent (“the department”) was represented by an official in its employ, Mr M. Bejanath.
6. ELRC Collective Agreement 1 of 2012 (‘”the collective agreement”) was concluded and signed on 7 September 2012. The collective agreement introduced an occupation specific remuneration and career progression dispensation (“OSD”). It inter alia contained details of the OSD for education therapists employed in public education.
7. The department developed certain business rules for the implementation of the collective agreement. Employees to be translated to the OSD post and structure ought to have been handed a form referred to as Form A. Form A had to be distributed to all special schools within one week of PED’s receiving it and employees who received it had to fill it in and return it to the department within one week of receipt of the form.
8. According to paragraph 22.214.171.124 of the Business Rules Form A had to filled in by employees covered by the collective agreement. The employees who were not required to fill in the form included therapists who for their entire career and without interruption had been employed in the education sector. (community and internships excluded). It was only if the therapist‘s current experience in the education sector added to other relevant experience would place her in a higher translation category that she was required to submit proof of experience. The rest of them was not required to submit any supporting documents pertaining to service.
9. Therapists fell into three translation categories i.e
Category 1 : Post level 1 therapists who on 30 June 2010 had less than 10 years relevant experience;
Category 2 : Post level 1 therapist who 30 June 2010 had ten yours or more relavant service, but less than 20 years’ service.
Category 3. Post level 1 Therapist who on 30 June 2010 had more than 20 years’ experience.
10. The clause in dispute is clause 126.96.36.199. The said clause states that
“The recognition of relevant experience of the serving therapists shall be based on verified proof of such experience. Proof of such experience, where not available on the personnel record of an employee, must be submitted to the employer by 30 September 2012 in order to qualify for any recognition with effect from July 2010 in terms of this agreement. Where such proof is submitted after 30 September 2012, recognition for salary purposes, where provided for in the agreement, shall be with effect from the first day of the month following the month in which the proof was submitted by the employee.
11. The applicant at some stage practiced as a private occupational therapist. She was employed by the respondent on 9 April 2009.
12. Soon after the commencement of her employment applicant applied that her previous experience be recognised. Her efforts to have her previous experience recognised continued after the implementation of the collective agreement.
13. On 9 September 2015 the department recognised the applicant’s experience and commenced paying her at the applicable rate. The department did not implement the collective agreement with retrospective effect. The applicant was paid the higher rate with effect from 1 October 2015.
14. The applicant contended that, in her case, the collective agreement should be implemented with retrospective effect from 1 July 2010 and that she should be paid the difference between the amounts she would have been paid had the collective agreement been implemented with effect from 1 July 2010 and the amounts that she was actually paid. The respondent disputed this averment and contended that the applicant was only entitled to the higher rate of pay with effect from the first day of the month following the month in which proof of such experience was submitted.
15. The main underlying issue is whether the applicant submitted proof of verified relevant experience prior to 30 September 2012. In was not in dispute that if that is found to be a fact, the collective agreement should also in the case of the applicant, have been implemented from 1 July 2010.
SURVEY OF EVIDENCE AND ARGUMENT
16. The applicant gave evidence in support of her case and the respondent called Mr Cyril Govender, Mr Peffer and Ms Razia Alli as witnesses. Mr Peffer is the principal of the school. Prior to leaving the employ of the respondent Ms Alli was the head of the occupational therapy department at the school.
17. The submissions made on behalf of the parties appear from the written arguments.
18. It was submitted on behalf of the applicant that her version that she timeously applied for the recognition of her experience should be accepted and that she should be awarded the relief that she claimed.
19. It was submitted on behalf of the respondent that the applicant did not file verified proof of experience prior to 30 September 2012 and that she is accordingly not entitled to relief.
20. The evidence and arguments of the parties are further referred to in the Analysis of Evidence and Argument.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. It is convenient to analyse the evidence by reference to the sequence of events referred to by the applicant and the extent to which her version was disputed
22. In March 1992 the applicant was registered as a private practitioner. The registration number of her practice was 6611796 or 0066000661796. The first number was a number appearing on the applicant’s letterhead while the second number was quoted in the confirmatory letter of the Board of Healthcare Funders dated 4 September 2014 and the applicant’s affidavit of 9 September 2015, as the registration number issued to the applicant. It is obvious that the last six digits of the second number are the same as the digits of the first number. The department submitted that the difference between the two numbers was significant and that it justified requiring further proof. There was no evidence that the department tried to establish whether the one or the other or both of the practice numbers were valid practice numbers.
23. It was submitted on behalf of the department that in verifying proof of experience and the practice number it was found that the dates and practice numbers differed and that the department was justified in requesting verifiable proof. There was however no evidence that someone was veryfing proof of experience or that verifiable proof was requested after receipt of the last affidavit and the written confirmation of the Board of Health Care Funders. On the contrary the evidence proved on a balance of probabilities that the department accepted the documents as verified proof.
24. There was no evidence indicating that the department did anything to verify the applicant’s contention that she was involved in private practice despite her submitting tax statements proving that she earned an income in the years prior to her taking up employment with the department.
25. The applicant practiced as an occupational therapist included working at various schools as well as at the Ekuhlengeni Care Centre during the period 1 January 1994 to 14 April 2009. The applicant submitted tax returns to SARS in respect of the period 1999 to 14 April 2009. If there was ever doubt whether or not the applicant practiced as an occupational therapist particulars of her clients could have been obtained from her and a few phone calls could have verified whether her contention was true or not.
26. On 15 April 2009 the applicant was employed by respondent and placed at St Raphael Special School (“the school”) as an occupational therapist. She worked at the school until the arbitration hearing.
27. After her appointment and on 25 June 2009 the applicant applied that her previous service be recognised. The applicant handed a letter dated 25 June 2009 to the department in which she inter alia stated that she was registered as a private practitioner in March 1992 and that she continued practising up to March 2009 when she accepted the post at the school. The applicant’s letter dated 25 June 2009 was written on a letterhead reflecting her Practice Number as 6611796. According to the applicant she handed this letter to Ms Dube, an departmental official in its HR department.
28. The department responded by letter dated 7 June 2010 informing the applicant that her request for the recognition of her previous service could not at that stage be acceded to. The relevant part of the letter read as follows:
“I have to inform you that your request for the recognition of your previous experience cannot at this stage be acceded to because of the following:-
(a) You have not provided this office with a certificate of service for the period when you were under the employ of Life Care Group Holdings.
(b) ELRC Resolution 4 of 2003 does not provide for the granting of recognizable service for the period 1 July 1996 up to and including 31 March 2003.
Kindly note that the information contained in the document provided by SARS cannot be used for the purposes of such recognition of previous service.
Kindly therefore provide this office with the certificate (s) of service for the period(s) in question.’
29. On 19 April 2010 the applicant addressed a letter of complaint to Mr Peffer that inter alia read as follows:
I qualified in 1983 and have been working as an education therapist for 20 years and 5 months.
On 04 November 2009 I met with Ms Penny Dube. She recommended that I bring in certificates of service so my salary could be adjusted according to my experience. I handed in certificates for my first 3 places of employment. She processed it and my salary was adjusted.
To prove my work experience as an Occupational Therapist in the private sector I had to bring in my letter head and a letter from a school as proof that I had been doing Occupational Therapy with children with learning difficulties in my community. She would then motivate for it to be used a work experience as an occupational therapist.
I also had to get a certificate of service from Life Care Holdings where I worked as an occupational therapist for the period 7/95 to 7/99. Unfortunately a flood destroyed all their records and all I could present was payslips with a date of engagement and termination. I handed all of this in on 16 November 2009.
Since then it was an uphill battle. When I followed up in January 2010 Ms Dube told me that she no longer dealt with Umlazi District Schools and that I had to contact Nomusa Mseka.
I have been trying to set an appointment because we were told not to arrive without an appointment. Since January I have been trying telephonically and I am not exaggerating if I say maybe fifteen times and have not even once been able to get through.”
30. I infer that the applicant was a post level 1 educator with more than ten years’ service and that she qualified for translation to category 2 or 3 i.e. Education Therapist Grade 2 or 3 as the case may be. This explains why the department required proof of relevant experience and why there was no argument that there was no need for the department to require proof of service.
31. During the arbitration it was the department’s case that it requested the applicant on or about 9 September 2013 to submit an affidavit with information relating to her experience. The letter containing the request read as follows:
“Kindly submit an affidavit indicating the practice number as well as the periods (start date and end date) of your private practice.
On receipt of the above, your grade progression as a therapist will be reviewed further.”
32. The applicant contended that she never received the letter referred to in the previous paragraph. Had she received the letter she would have supplied the department with an affidavit containing the requested information. The department submitted that the applicant’s denial that she received this letter was improbable as the applicant responded within a month.
33. The department submitted that the applicant replied by affidavit attested on 9 October 2013 which read as follows:
“I hereby declare that I have worked as an Occupational Therapist in private practice as from 01/03/1992 up to 14/04/2009. In that time I did sessions at Ekhulengeni Care Centre and I did Occupational Therapy with learners with learner difficulties in most of the schools from Scottburgh, Umkomaas and Amanzimtoti. During this time I submitted tax returns as a provisional tax payer.”
34. On 3 September 2014 the Board of Healthcare Funders of Southern Africa issued a written confirmation that the applicant was registered as an Occupational Therapist. The applicant submitted this confirmation letter to the department with an affidavit deposed to on 9 September 2015. The relevant part of the confirmation letter read as follows:
“This serves to confirm that Mrs M C. Barrett has been registered on the Practice Code Numbering System as an Occupational Therapist since the 1st of January 1994; however the practice number has been rendered in-active with effect from 4 November 2011.
35. In early 2015 NAPTOSA became involved and it made several attempts to persuade the respondent to recognise the applicant’s experience. A meeting was held in September 2015.The applicant attended the meeting with Ms Dhanook and the department was represented by Mr Cyril Govender and Ms Mfeka. The need for the practice number to be confirmed by affidavit was discussed.
36. In September 2015 the applicant submitted a further affidavit deposed to on 9 September 2015. The confirmation letter was annexed to the affidavit. The applicant indicated in the affidavit that she practised as an occupational therapist until 15 April 2009 when her employment with the respondent commenced. The applicant’s Practice Number was mentioned in the last sentence of this affidavit. The affidavit was handed to Ms Mfeka.
37. Under cross-examination the applicant referred to the meeting held with the HR department. During this meeting the department’s representatives produced the letter dated 9 September 2013 referred to in paragraph 28 above. The applicant told Ms Dube that she knew about the letter and that she had responded to it.
38. The applicant contended that the increase in salary had to be implemented with retrospective effect from the date that her employment with the respondent commenced. The applicant’s colleagues had all received the back pay with retrospective effect.
39. Mr Cyril Govender in his evidence referred to the department’s request in the letter dated 9 September 2013. It inter alia requested that the applicant should provide an affidavit containing proof of her practice number. The applicant responded by affidavit dated 9 October 2013 but the response did not deal with the practice number. Mr Govender denied that the confirmation letter was attached as alleged by the applicant. The facts contained in confirmation letter was in any event not confirmed by affidavit as required.
40. Mr Govender testified that he did not phone the applicant to advise her to make an affidavit proving the practice number. It was practice not to phone an employee directly but to speak to an employee through the employee’s line manager. Mr Govender remembered speaking to Ms Alli about the matter Even though Mr Govender could not remember his precise words he remembered asking Ms Alli to covey to the applicant that she should confirm the practice number in an affidavit. Ms Alli denied Mr Govender’s evidence and testified that Mr Govender had direct telephonic contact with the applicant. If he wanted he could have telephonic contact with the applicant. Ms Alli denied that she was asked to tell the applicant to confirm the practice number in an affidavit.
41. The applicant denied that the department made her aware of the collective agreement and the need to apply to be translated to an OSD post. NAPTOSA was a party to the collective agreement and it was part of the respondent’s case that the union was responsible to inform its members about the collective agreement. Ms Alli testified that the union had a meeting with its members who was eligible for the translation referred to in the collective agreement and informed them of the collective agreement. The applicant did not attend the meeting but she (Ms Alli) informed the applicant what was discussed during the union meeting.
42. As indicated in paragraph 8 above the applicant had to submit Form A by 30 September 2012 for the translation to be effected with retrospective effect. The letters and affidavits that she submitted to the department prior to that in my view did not change the requirements of the collective agreement.
43. It appears from a reading of Form 1 that relevant experience had to be dealt with in the Form and supporting documents had to be attached. Registration as an occupational therapist had to be indicated. She also had to indicate her rank type. It did not appear from the evidence what the applicant did after the collective agreement was concluded on 7 September 2012.
44. 30 September 2012 went by and there was no evidence whether or not Form A was submitted. Nearly a year later and on 9 September 2013 the department requested the affidavit dealing with the applicant’s practice number and her experience. I infer from the fact that Form A was not requested that the Department had already received it.
45. The supporting documents differed on when the applicant’s private practice commenced. In the affidavit dated 9 October 2013 the applicant indicated that she commenced private practice on 1 March 1992 while in an affidavit dated 9 September 2014 it was indicated that it started on 1 January 1994. It appeared from the confirmation letter that it commenced on the earlier date.
46. In my view the department had sufficient proof of the duration of the applicants experience when it received the applicant’s affidavit dated 9 October 2013. Insofar as the department was of the view that it was necessary to have the applicant’s practice number, that had already been supplied on or about 25 June 2009. It is more probable than not that the practice number was in the personnel file relating to the applicant.
47. In all the circumstances the applicant should have been translated to her present rank with retrospective effect from 1 November 2013 i.e. the first day of the month following the applicant meeting the administrative requirements for such translation. See paragraph 10 above.
48. The respondent will accordingly be ordered to pay the applicant the difference between what she would have earned had she been translated to her present rank with effect from 1 November 2013 to date and the amount that she was actually paid in respect of such period.
49. The applicant attempted to calculate the amount due to her. The respondent’s representative indicated that the calculation was to his knowledge incorrect. Should the parties not be able to agree the amount due to the applicant the applicant is granted leave to apply for a quantification of the amount due to her in terms of the award.
(a) In terms of ELRC Collective Agreement 1 of 2012 the translation of the applicant, Ms Martha Catharina Barrett, to her present rank is to operate with retrospective effect from 1 November 2013.
(b) The respondent, the Department of Education KwaZulu-Natal is ordered to pay the applicant the difference between the remuneration and benefits she would have earned had she been translated to her present rank with effect from 1 November 2013 to date and the amount that she was actually paid in respect of that period.
(c) The amount referred to in paragraph (b) is to be paid to the applicant within 21 days of the respondent being notified of this award.
(d) Should the parties be unable to agree the amount referred to in paragraph (c) the applicant is granted leave to apply that the award be varied to include a quantification of the amount due.
DATED at DURBAN this 21st day of MAY 2017.