Case Number: ELRC105-16/17GP
Applicant: MOEKETSI E K
Respondent: 1st Respondent SOUTH WEST GAUTENG TVET COLLEGE and 2nd Respondent Head of Department , Department of Higher Education
Issue: Unfair Labour Practice - Provision of Benefits
Venue: South West Gauteng TVET College, Soweto
Award Date: 9 June 2017
Arbitrator: L. Naidoo
Case Number: ELRC105-16/17GP
Commissioner: L. Naidoo
Date of Ruling: 9 June 2017
In the ARBITRATION between
MOEKETSI E K
SOUTH WEST GAUTENG TVET COLLEGE
HEAD OF DEPARTMENT, DEPARTMENT OF HIGHER EDUCATION & TRAINING
Union/Applicant’s representative: Mr RP Sefatsa
E-mail: email@example.com/ firstname.lastname@example.org
Respondent’s representative: Mr TMZ Mahasha
Respondent’s address: Private Bag X33
Telefax: 011 984 0136/ 086 665 6133
E-mail: email@example.com / carneys@1st respondent.co.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down for arbitration, which was held at the South West Gauteng TVET College, situated in Soweto, at 09h00 on 24 May 2017.
2. These proceedings were digitally recorded by the ELRC.
3. The applicant was present and represented by Mr RP Sefatsa.
4. The respondents were represented by Mr TMZ Mahasha. Prior to commencing with the matter, the applicants representative raised a point in limine concerning the respondents bundle, specifically pages 1-5 of the respondent’s bundle marked B1 which document comprised - the applicant’s contract of employment. The applicant representative argued that the contract did not represent the entire agreement as pages were omitted. He concluded by requesting the ruling on which of the 2 contracts submitted were valid. The respondent’s representative argued vehemently that the contract in their bundle was the valid contract entered into between the parties - and pointed out that it had been initialled by both parties as opposed to the contract that appeared in the applicants bundle; he then requested a short adjournment and the issue was eventually rectified - when he (the respondent’s representative) produced a completed contract of employment; which document was confirmed by the applicant as being the contract she had entered into with the respondent.
ISSUE TO BE DECIDED
5. I am required to decide, whether or not the applicant is entitled to relief claimed i.e. payment of the difference in her salary with effect from 23 February 2015 - 31 December 2016 in terms of Clause 69.5 of the ELRC Constitution.
6. Clause 69.5 states as follows:
“69.5 The General Secretary may on own discretion or on request of a party refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a Panellist appointed by the Council or the CCMA, as the case may be.”
BACKGROUND TO THE ISSUE
7. The applicant commenced employment on 23 February 2015. She was employed as a lecturer at SWGC (the 1st respondent), on post level 1, basic education.
8. She earned a salary of R16 573.75 (sixteen thousand five hundred and seventy three rand and seventy five cents) per month. She argued that she ought to have been earning a salary of R25 308.25 (twenty five thousand three hundred and eight rand and twenty five) per month in line with the fact that prior to accepting the PL1 post with the 1st respondent she had been on PL3 with the Department of Basic Education (DBE).
9. On 25 March 2015 the applicant became aware of the non-compliance when she did not receive a salary of R25 308.25 (twenty five thousand three hundred and eight rand and twenty five).
10. On 8 February 2017 the applicant referred a non-payment of salary dispute to the ELRC.
11. The applicant concluded by stating that she ceased employment for the 1st respondent on 9 January 2017 and that as relief she sought to be paid the difference in her remuneration with effect from 23 February 2015 up to and including 31 December 2016. The difference in her remuneration was calculated at R8 734.50 (eight thousand seven hundred and thirty four rand and fifty cents) for the period of twenty two (22) months. The parties confirmed the calculation of the difference to be - one hundred and ninety two thousand, one hundred and fifty nine rand only (R192 159.00)
SURVEY OF THE EVIDENCE AND ARGUMENT
The Applicant’s submissions
The applicant testified as follows:
12. When she resigned from DBE in 2014 - she had been earning a salary of R25 308.25. On 23 February 2015 she commenced employment with 1st respondent. On 25 March 2015 when she received a salary of R16 573.75 she was concerned and addressed the issue of her short payment with the HoD (Mr Vusi Maseko) and requested to be paid in accordance with the college regulations. The matter was eventually escalated to human resources (Mr Tebogo Mophaleng) and she was again informed that she was paid according to the terms and conditions of the college. She then made an appointment with the campus manager (Mr Johannes Makola) concerning the issue wherein she was given the very same response.
13. She explained that when she signed the contract it was clear that she would be remunerated in line with DPSA and furthermore when she investigated the matter she was referred to the policies of the ELRC specifically Collective Agreement 1 of 2010. At that point she communicated her anxieties with the Deputy Principal Administrator (Mr Schelemmer) - he then showed her a NAPTOSA news flash document on pages 10-12 of their bundle marked “A2”. She went on to say that based on that document he too was in agreement that she ought to have been back paid for the shortfall in her salary.
14. During cross examination the respondent’s represented asked the applicant to confirm whether she was appointed on PL1 on 23 February 2015. The applicant confirmed same. He then put it to her that she was being paid according to PL1. The applicant confirmed that she was being paid R16 573.75 according to the 1st respondent however she was not supposed to have been paid that salary according to the Council. He then followed up the question and asked the applicant to explain on what salary level was she had been paid. The applicant responded that she was not sure as she had asked the college for guidance on that issue and none was forthcoming.
15. He then asked her to explain when she approached Mr Schlemmer - how many issues did she request assistance with. She explained that there were 2 issues she sought assistance with, firstly the bonus that she was entitled to after graduation and the second issue was the back pay which he failed to deal with. He then referred her to page 22 of the bundle marked A1 and asked her whether she was supposed to have been paid accordingly. The applicant confirmed same. He then asked the applicant to explain what informed her of that position - the applicant replied: “your contract of employment states DPSA and the Collective Agreement - states parity of salaries”.
16. He then asked her to explain the source she relies on regarding DPSA. The applicant submitted that she relied on the Personnel Administrative Measures (PAM) document. He then probed and asked her to explain where in the PAM document - it specifically states that she is entitled to receive a salary as stipulated on page 22 and not what is reflected on page 23 of the bundle marked A1. The applicant then referred to page 2 of the bundle marked A3 and read into the record clause B.18.104.22.168 which states: “the applicable salary position to which an educator should be appointed after a break in service is always determined in terms of the salary position which he/she occupied before he break in service. This includes a situation where the person occupied a non-educator post in the public service before the break in service.”
17. The respondent’s representative then reiterated the question posed and put it to the applicant that the document does not state that she must be paid according to page 22 but that her salary must still be determined. The applicant then re-read clause B.8.5 .1.1 and submitted that she disagreed with his interpretation as the document was a government gazette and therefore must be adhered to. He then referred her to the cover page of bundle marked A3 and asked her to read the date that appeared on the top right hand corner. The applicant did so and read into the record “12 February 2016”. He then put it to the applicant that the document was only passed on 12 February 2016 and not on the date that she commenced employment with the 1st respondent. The applicant confirmed same. He then put it further to the applicant that she was not appointed in terms of the EEA but in terms of the FET. The applicant disputed that and referred to the ELRC Collective Agreement in this regard - where she proceeded to read into the record the cover page which stipulated: “establishing parity of salaries of lecturing staff and office-based lecturers employed in the public further education and training colleges with salaries of educators in public basic education” thereafter reference was made to page 5, specifically clause 4.2.4 which stipulates : “The same salary measure applicable to educators with regard to promotion, recognition of previous experience, determination of salary after a break in service, an acting allowance, recognition of improvement of qualification etc. shall be applicable until a new salary structure has been developed.”
18. The respondent’s representative then put it to the applicant that Mr Schlemmer had never said that she must be paid. The applicant responded: “Mr Schlemmer can be called”. He then referred her to page 28 of the bundle marked A1 and read into record the applicant’s referral form to the ELRC - he then put it to the applicant that nowhere in her referral did she state that Mr Schlemmer agreed that she would be paid. The applicant submitted that may have overlooked at the time. Reference was then made to page 10 of the bundle marked B2 - the respondent’s representative then put it to the applicant that she had agreed to the contract as it was initialled. The applicant confirmed same. He went on to say that she had even agreed to the salary. The applicant submitted that she did not know what her salary would be at the time as it was not specified. However she went on to say that as a government employee she knew what she ought to have been receiving a salary in line with the guidelines received. He concluded by asking her what post did she apply for. The applicant confirmed that she applied for PL1. He then put it to her “so you knew she had applied For PL1 however you did not expect the salary”. The applicant maintained that on the contract of employment her remuneration was not specified.
19. During re-examination the applicant’s representative referred to page 1 of the bundle marked A3 and asked the applicant whether or not she was aware that the government gazette had amended the Act in February 2016 and it was not the date on which the Act was promulgated. At that point the respondent’s representative objected arguing that the re-examination must be dealing with issues raised during cross examination - however the objection was dismissed as he addressed the very issue during cross-examination.
The Respondent’s submissions
20. The respondent’s representative argued that the applicant was appointed on a three (3) month contract with effect from 23 February 2015 - 23 May 2015 on PL1 - which agreement the applicant had signed in confirmation of - therefore the respondent had extended same until December 2016. He submitted further that he confirmed that the applicant came from the DBE on PL3 and that the applicant had been remunerated with effect from 23 February 2015 on PL1. He went on to say that he disputed the applicant was entitled to be paid according to PL3 due to her previous experience and requested that specific legislation be submitted which unequivocally states that the applicant ought to have been remunerated on PL3.
21. He confirmed that the respondent did not intend calling any witnesses in the matter.
Analysis of the argument
22. According to the ELRC Collective Agreement No. 1 of 2010 : Establishing parity of salaries of lecturing staff and office-based lecturers employed in the public further education and training colleges with salaries of educators in public basic education : specifically clauses 1 and 2 of the said agreement, it is evident that the purpose of the Collective Agreement is to establish parity between the salaries of lecturing staff and office-based lecturers employed at the Public Further Education and Training Colleges (FETC) and those educators employed in public basic education. Furthermore the Collective Agreement itself is binding on the FET Colleges represented by the FETCEO as the employer; (see sub-clause 2.1) and all lecturers previously employed in terms of the Employment of Educators Act and transferred to the employ of colleges on 1 January 2008… (See sub-clause 2.3).
23. In terms of section 23 of the Labour Relations Act (LRA): Legal effect of collective agreement:
“(1) A collective agreement binds -
(a) the parties to the collective agreement;
(b) each party to the collective agreement and the members of every other party to the collective agreement, in so far as the provisions are applicable between them;
(c) the members of a registered trade union and the employers who are members of a registered employers organisation that are party to the collective agreement if the collective agreement regulates-
(i) terms and conditions of employment; or
(ii) the conduct of the employers in relation to their employees or the conduct of the employees in
relation to their employers;
(d) employees who are not members of the registered trade union or trade unions party to the agreement if-
(i) the employees are identified in the agreement;
(ii) the agreement expressly binds the employees; and
(iii) that trade union or those trade unions have as their members the majority of employees employed by the employer in the workplace.
(2) A collective agreement binds for the whole period of the collective agreement every person bound in terms of sub-section (1) (c) who was a member at the time it became binding, or who becomes a member after it became binding, whether or not that person continues to be a member of the registered trade union or registered employer’s organisation for the duration of the collective agreement.
(3) Where applicable, a collective agreement varies any contract of employment between an employee
and employer who are both bound by the collective agreement.
(4) Unless the collective agreement provides otherwise, any party to a collective agreement that is
concluded for an indefinite period may terminate the agreement by giving reasonable notice in writing
to the other parties.”
24. According to the LRA a collective agreement is binding on the parties to the agreement - to the extent that it can vary any contract of employment entered into between the parties. The collective agreement was not disputed by the respondent’s representative and it is evident from page 9 of the said agreement - that it was signed on behalf of the State and Colleges as employer.
25. Clause 4.2.4 of the Collective agreement unequivocally states that the same salary measure applicable to educators with regard to… recognition of previous experience, determination of salary after a break in service… shall be applicable until a new salary structure has been developed (underlining is for my emphasis). The Collective agreement goes on to deal with the implementation of measures - wherein 3 categories of lecturers are defined. There are 3 steps applied to the each individual category, the pertinent one to this particular matter is the recognition of experience which states :
“(a) only continuous (uninterrupted) service in the employ of the college or the state and the college, as on 31 March 2010, is taken into account.
(b) one additional notch for every completed 36 months of service is added to the notch determined …”
26. There was no argument put forth by the respondent concerning the development of a “new salary structure”. Therefore in terms of clause 4.2.4 the same salary measure applicable to educators shall be applicable – ‘shall’ is a peremptory word in legislation which creates a mandatory provision. In Minister of Environmental Affairs & Tourism v Pepper Bay Fishing (Pty) Ltd 2004 (1) SA 308 (SCA), the Supreme Court of Appeal confirmed the ‘general principle’ that ‘language of a predominantly imperative nature such as ‘shall’ is to be construed as peremptory rather than directory unless there are circumstance which negate this construction’. (Administrative Law).
27. Based on the fact that there is a collective agreement that regulates the salary structure I find that the applicant ought to have been remunerated accordingly.
28. The 1st respondent is ordered to pay the applicant one hundred and ninety two thousand, one hundred and fifty nine rand only (R192 159.00 by close of business on Friday, 30 June 2017.
29. No order as to costs.
Commissioner: L. Naidoo