Case Number: PSES 438-16/17 KZN
Applicant: Amritha Sunichur
Respondent: DEPARTMENT OF EDUCATION – KZN
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Truro House, Durban
Award Date: 10 October 2017
Arbitrator: J.D. Vedan
Arbitrator: J.D. Vedan
Case Reference No.: PSES 438-16/17 KZN
Date of hearing: 26 September 2017
In the arbitration between:
Amritha Sunichur Applicant/Employee party
Department of Education - KZN Respondent/Employer party
Applicants’ representative: Arthi Singh
Tel: 084 504 0155
Respondent’s representative: A. Preethpaul
Tel: 083 446 2229
DETAILS OF HEARING AND REPRESENTATION:
1. The matter was held at the Durban Teachers Centre on 27 February 2017, Dokkies-KZN on 1 June 2017 and concluded at Truro House, Durban on 31 August 2017 at 10:00 am.
2. The Applicant was represented by Mrs A. Singh, an Attorney.
3. The Respondent was represented by Mr A. Preethpaul, its representative.
BACKGROUND TO THE DISPUTE:
4. The Applicant was appointed by the Respondent in a permanent position as an Educator in 1984. Her first placement was at the Newhaven Secondary School at Chatsworth, wherein she served the Respondent until approximately 1993, wherein she was transferred to the College Vale Primary School nearer to her home, wherein she served for a period of six months.
5. She was granted certain increments to her salary during this period, such as gender and race parity, and in 1987 after having completed an Honours Degree in Education, she was granted a higher salary notch.
6. The Applicant resigned from the Respondent in 1993, as she wished to take care of her two minor children.
7. In 2006, she once again resumed service with the Respondent and was placed at the Pitlocry Primary School at Westville, Durban.
8. The genesis of the dispute lies herein. She alleges that she was placed on the incorrect salary scale, as the Department failed to take her previous service into account, as was the norm and practice in the Department. She had been given a new persal number.
9. Upon querying the matter with her then Principal, Mr G.T. Naidoo, she was reassured by him that upon his escalating the matter with the Respondent, he was informed that all was in order.
10. At first, she accepted this reassurance, but later received information from an Educator, in a similar position to her, that her incorrect notch was unfair, and this could be corrected by the Respondent.
11. Upon contacting the Department, she was asked to provide her old persal number, as it transpired that the Respondent could not locate her file.
12. Through her own arduous efforts, she managed to obtain the requisite information for the Respondent, including additional supporting documents. However the Respondent has failed to pay her on the correct scale to date, since she re-entered the service of the Respondent.
13. The dispute was referred in terms of Section 23 of the ELRC Constitution, being an enforcement/compliance dispute in terms of Section 23 of the said Constitution, and the jurisdiction of the Council is further supported by Section 33A of the LRA.
14. The Applicant is a post level one Educator and over the years has pursued the matter with the Respondent, with no success, although the Respondent through various officials conceded that she had indeed been wronged. It was only Mr Rajesh Singh, an official of the Department, who made an effort to rectify the situation.
15. The Respondent on the other hand, at this stage, argued that it does not have records of any correspondences referred to by the Applicant, nor a Certificate of Service. The Respondent argued that the Applicant had a reference number, but not a persal number for her alleged earlier years of service, as the persal number only came into effect in 1995. The Respondent is only required to keep records for seven years, thus all records have been destroyed. The Respondent does not have any records of her employment. Mr Preethpaul had been to the Applicant’s previous schools, and it was confirmed that she taught there, but there were no records.
16. The Applicant sought relief in the form of the Respondent complying with its own provisions contained in the P.A.M. document (Personnel Administrative Measures), Chapter B, clause 4.4, which states that when an educator resumes employment after a break-in-service, the educator must be placed at a salary level that was applicable at the time of resignation.
17. The Department was served on 19 October 2016 with a compliance document, and was given fourteen days to comply with the provisions relating to salary, but failed to do so.
18. Although there may have been amendments and upgrades to the P.A.M. over the years, clause 4.4 has remained the same. Although the Applicant has received increments based on her incorrect notch for the past eleven years, the Applicant requested that her salary be adjusted to its correct level.
ISSUE TO BE DECIDED:
19. Whether the Respondent failed to place the Applicant on the correct salary notch, and if so, arising therefore whether the Applicant should be placed on the correct salary notch, and receive back pay for the short payment of salary and increments since June 2006 to date?
20. The Applicant confirmed the facts set out above relating to herself. She testified that whilst at Newhaven Secondary, she would have received three cycles of substantial increments. After she resigned from service, she received her pension payment.
21. When she resumed her representations to the Respondent to be placed on the correct level, she was asked for evidence that she had received a salary from the Department, as well as her resignation number, which she provided. She was then told that she needed a Certificate of Service, which she did not have a copy of, and she was further told that such certificates were not issued by the Department in the period prior to her resignation.
22. The Applicant’s witnesses were Vengtas Appiah Rama, and Sarojini Singh, two retired and venerable former Educators. Rama testified that the Applicant has been appointed to Newhaven Secondary School in 1984. He was the Principal of the school at that time, and when he left in 1991, she was still teaching there. She was an English teacher, and was dedicated to her job.
23. Sarojini Singh testified that she was a Head of Department at College Vale Primary School when the Applicant taught at College Vale Primary during 1993. The Applicant resigned because she had to take care of her children. She was aware that payment numbers changed, as at first it was a salary number and then it became a persal number. She had not heard of a Certificate of Service. She retired in August 2008. The Applicant was an excellent educator.
24. Rajesh Singh, a Principal Personnel Officer was the only witness who testified for the respondent. He works with Human Resources matters, salaries and promotions.
25. He testified that he was familiar with the Applicant’s matter, which was brought to his attention on 28 November 2016. The Respondent made several attempts to obtain the Applicant’s records, however the records were destroyed. According to archive rules, after a period of seven years, the records are destroyed.
26. He went to the Pensions Department, and obtained a print-out of the Applicant’s last notch when she exited the service. A positive submission was prepared for the Head of Department, and it went through the various channels for approval. However one of the officials rejected the submission. The reason cited was that the Applicant could not produce a Certificate of Service. However he managed to trace a file from the Finance Division that shows the Applicant was appointed on 1 January 1984 by the Department, and there is also an advice of appointment/staff change form issued by the Department, which shows this (Annexure “E”). The Applicant was paid a salary for January 1994, although she resigned with effect from 31 December 1993, however this over-payment was recovered by the Department.
27. The witness conceded that the Applicant’s past service should be recognised, and that the salary level she was placed on was incorrect. He stated that the non-provision of a Certificate of Service should not be a hindrance to the Applicant receiving her correct salary.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
28. The Council has jurisdiction in this matter in that all the relevant rules, policies and Collective Agreements form an integral part of the contract of all Educators, and the General Secretary of the Council has the power to enforce compliance, and therefore the matter has been referred to arbitration in terms of Section 23 of the ELRC Constitution. Compliance is also enforced in terms of Section 33A of the LRA.
29. The Respondent has not complied with the need to rectify the incorrectness in the salary level of the Applicant, and has not taken steps to rectify the situation.
30. At first, the Respondent stated that there was no documentary evidence to back up the fact that the Applicant worked at Newhaven Secondary School, and thereafter at College Vale Primary School. However the Applicant’s evidence, supported by the evidence of the two retired Educators, namely Rama and Singh put this issue beyond doubt. There was also documentary evidence produced to this effect, and the Respondent in fact conceded that she has worked at those schools. The Applicant’s witnesses had managed to unearth documents, namely Annexure “E”, which proves that the Applicant has commenced employment for the Respondent on 1 January 1984, and had ceased employment on 31 December 1993, and then recommenced on 1 June 2006.
31. It is a given fact that the Respondent is bound by a provision contained in the P.A.M. (Personnel Administrative Measures), Chapter B, clause 4.4, which states that when an Educators resumes service after a break in service, the Educator must be placed on the same salary scale.
32. It would seem that the Respondent had a submission drawn up for the Head of Department, which had to follow various channels, and that one official in the chain had objected to the Applicant receiving what was due to her, on the basis that she had not furnished a Certificate of Service. A Certificate of Service is merely a document given to an employee by an employer, in which the employer sets out the employee’s full name, the name and address of the employer, a description of any Council or Sectoral employment standard by which the employer’s business is covered, the date of commencement and date of termination of the employee, a title of the job or brief description for which the employee was employed at the date of termination, the renumeration of the employee at the date of termination, and finally if the employee so requests the reason for termination. This is in terms of Section 42 of the Basic Conditions of Employment Act. This Act only came into force on 1 December 1998. The Applicant left the service of the Respondent on 31 December 1993.
33. Be that as it may, even if it was a requirement at that stage for the Applicant to have a Certificate of Service, the onus was on the Respondent to provide her with such a Certificate of Service. There is ample proof beyond doubt that the Applicant worked for the Respondent for that period, and a Certificate of Service is not required in this matter.
34. It is my view that the Applicant has been under paid in this matter, and that the Applicant is entitled to the salary notch that she would have been on, as from 1 June 2006, and that the Respondent is obliged to place the Applicant on the correct salary notch, and back pay her from 1 June 2006 to present date, and thereafter pay her according to the correct salary notch. The date that I have taken as the date she recommenced employment is 1 June 2006, as stated on her salary advice, Annexure “D”, which she received from the Respondent.
35. The Respondent was requested to provide an estimation of the back pay, should the Applicant be successful in obtaining an award in her favour, and have provided an estimation of R564 062-00. They have indicated that this is the gross amount, and may vary due to any audit that may be conducted by the Department, or if there are any errors in the calculation of the said amount.
36. The Applicant on the other hand has countered that the Respondent has failed to verify how the figure is arrived at, and has not given an indication in the variables used in arriving at the amount. The claim is also for the adjustment of the Applicant’s salary going forward.
37. I have taken all this into consideration, and am mindful of the fact that there could well be further deliberations and consensus about the amount owed.
38. However I also take into account that the Respondent has supplied me with the figure of R564 062-00, and has indicated that this is subject to any lawful deductions. Based on the fact that the Respondent’s witness, Singh, was truthful and honest in his evidence, and undertook to calculate the said arrears, with the assistance of his department, I will accept the above figure for the purposes of this award. However this will not preclude the Applicant from any further claims that she may make with regards to any amounts due.
I make the following award:
39. The Applicant’s claim succeeds;
40. The Applicant is awarded back pay in the amount of R564 062-00 (five hundred and sixty four thousand and sixty two rand);
41. The Applicant is to be placed on the correct salary notch, back dated to 1 June 2006;
42. The Respondent is directed to pay the Applicant the amount of R564 062-00 (five hundred and sixty four thousand and sixty two rand) within twenty-one days of being notified of this award;
43. The Respondent is further directed to adjust the Applicant’s salary and variables, with immediate effect, and pay her accordingly;
44. There is no order as to costs.