Case Number: PSES 570-17/18GP
Applicant: N Mpofu & 3 Others
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Provision of Benefits
Venue: , Gauteng Department of Education, Old Hebron College, Klipgat Road, Mabopane.
Award Date: 5 July 2018
Arbitrator: Trevor Wilkes
Case Number: PSES 570-17/18GP
Commissioner: Trevor Wilkes
Date of Award: 05 July 2018
In the MATTER between
N Mpofu & 3 Others
Department of Education-Gauteng
Union/Applicant’s representative: Miss Magoro; Miss Nkoatse; Miss Makubela
Respondent’s representative: Mr Mbonde
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down for arbitration on 4 June 2018 at 9h00 at the Tshwane West District Office, Gauteng Department of Education, Old Hebron College, Klipgat Road, Mabopane.
2. The applicants were represented as follows: Miss Magoro an attorney appeared for the first applicant; Miss Nkoatse from the PSA UNION appeared for applicants Matsane and Rakubu and Miss Makubela also from PSA represented applicant Mohlala. Mr Nbonde an labour relations officer appeared for the respondent.
3. I explained that an adversarial approach would be taken because the applicants and respondent were represented by lawyers and seasoned representatives.
4. A point in limine was raised by the respondent which was disposed of ex tempore. I ruled that applicants Matsane and Rakubu, being government employees and not educators appointed under the Employment of Educators Act, and therefore were not parties to the Collective Agreement which was not extended to other government employees. See Education Labour relations Council Collective Agreement 6 of 2016:
“6. Constitutional scope
The registered scope of the Council extends to the State in its capacity as employer and those employees in respect of which the Employment of Educators Act, 1998, applies.”
5. In terms of Part C of the Education Labour relations Council Collective Agreement 6 of 2016 “Dispute resolution Procedures Clause 46, I joined Miss Mohlala as fourth applicant because her dispute related to the same facts and employer and period and therefore she had a direct and substantial interest in the proceedings.
6. Because she had not referred her dispute, she submitted a condonation application and I condoned her later referral because I was satisfied that she had shown good cause because she had been serious about pursuing her rights and had been present throughout the proceedings and because none of the other parties had any objection and there was no prejudice if this was done.
7. Evidence in chief was explained, including documentary evidence as was the onus of proof and rights of cross examination.
8. The proceedings were digitally recorded.
9. The parties by agreement submitted written closing arguments on 11 June 2018.
10. The applicants had been appointed by the respondent as educators and were posted at the Filadelfia Secondary School for learners with special needs.
11. The school managed several hostels for learners and educators were utilised as hostel supervisors in respect of which they were paid an allowance which forms the subject matter of this dispute.
12. The applicants have referred an unfair labour practice dispute relating to payment of a benefit namely, the hostel allowance.
ISSUE TO BE DECIDED
13. I must decide whether the applicants had been subjected to an unfair act or omission of the respondent involving the non-payment of a benefit namely a hostel allowance.
14. In terms of the pre-arbitration minute, the issues had been substantially narrowed down and the following was common cause:
14.1 All the applicants were employed by the respondent;
14.2 The applicants were posted at the Filadelfia secondary school which had a hostel facility;
14.3 The payment of a hostel allowance was regulated by circular 47 of 2008 in terms of which the principal of Filadelfia school had authority to identify employees who were required to carry out hostel duties.
14.4 The applicable percentage payable in respect of hostel allowances was 15.5% of the basic salary of any such employee identified to carry out hostel duties.
15. The remaining factual dispute was whether the applicants had been appointed as hostel supervisors and were therefore entitled to payment of the hostel allowance for the period April to July 2017.
SURVEY OF EVIDENCE AND ARGUMENT
THE APPLICANTS’ CASE
16. Nkosinathi Mpofu the 1st applicant stated that he had been appointed as an educator since March 2015 and he was posted at the Filadelfia school.
17. Between April and July 2017, he and the other applicants had rendered hostel services to the Filadelfia school as they had done since their appointment, initially from January 2016 to December 2016. After some time, he and the other applicants had not been remunerated for the services rendered during April to July and because he and the other applicants had not been informed by anyone that their contract to render these services had not been renewed, they rendered these services after having received a roster from Mr. Shandu a deputy principal.
18. He was then informed that the other deputy principal Miss Mazibuko had not identified him and the other applicants for appointment during that period of April to July 2017 but that the situation would be rectified, and he and the other applicants therefore continued to render services during those 4 months.
19. He stated that he had been informed by Mr. Kgola , the principal on his return to the school that the situation would be taken up with the appropriate authorities and corrected which did not happen.
20. He and the other applicants had since August to December 2017 been paid in respect of the hostel services which he had been informed had now been approved by the respondent’s district office.
21. Lesetja Johannes Molala stated that he too was an educator appointed by the respondent and carried out his duties at the Philadelphia school. He too had rendered hostel services and he supported the evidence of the 1st applicant in all respects.
22. In closing the applicants requested that the respondent be ordered to confirm their appointment as hostel supervisors and pay them accordingly for the period April to July 2017.
THE RESPONDENT’S CASE
23. Victoria Mazibuko testified that she had been one of the deputy principals attached to the Filadelfia school where she had been appointed since 1988.
24. She stated that the procedure applicable to the appointment of personnel to render hostel services were that a deputy principal and, in this case, herself would identify suitable candidates who she would recommend to the respondent’s district office for approval after which payments would be made in respect of allowances to those appointed personnel.
26. During the period April to July 2017 she had seen fit to appoint teachers who had rendered teaching services after hours and on weekends without remuneration on the basis of their passion for the learners.
27. She also indicated that they had been some complaints which were not officially taken further against some of the applicants and that there had been some disruption by one of the applicant’s and another had not arrived for work for a certain period of time. The 1st applicant had indicated that he was not interested in rendering hostel services at some point to her.
28. They had rendered the hostel services for this period until a point when the applicants had according to her, intimidated them and they were no longer able to carry out the hostel functions. However, the teachers were paid in terms of the approved appointments by the respondent.
29. After a discussion with certain role players she had recommended that the applicants’ duties beginning in August 2017 and continue in December 2017 in respect of which they had been appointed and their appointments were approved. They had been paid for rendering these services.
30. She did not dispute that Mr. Shandu was also authorised to recommend candidates for appointment to hostel duties although according to her, the applicants had not been approved during the period April to July 2017.
31. The respondent requested that the applicants‘ referral be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
32. I found Nkosinathi Mpofu to be most evasive in relation to questions around the application of the circular which governed payment of hostel allowances.
33. Lesetja Johannes Molala testified with a somewhat better demeanour but was evasive in regard to signatures applicable to the documentation that had been handed in by the respective parties.
34. It was clear to me that Victoria Mazibuko called by the respondent was to some extent defensive although the documents which she testified to were not challenged.
35. The applicants’ evidence can be distilled as that they had during the 4 months in question carried out hostel duties and that they had done so because they were handed a roster by a deputy principal Mr. Shandu, which roster indicated their respective duties.
36. It was not challenged by the respondent that Mr. Shandu was a deputy principal and would therefore be entitled to make an appointment of personnel to carry out hostel duties.
37. However, because this roster had been drawn up by Mr. Shandu whom the applicants’ did not call to explain why the roster had been drawn up, the inference is that the alleged author of the roster would not have supported their case.
38. Moreover, the evidence of what Mr. Shandu and Mr. Kgola were alleged to have stated amounts to hearsay evidence that is unreliable. These individuals were not called as witneses Therefore, no weight and reliance could be attached to this hearsay
39. Against this, the rebuttal evidence of the respondent and documentary evidence, remained that volunteer teachers had been identified, approved by the respondent’s district office and therefore paid for hostel duties during that same period. This was the evidence of a duly appointed deputy principal who had the authority to make such appointments.
40. There was no dispute that Circular 47 of 2008 governed the payment of such allowances, entitlement to payment is dependent on the requirements of this circular and the evidence which I have accepted is that there was no appointment and approval in respect of the applicants.
41. It was not challenged that the applicants had carried out hostel duties during that period. Ostensibly therefore it appears to be unfair not to remunerate them.
42. However, they did so on their version because of the instructions of Mr. Shandu. Because he did not testified to explain his actions it is not possible for me to make a finding that the respondent was vicariously liable for his actions as an employee of the respondent.
43. I find that the applicants have not discharged the onus that there had been unfair conduct on the part of the respondent in relation to benefits.
44. The applicants have not been subjected to an unfair act or omission by the respondent involving the non-payment of a benefit namely, a hostel allowance.