Case Number: PSES651-18/19EC
Applicant: SAOU obo N.E. Meistre
Respondent: Department of Education Eastern Cape
Award Date: 8 February 2019
Arbitrator: East London (East London Leadership Institute offices)
Case Number: PSES651-18/19EC
In the matter between
SAOU obo N.E. Meistre Applicant
Eastern Cape Department of Education First Respondent
Appearances: For the applicant: Ms E. Hart (SAOU);
For the respondent: Mr T.W. Hena;
Arbitrator: M.A. Nozigqwaba
Heard: 28 January 2019
Delivered: 08 February 2019
Summary: Labour Relations Act 66 of 1995, as amended, section 24(2)
Interpretation and application
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration was heard in East London (East London Leadership Institute offices) on 28 January 2019. Ms N.E. Meistre (applicant) was represented by a SAOU official, Ms E. Hart. Eastern Department of Education (respondent) was represented by its official, Mr T.W. Hena.
ISSUE TO BE DECIDED
2. The dispute is about interpretation and application of the ELRC Collective Agreement 1 of 2008. The applicant’s claim is that, in terms of this collective agreement read with PAM, the respondent is supposed to have paid her money in recognition of her previous service prior to her being absorbed as an educator on indefinite basis. I am supposed to decide whether, in terms of this collective agreement, the respondent should be ordered to pay the money she is claiming.
BACKGROUND TO THE ISSUE
3. The applicant, a qualified educator (REQV14), was appointed by the respondent on successive fixed term contracts as an educator at Stirling High School for the following periods:
01 May 2010 to 31 December 2010 (8 months)
11 March 2011 to 31 December 2011 (9 months)
12 January 2012 to 31 December 2012 (12 months)
18 April 2013 to 28 February 2014 (11 months)
The total months of fixed term contracts being 40 months, which is just above to 3 years teaching experience.
4. On 01 March 2014 the applicant was appointed by the respondent on an indefinite employment contract as a PL 1 educator.
5. The applicant participated annually in the IQMS evaluation even during the fixed term contract periods but never received salary progression as she was rarely appointed for the full 12 months cycle of evaluation although she continuously worked at Stirling and was paid by the School Governing Body (SGB) for the other periods that she was not paid by the respondent.
6. The applicant was appointed on salary code 085 which is the starting salary of a PL1 educator who has no experience. This was done in terms of clause B.188.8.131.52 of Personnel Administrative Measure, as amended (PAM).
7. On 26 September 2018 the applicant lodged a grievance with the respondent but she never received any reply.
SURVEY OF THE EVIDENCE AND ARGUMENTS
8. The applicant’s submission is that prior to being appointed on an indefinite basis, on 01 March 2014, she was a temporal educator placed at Stirling for a period of 40 months. Her teaching qualification is REQV 14 and she possessed it before she commenced to work for the respondent on 01 May 2010. She also participated in IQMS for this period but was never granted salary progression as she never completed the requisite full 12 months cycle of evaluation. In the short periods in between her successive contracts she would continue to teach and be paid by the SGB. The 40 months experience should be acknowledged and she should be regarded as having done IQMS.
9. The applicant thus submits that her circumstances and the provisions of the ELRC Collective Agreement 1 of 2008 (the Agreement), read with clauses B.184.108.40.206 and B.220.127.116.11 of PAM, makes her to qualify for at least 3 notches as from 01 March 2014, inclusive annual of bonuses.
10. Clause 5.5.1 of the Agreement provides as follows: ‘The introduction of a two-yearly pay progression dispensation within the limits of the relevant salary scale on condition that the relevant employee has maintained a satisfactory level of performance as set out in the performance management system (PMS) that will be applicable at the time when such employee becomes eligible for pay progression. The biennial pay progression will be equal to 3 months notches (3%).’ Clause 5.5.2 provides that the two yearly progression will be based on satisfactory performance in terms of the IQMS to be conducted at school level by the SDT on an annual basis. Another condition for one to qualify for the pay progression as mentioned in clause 5.5.3 is that the educator concerned has to complete 24 months of satisfactory service and that she has not reached the maximum of the applicable scale.
11. Clause B.18.104.22.168 of PAM provides as follows: ‘The starting salary of PL 1 educator with REQV 14, 15, 16 or 17 and who has no experience (neither in nor outside public education) is notch 85.’ Clause B.22.214.171.124 provides that : ‘After having completed a 24 month employment period, an eligible first year educator will qualify for pay progression.’
12. Her prayer is that she be paid the money owed to her in terms of the Agreement by not later than 31 March 2019. The outstanding payment due to the applicant in terms of her claim is calculated in pages 24 to 25 of the applicant’s bundle. The calculation was done for the period from 01 March 2014 to 31 January 2019 and is reflected as R41 847.00 in page 25. Upon factoring in February 2019 pay the outstanding amount increased to R42 530.50.
13. The respondent’s representative indicated that the respondent is not disputing the applicant’s claim. He acknowledged that the applicant is indeed owed what she says she is owed. He also acknowledged and accepted the outstanding amount due to the applicant as calculated and appearing in paragraph 12 above and in pages 24 to 25 of the applicant’s bundle.
ANALYSIS OF EVIDENCE AND ARGUMENTS
14. The applicant did have the requisite 24 months teaching experience when she was employed as PL 1 educator on an indefinite basis on 01 March 2014. She had attained such experience during her 40 months tenure as a temporal educator from 01 May 2010 to 28 February 2014. In the periods in between the successive contracts she would be employed by the school’s governing body. She had done her IQMS for all those years. The failure to score her performance by the respondent was never because of any fault attributable to her. Because of this her performance is to be regarded as having been satisfactory. The applicant had already attained her REVQ14 when she stated to work for the respondent on 01 May 2010.
15. I find that the applicant did qualify for pay progression of 3 notches adjustments with effect from 01 March 2014. The respondent should pay her the difference between what she earned in the period from 01 March 2014 to 28 February 2019 and what she deserves to have earned upon the factoring in of the 3 notches adjustment. The difference in annual bonuses she received in the said period should also be factored in. The calculated amount, as accepted by the respondent, is R42 530.50.
16. I therefore make the following award:
16.1. The applicant qualified for pay progression of 3 notches with effect from 01 March 2014.
16.2. The respondent is thus ordered to pay the applicant the difference between what she earned and what she should have earned if her salary had been adjusted with the 3 notches pay progression. The said back pay from 01 March 2014 to 28 February 2019, inclusive of the difference in all applicable annual bonuses, is R42 530.50, minus any amount(s) the respondent will obliged by any applicable legislation to deduct.
16.3. The amount mentioned in paragraph 16.2 above should be paid to the applicant by no later than 31 March 2019.
16.4. I make no order as to costs.
Commissioner: Mxolisi Alex Nozigqwaba