Case Number: PSE512-18 /19 LP
Applicant: Ntshedi Sophy Lekganyane & 40 Others
Respondent: Department of Education (Limpopo Provincial Administration)
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Corner Hospital and Hans Van Rensburg Street, Polokwane, Limpopo Province.
Award Date: 26 March 2019
Arbitrator: Ntsepeng Benault Mookamedi
Case Number : PSE512-18 /19 LP
Panellist : Ntsepeng Benault Mookamedi
Date of Award : 26 March 2019
In the matter between
Ntshedi Sophy Lekganyane & 40 Others
(Union / Applicant)
Department of Education (Limpopo Provincial Administration)
Applicants’ legal representative : A.M.Carrim Attorneys
16 Witklip Street
Telephone number : (015) 293 1666 / 7
Fax number : (015) 293 1700 / 0866149355
Email address : firstname.lastname@example.org
DETAILS OF THE HEARING AND REPRESENTATION.
 This is an award in the arbitration hearing between the Applicant (Ms Ntshedi Sophy Lekganyane together with 40 co-Applicants) and the Respondent, (Department of Education, Limpopo Provincial Administration). The arbitration hearing took place on 28 February 2019 and was finalised on the same day. The hearing was conducted within the business premises of the Respondent at Corner Hospital and Hans Van Rensburg Street, Polokwane, Limpopo Province.
 The Applicants did not attend the arbitration hearing but were represented by Mr Samuel Setlatjile, a practising Attorney from the law firm, A.M.Carrim Attorneys which conduct its legal practice business at Ladanna, Polokwane, Limpopo Province. The Respondent attended the hearing and was represented by Advocate Rudzani Makhema its Assistant Director responsible for Grievance Handling and Disputes Resolution.
 Both parties were properly notified by the ELRC about the date, time and venue of the arbitration by means of an email communique dated 31 January 2019. Having satisfied myself with the fact that the Applicants were properly notified about the arbitration hearing, I exercised my judicial function in dealing with the matter and evoked Clause 43.3 of the ELRC’s Constitution. Clause 43.3 of the ELRC’s Constitution explicitly provides that “If the referring party to the dispute fails to appear in person or be represented at arbitration proceedings, the Panellist may:
43.3.1 dismiss the matter; or
43.3.2 continue with the proceedings in the absence of the party
 The matter was therefore proceeded with in terms of Clause 43.3 read together with Clause 43.3.2 of the ELRC’s Constitution. Prior to the commencement of the arbitration hearing, Mr Setlatjile made an oral application to the effect that the dispute be disposed of by means of written arguments. Advocate Makhema was given an opportunity to respond to Mr Setlatjile’s oral application to which Advocate Makhema consented to same. The arbitration hearing is therefore decided on documentary evidence only.
 Mr Setlatjile submitted his written arguments to Advocate Makhema on 04 March 2019. Both parties agreed to submit their written arguments on or by no later than 08 March 2019 to the ELRC and same was complied with on the agreed day. I have accordingly considered the totality parties’ written arguments which are more relevant to the current dispute in rendering this Arbitration Award.
NATURE OF THE DISPUTE.
 The dispute concerns an alleged unfair labour practice in relation to the provision of employment related benefits referred in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 read together with Clause 22.214.171.124 of the ELRC’s Constitution (Part C, Dispute Resolution Procedures). The dispute is primarily rooted in the interpretation and or the application of Paragraph 8 of Government Gazette No.30678.
 The said Government Gazette was duly signed by the then Minister of Education, Honourable Minister Grace Naledi Mandisa Pandor on 15 December 2007. The Gazette is subtitled “Improvement in Conditions of Service for Educators Employed In Terms Of the Employment of Educators Act, 1998: Teachers Incentives”. The Gazette is read in conjunction with the relevant provisions of the Personnel Administrative Measures (one of the most relied upon and jealously guarded Policy Prescript applied in the education sector).
ISSUE TO BE DECIDED
 I am required to decide whether or not the Respondent committed any alleged labour practice in relation to the non-payment of a rural incentive scheme as provided for in Paragraph 1 of the Government Gazette cited in Paragraph 5 of the current Arbitration Award in terms of section 186 (2) (a) of the Labour Relations Act. Should I find that the Respondent’s action against the Applicants constitutes an unfair labour practice as alleged, I shall determine an appropriate relief.
BACKGROUND TO THE DISPUTE
 The Applicants are within the employ of the Respondent as Educators. They are employed at various schools at Sekhukhune District. The Applicants referred their alleged unfair labour practice dispute against the Respondent 26 September 2018. The referral was accompanied by accompanied by a Condonation Application as the referral was outside the required timeframe within which an unfair labour practice dispute is referable before the ELRC in terms of Clause 126.96.36.199 of the ELRC’s Constitution. The Condonation Application was enrolled for an in limine hearing process in terms of the Council’s Constitution and was decided on papers.
 Immediately following the conclusion of the in limine process, the Condonation Application was accordingly granted on 06 December 2018. A Certificate of Conciliation thereby certifying the dispute unresolved was issued by the ELRC’s Panellist on 06 December 2018. The Applicants later referred the dispute to arbitration before the ELRC on 30 January 2019. On 05 February2019, the ELRC enrolled the matter down for an arbitration hearing process in terms of Clause 17.2.3 of the ELRC’s Constitution.
 Prior to the commencement of the arbitration hearing, the Applicants’ legal representative submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle A”. The Applicants’ bundle of document ranged from “Page 01 to Page 40”. Similarly, the Respondent’s representative submitted a single bundle of document as a basis for its documentary evidence and same was accepted as such and marked as “Bundle B”. The Respondent’s bundle of document ranged from “Page 1 to Page 9”.
SURVEY OF EVIDENCE AND ARGUMENT AND ARGUMENT.
The Applicants’ case.
The Applicants’ legal representative, Mr Samuel Setlatjile argued that:
 The Applicants qualify to be paid employment related benefit “rural allowance incentive” in terms of “Paragraph 8.1 of the Government Gazette referred to in Paragraph 5 and 6 of this Arbitration Award. The Applicants’ schools falls under category 8.1 (b) of the aforecited Government Gazette (being schools categorised under quintile 2 having 20% poverty ranking criteria.
 In terms of Paragraph 8.1 (b) of the same Government Gazette, poverty is one of the factors which qualifies the school to have all of its posts to be eligible for rural allowance incentive scheme. Paragraph 8.1 (b) entitles the Applicants to be eligible for such payment by providing that “All schools are already ranked in terms of poverty criteria and divided into quintiles, quintile 1 being the 20 % poorest schools and quintile 2 being the next 20% poorest ranked school”.
 Furthermore, that the Applicants’ schools are also ranked as no-fee schools which have to be prioritised by the Respondent by means of applying Paragraph 8.1. (c) of the same Government Gazette. The Respondent once acknowledged by means of a written notice that some of the co-Applicants who are attached to Moteane Senior Secondary School (within Sekhukhune District), which is a quintile 2 school, are eligible for payment of the aforementioned rural incentive scheme.
 Based on the same state of affairs, all the Applicants’ schools in the current dispute are eligible for the payment of the incentive scheme provided for in Paragraphs 8.1, 8.1 (b) and 8.1 (c) of the same Government Gazette. The Applicants pray for relief which declares the Respondent’s action towards the Applicants constitutes an unfair labour practice and order the Respondent to pay the Applicants’ rural allowance incentive scheme in terms of Paragraph 8.1 of the Government Gazette. The Applicants closed their case.
The Respondent’s case.
Advocate Rudzani Makhema, on behalf of the Respondent, argued as follows:
 There is nothing either in law or whatsoever which entitles the Applicants in this matter to be paid the employment related incentives in terms of the above mentioned Government Gazette. The Applicants made a selective interpretation of the Government Gazette by claiming that they are entitled to be paid the incentives in terms of Paragraphs 8.1 (b) and 8.1. (c) of the same Government Gazette. The Applicants, for reasons best known to them, ignored Paragraph 8.1. (a) of the Government Gazette.
 Paragraph 8 (1) (a) of the Gazette, in regulating matters relating to the selection of the schools where all the posts would be eligible for incentives to be determined in the following order:
Remoteness of the school, or how far the school is situated from the nearest town. Such a town should have all the basic facilities and services that a teacher would need to have access to. The Head of Department should identify town in, near or bordering the Province that comply with these requirements and determine the distance by road from each school to the nearest town. The implementation of the Gazette is based mainly on Paragraph 8.1 (a) of the Gazette.
 It is common cause that the Gazette which is a matter of the current dispute before the ELRC is an important instrument which the Respondent applies in determining specific Educators who are eligible to receive such incentives based on a determination provided for in Paragraph 8.1 of the same Government Gazette. Such a determination takes into account the following factors, namely, the remoteness of the school, poverty level of the school, certain schools being categorised as no-fee school, a combination of other factors that are impacting negatively on the recruitment of Teachers and that through practical experience, have been found to have a negative impact on the suitable filling of posts.
 A determination which is articulated in Paragraph 8.1 above was made by the Respondent’s Accounting Officer (Head of Department) and accordingly communicated through two Departmental Circulars, namely, Circular No: 29 of 2017 dated 16 February 2017 as well as Circular No : 71 of 2017. Copies of same were relied upon on “Page 6 to Page 9 of Bundle B” respectively. Paragraph 2 of Circular 71 of 2017 clearly stated that the criteria determined by the Respondent where certain Posts were to be identified and incentivised were to be in accordance with falling under quintile 1 and a weighted distance of 140 kilometres and more.
 The conditions of the schools falling under quintile 1 differs significantly to those of the schools in quintile 2 based on poverty levels. It is common cause that the Applicants’ schools falls under quintile 2 category. That being the case, it resonates well on a principle of fairness that the Respondent acted fairly by prioritising schools which falls under quintile 1. The criteria provided for in Paragraph 8.1 of the Gazette must be read with Paragraph 10 of the same Gazette.
 The Respondent’s Accounting Officer acted within the bounds of reasonableness as well as fairness in making a determination in line with the Gazette on the two Circulars highlighted in Paragraph 19 of this Arbitration Award. The Applicants do not meet the qualifying criteria which has been elaborately set by the Respondent’s Accounting Officer in line with the letter and the spirit of the Government Gazette under consideration. As such, the Respondent did not commit any alleged unfair labour practice in relation to the non-payment of the rural incentive scheme provided for in the Government Gazette. That being the case, it follows suit that the Applicant’s unfair labour practice claim stands to be dismissed as it has not been factually proven and established. The Respondent closed its case.
ANALYSIS OF EVIDENCE, ARGUMENTS AND FINDINGS
 The point of departure in any alleged unfair labour practice dispute is that the Applicant has a duty to establish the existence of the alleged unfair labour practice allegedly committed by the Respondent. Once such onus of proof is factually established, the onus will then shift to the Respondent (the employer) to factually prove that the conduct in question was exercised in a fair manner. Paragraph 1 of Government Gazette No: 30678 provides that “This incentive scheme is limited to fully qualified (REQV 13 or higher) paid educators in schools as defined in the Employment of Educators Act (1998). It excludes any educator subjected to another agreement or directive, rehabilitation posting, suspension without pay or absent without pay”.
 The Applicants in this matter did not present documentary evidence to the effect that they meet the above set academic criteria which makes them to be eligible for payment of the incentive scheme. Furthermore, Paragraph 8.1 (a) – (d) of the same Gazette explicitly provides a clear criteria in terms of which the selection of schools where all posts would be eligible for incentives is determined. The said criteria is in terms of the remoteness of the school, the school’s poverty level, the categorisation of the school to be falling within a no-fee school category as well as combinations of other factors that are impacting negatively on the recruitment of teachers and that through practical experience, have been found to have a negative impact on the suitable filling of posts”.
 The Applicants’ evidence failed to prove the extent to which their schools and in particular, their posts comply with the said criteria provided for in Paragraph 8.1 (a) – (d) of the current Gazette which is the subject matter of the current dispute. Turning to the dispute at hand, the provisions of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (as amended), make it abundantly clear that the alleged “unfair conduct” against the employer (being the Respondent in this matter), must either relate to promotion, demotion, probation, training or the provision of benefits. In the present dispute, the Applicants’ has always been that the Respondent committed an unfair labour practice in relation to failure to pay them employment related incentives provided for in the cited Gazette.
 Given the clear statutory definition of the term “unfair labour practice” as per section 186 (2) of the Labour Relations Act, it is obvious that the Applicants in this matter had a statutory duty in terms of section 186 (2) of the LRA to prove that the alleged “unfair conduct” does indeed relates to an unfair act or omission that arises between the employer (being the Respondent in this matter) and the employees (being the Applicants in this matter).
 Once the Applicants have factually succeeded in discharging such statutory regulated onus, the Applicants are further required to prove that the alleged unfair act or omission on the part of the Respondent relates to the failure on the part of the Respondent to provide them with benefits. Stated differently, the Applicants were enjoined to establish that the subject matter of the current dispute (being the alleged failure to pay them incentive scheme, rural allowance) is included in the term “unfair labour practice” as envisaged by section 186 (2) (a) of the LRA. Once the evidence tendered could factually prove that the alleged “unfair conduct” is not included in the “unfair labour practice” regime of the LRA, then it is axiomatic that the dispute does not fall within the parameters of section 186 (2) (a) of the LRA.
 The Applicants argued that the Respondent once paid the same incentive scheme to Educators attached to their nearby school (Moteane Secondary School, which is a quintile 2 category school to their exclusion). The Applicants’ evidence did not prove that their school falls within the category which has been determined by the Respondent’s Accounting Officer on two Circulars. No corroborative evidence was presented by the Applicants to support the said alleged deviation from the provision of the Gazette by the Respondent in this matter. In the absence of any evidence, the Applicants’ evidence amounts to opinion evidence. The Applicants’ evidence did not put forward facts, but simply ventilated opinion evidence.
 Opinion evidence is impermissible where no basis is laid for an expert opinion because it is irrelevant if the decision maker is tasked and capable himself to make this decision. The Applicants’ onus was to adduce facts and not to give opinion evidence. I find the evidence of the Applicants’ evidence to be factually weak, incredible, irrelevant, inadmissible, uncorroborated and totally unpersuasive. The evidence of the Applicants was not helpful in establishing the existence of the alleged unfair labour practice claim. The evidence of the Applicants merely demonstrated that they were prepared to present an alleged unfair labour practice dispute against the Respondent solely on opinion evidence.
 The Applicants evidence, assessed in its totality, demonstrated that the Applicants’ schools do not fall within the communicated “Teacher Incentives and the Determination of Weighted Distance” in terms of the Government Gazette under consideration having been determined by the Respondent’s Accounting Officer under Circulars No: 29 and 71 of 2017 respectively. I remain unconvinced. The inevitable conclusion I arrive at based on the totality of the evidence presented before me is that the Respondent has not committed any alleged unfair labour practice against the Applicants arising out of the Government Gazette under consideration.
 On the contrary, I find that the Respondent presented credible, relevant, admissible, corroborated evidence which factually proved that the Respondent’s Accounting Officer complied with Paragraph 10 of the Gazette which peremptorily provides that “The Head of Department must, by 30 September of the year before that of implementation, provide to the Director-General with an indication of the types and number of posts that would be eligible for the incentive in terms of Paragraphs 8.1 and 8.2 of the Government Gazette.
 On the facts, the Respondent has not committed any alleged unfair labour practice against the Applicants in this matter. The onus was on the Applicants through their legal representative to prove through credible evidence that the Respondent committed an “unfair labour practice” against them as envisaged by section 186 (2) (a) of the LRA. The Applicants have failed to do so. On the preponderance of probabilities, I cannot reach any conclusion other than that the Applicants have not been subjected to an unfair labour practice by the Respondent in this matter.
 If there were any party who could have presented the most valuable and credible evidence which could have demonstrated a case of unfair labour practice in relation to the Respondent’s alleged failure to pay the Applicants their employment related incentive (rural allowance), such party ought to have been the Applicants in this matter. On this basis the Applicants failed to make out a case of unfair labour practice with specific reference to the provision of an employment related benefit as contemplated under section 186 (2) (a) of the LRA.
 The Applicants failed to make out a proper case of unfair labour practice (in relation to the provision of benefits) against the Respondent in this matter.
 The Applicants’ alleged unfair labour practice claim against the Respondent is hereby dismissed.
NTSEPENG BENAULT MOOKAMEDI