Case Number: PSES 1001-18/19EC
Province: Eastern Cape
Applicant: Naptosa obo Nqadala & 1 other
Respondent: Department of Education-Eastern Cape Province
Issue: Unfair Labour Practice - Provision of Benefits
Venue: The Department of Education in Zwelitsha
Award Date: 11 June 2019
Arbitrator: Theresa Malgas-Senye
Case Number: PSES 1001-18/19EC
Commissioner: Theresa Malgas-Senye
Date of Award: 11 June 2019
In the ARBITRATION between
Naptosa obo Nqadala & 1 other
Department of Education-Eastern Cape Province
Union/Applicant’s representative: NAPTOSA
Union/Applicant’s address: Port Elizabeth
Telephone: 083 720 1354
Respondent’s representative: Department of Education
Respondent’s address: Eastern Cape
Telephone: 083 372 6768
DETAILS OF HEARING
1. This matter was enrolled for arbitration in terms of section 186(2)(a) of the Labour Rela-tions Act (“the Act”) in The Department of Education in Zwelitsha on 21-22 May 2019.
2. The Applicants was represented by Mr. Adams from Naptosa and the Respondent by its Labour Relations Practitioner. Mr Buyana.
ISSUES TO BE DECIDED
3. The purpose of this arbitration is to determine whether the Applicants qualifies to be translated to Psychologists in terms of ELRC Collective Agreement 1 of 2012 and re-ceived their benefits.
4. Both Applicants is employed under the Employment of Educators Act 76 of 1998, in of-fice-based posts since 1 January 2009.
5. Ms S Nqadala is currently appointed as Deputy Chief Education Specialist: Education Support Services in Fort Beaufort and Ms T Nqoloba as Deputy Chief Education Specialist: Psychosocial Support in Libode.
6. At the time of their appointment they had not yet been registered with the Health Pro-fessions Council of South Africa (HPCSA) as psychologist.
7. Ms S Nqadala registered with the HPCSA as a Psychologist on the 7th of January 2009 under the registration number PS 0105872.
8. Ms T Nqoloba registered with the HPCSA as a Psychologist on the 5th of September 2009 under the registration number PS 0109258.
There were no registered psychologists servicing the districts. The districts requested them to also render psychological services to the schools in the districts in addition to the management duties they were appointed to perform. They started offering psychological services immediately after assumption of duties to date.
9. Written submissions was handed from both parties and the parties agreed that the con-tents of the submitted bundle is what it purports to be.
SURVEY OF EVIDENCE
10. This is a summary and does not reflect all of the evidence and argument heard and considered in reaching a decision.
11. Due to the evidence being common cause, the parties agreed that they would file heads of arguments instead of presenting oral evidence.
12.Upon writing of this award all arguments were received by both parties.
ANALYSIS OF EVIDENCE
13. The issue to be decided is whether the Respondent applied the provisions of ELRC Collective Agreement 1 of 2012 correctly and whether the Applicants qualifies to be trans-lated to Psychologists in terms of ELRC Collective Agreement 1 of 2012.
14. The Applicants were serving in the Provincial Adjudications Committee for Examina-tion Concessions as a Psychologist since 2014 to date.
The Inclusive Education Directorate requested the Applicants (especially Ms Nqadala) to conduct public awareness sessions on psychological matters in various Radio Stations (UMhlobo Wenene, Tru FM and Forte FM) since 2012 to date. Furthermore, they were enlisted to conduct telephonic counselling services to learners from throughout the prov-ince before, during and after grade 12 examinations and release of results yearly.
15. In February 2016, the posts of Educational Psychologists were advertised with more lucrative OSD Salary Scales. They had intentions to apply for these posts as the advert had different grades acknowledging years of experience and number of years registered with HPCSA. The psychologists in the system mandated Ms Nqadala to bring this to the attention of the then CES (Mrs ZZ Njotini).
16. She advised them (psychologists and therapists) not to apply for the advertised posts as the matter of translation to OSD Salaries would be implemented as soon as the new therapists and psychologists receive their salaries. She further mentioned that, their (new employees) receiving the OSD salaries would be a point of reference as OSD sala-ries were going to be implemented for the first time in the Eastern Cape Department of Education. She indicated that she already made reference to other provinces (for exam-ple, Gauteng) regarding OSD implementation and was engaging with the Provincial Human Resource Directorate. Furthermore, because of their expertise Mrs Njotini re-quested the applicant’s services in the recruitment process (shortlisting, interviews, and final allocation to districts) of new therapists and psychologists, as there were no psy-chologists and therapists at the provincial office.
17. The first cohort of newly employed therapists and psychologists assumed duties on the1st of September 2016. The applicants waited whilst consultations were in progress, but to their greatest shock and dismay they observed that there was no one in the Inclu-sive Education and Human Resource Directorates referring to their case (as old psy-chologists and therapists). This was compounded by the fact that the CES (Mrs. ZZ Njo-tini) who had a full understanding of their matter, transferred to HIV & AIDS Directorate.
18. On the 8th of January 2018, the applicants (Ms Nqadala and Ms Nqoloba), together with Mr. L Putter (Acting CES — Inclusive Education) presented their case to Mr. Q Lu-thuli (Director HR).Having listened to the matter, Mr. Q Luthuli stated that the applicants psychological services were rendered voluntarily and that the department does not owe the applicants anything. The applicants were so aggrieved by this response and decided to lodge a grievance in terms of Chapter G of the Personnel Administrative Measures (PAM).
19. The Applicants submitted their grievance to Provincial Labour Relations Office on the 26th of January 2018. There was no response from Labour Relations, and they made a follow up after a period of 2 months lapsed. They were finally invited to a hearing on the 11th of May 2018, after several postponements. In that hearing meeting presided by Mr. A Buyana (Labour Relations), Mr. J. Daniels (Human Resource), Mr. K Dalasile (NAP-TOSA) and the secretary from Labour Relations (Ms T Toyiya); the applicants were in-formed that the HR Provincial Office is not conversant about interpretation and imple-mentation of OSD as such they will attend a workshop planned for 13 and 14 June 2018. They promised to call the applicants for a feedback afterwards, but they were never called.
20. On the 20th of July 2018 Ms Nqadala emailed Ms T Toyiya (Secretary- Labour Rela-tions) requesting feedback as it was quiet for a long time. She responded that our matter is handled by Human Resource.
The request was that the applicants (Ms SN Nqadala and Ms T Nqoloba) should be trans-lated to Senior Psychologist Posts as they were are already executing both management and psychological duties. They also requested that their years of experience as psy-chologists and DCESs servicing the Department of Education be recognized and be re-munerated accordingly (back pay).
The Applicants request is informed by the ELRC Collective agreement 1 of 2012 Clause 5.1.10 on Recognition of relevant experience as well as Clause 5.1.12 on Translation measures.
ELRC Collective Agreement 1 of 2012 was concluded and signed on 7 September 2012. The Collective Agreement introduced an occupation specific remuneration and career progression dispensation for education psychologists in public education.
21. The Respondent submitted that In the referral form applicant claims that:
‘Enforcement of Collective Agreement 1 of 2012 (ELRC). Applicants appointed as DCES’s Psychologic Social Services but never translated to Psychologist. They were per-forming duties as Psychologist and the relief sought the applicants be translated to Edu-cation Psychologist backdated 1 August 2012’
22. ELRC Collective Agreement 1 of 2012 was concluded and signed on 7 September 2012. The Collective Agreement introduced an occupation specific remuneration and ca-reer progression dispensation for education psychologists in public education and the following:
5.1.10 RECOGNITION OF RELEVANT EXPERIENCE
184.108.40.206 This agreement provides a basis for the recognition of ap-propriate/relevant experience on appointment as provid-ed in Annexure A3, B3 and C3 of this agreement.
220.127.116.11 The salary position of a serving education therapist, coun-sellor and psychologist upon translation to the OSD is protected against that of a new education thera-pist.counsellor and psychologist as provided for in An-nexure A3, B3 and C3 (translation tables) of this agreement.
18.104.22.168 The recognition of relevant experience of serving educa-tion therapists, counsellors and psychologists covered by this agreement shall be based on verified proof of such experience. Proof of such experience, where not available on the personnel record of an employee, must be submitted to the employer by 30 September 2012 in order to qualify for any recognition with effect from 1 July 2010 in terms of this agreement. Where such proof of experience is submitted after 30 September 2012, recognition for salary purposes, where provided for in the agreement, shall be with effect from the first day of the month following the month in which the proof was sub-mitted by the employee.
5.1.11 SALARY RECOGNITION UPON APPOINTMENT IN A HIGH-ER POST OR GRADE
All serving education therapists, counsellors and psy-chologists who are covered by this agreement, and who advance to a higher post or grade, shall gain at least one (1) notch on such appointment (promotion rule).
5.1.12 TRANSLATION MEASURES
22.214.171.124 Translation from the existing dispensation to appropriate salary grades (scales) at-tached to the OSD based on the princi-ple that no serving education thera-pist's, counsellor's or psychologist's salary position (notch or package) will be less favourable with the implemen-tation of the revised salary and career progression dispensation.
The translation measures were included in the “Resolution” to facilitate the translation of therapists, counsellors and psychologists in the Public Educator Sector.
23.The Respondent submitted that the department is in a process of trying to resolve the dispute and that currently the Human Resource Practitioners are done with the verifica-tion process. The delay on the part of the employee’s personal files that are with Auditor-General. Immediately AG releases files a recommendation will sent to the Head of De-partment for Approval. This Process can take up to 4 Weeks.
24.The Respondent submits that it is against this background that the Respondent is re-questing a month to resolve this matter internally and approve the Applicants request.
25. In the circumstances and with reference to recent case law I am satisfied that the Ap-plicant proofed their case.
26. In the light of the above and all arguments advanced I find that the Respondent failed to translate the applicants to Psychologists in terms of ELRC in terms of Collective Agreement 1 of 2012 dated 1 August 2012.
27. Furthermore, the ECDOE recognized the Applicants experience in terms of clause 5.1. 10.3. as per the Inclusive Education submission to the HR office submission to HR to create this post. Furthermore, the failure by the ECDOE to implement the collective agreement as from the 1 July 2010, I find that the Applicants were robbed of the oppor-tunity to be remunerated as Senior Psychologist Grade 1. There is no evidence that the department even attempted to implement the collective agreement and only done so when they appointed psychologist and therapist in January 2018.
28. I find that the Respondent failed to apply its own policy correctly, by failing to adhere to the Collective Agreement and translate the Applicants.
In the premise I render the following award:
29. The application of the Applicants ,Mrs SN Nqadala and Mrs. T.Nqoloba is successful.
30. The Respondent, the Department of Education: Eastern Cape is in breach of Collec-tive Agreement 1 of 2012 in that as per the business rules on the implementation of the Collective agreement 1 of 2012 the Provincial Education Department (PED) should have verified the information (qualifications, registration with the HPCSA) by the 7 November 2012. The ECDOE failed to do so and is still in the process of verifying the information for all therapists, counsellors and psychologist employed by the ECDOE.
31. The Respondent, the Department of Education is therefore translated to the rank of Senior Psychologist Grade 1 with retrospect to 1 August 2012.
32.The Respondent , the Department of Education Eastern Cape pay the Applicants the difference between the remuneration and benefits they have earned when they been translated to the rank of Senior Psychologist with effect from 1 August 2012 to date.
Commissioner: Theresa Malgas-Senye