Case Number: PSES 480-18/19 KZN
Applicant: Zipho Patricia Mfusi
Respondent: Head of Department for the Department of Education, KwaZulu Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 12 August 2019
Arbitrator: Nomcebo Thandeka Sosiba
Case Number: PSES 480-18/19 KZN
Commissioner: Nomcebo Thandeka Sosiba
Date of Award: 12 August 2019
In the ARBITRATION between
Zipho Patricia Mfusi
Head of Department for the Department of Education, KwaZulu Natal
Union/Employee’s representative: Mr M Mathonsi
Union/Applicant’s address: SALIPSAW
65 Bailey Road
Employer’s representative: Mr MC Mntungwa
Respondent’s address: Department of Education
17 Margaret Mcadi Road
DETAILS OF HEARING AND REPRESENTATION
1. This award follows upon the arbitration held over several days in which matter the applicant claims that the respondent has committed conduct that constitutes an unfair labour practice relating to promotion as contemplated in section 198(2)(b) of the Labour Relations Act 66 of 1995 (“the Act”).
2. The matter was heard over the following days: 24 January 2019, 29 and 30 April 2019 as well as 23 and 24 July 2019.
3. The applicant was present throughout the hearing and was represented by Mr. Mathonsi, an official from SALIPSWU, the trade union that the applicant is a member of. The employer, on the other hand was represented by Mr. Mntungwa.
4. Parties agreed on submitting closing arguments on or before the 31st July 2019. Thereafter, an indulgence was requested and granted for the respondent to submit on the 2nd August 2019. Both parties complied with their undertaking.
ISSUE TO BE DECIDED
5 The issue to be decided is whether there employer has perpetrated an unfair labour practice against the applicant by failing or refusing to appoint her to a post level 2 and whether, if the non- appointment is found to be unfair, the applicant should be promoted to post level 2 and be paid back pay.
BACKGROUND TO THE DISPUTE
6. At the time that this dispute was arbitrated, the applicant was employed as the HOD (Humanities) at Hillgrove Secondary School.
7. The employer had advertised post number 192, being a vacancy for a Head of Department (“HOD”) at Hillgrove Secondary School, via circular HRM 40 of 2012.
8. The applicant was dully recommended by the School Governing Body (“SGB”) of Hillgrove Secondary School for promotion to the HOD position.
9. It was common cause that the applicant received a letter of placement from the human resources department of the employer. According the applicant, in the placement letter the applicant was instructed to assume duties as Head of Department on 28 January 2013.
10. Also common cause is the fact that the principal of Hillgrove Secondary School required the applicant to sign another assumption of duty form on 28 January 2018.
11. The applicant’s promotion to her HOD position is premised on the notice of assumption of duty signed by the applicant and the principal of the school on 11 September 2018. According to that Notice, the actual date of assumption of duty is 10 April 2018.
12. The applicant seeks an order granting her promotion retrospectively to the 28th January 2013. However, in her dispute referral she states that she discovered that she was not paid according to her job description on the 12th August 2018. She further asserts that her dispute arose on 22 August 2018, the date on which her employer advised that her grievance was unsuccessful.
13. The employer, on the other hand, refutes the unfair labour practice claim. It contends that the evidence of the applicant is not reliable and argues that the respondent was justified in not promoting the applicant between January 2018 and March 2018 since the applicant failed to submit the assumption of duty on time. The respondent further argues that from the point of view of the respondent the matter was settled in 2018. According to the employer, any possible dispute pertaining to this matter could only be a salary dispute which falls outside the purview of section 186 (2) (a).
14. It is a matter of record that the applicant had to bring an application for condonation of her late referral of her unfair labour practice dispute. The said application for condonation was granted. A critical averment made by the employee in the condonation application was that she became aware of the unfair labour practice in March 2018. These two issues are dealt with hereunder in the Analysis of Evidence and Argument.
SUMMARY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
15. The applicant, Ms Zipho Patricia Mfusi, was the first witness to give evidence. She called two other witnesses, Mr Nair and Mr Bhekuyise Paul Mpungose to give evidence in support of her case. Mr Nair is the current deputy principal and Mr Mpungose, the principal. Both held the same positions when events leading to this dispute began to unfold way back in 2013.
16. In her testimony Ms Mfusi stated that when she applied for the promotional HOD (Humanities) post she was working in the capacity of post Level 1 educator. She received a placement letter in 2013. She assumed duty immediately. Her immediate supervisor, the school principal, Mr Mpungose signed the Assumption of Duty Notice, also referred to as the “AOD” in 2013. Three months after she had taken up her new post she realised that her salary had not been adjusted. She made enquiries but was informed that the PPN (post provision norm) reflected the former HOD, Chetty as the incumbent. When there was no change several months later Ms Mfusi approached the employer’s regional offices (at Truro House) where she was told that the system reflected that she still was a Level 1 educator. Her trade union at the time, SADTU, promised to take the matter on her behalf but nothing came of it.
17. Mr. Mpungose tried to assist the applicant. Following upon Mpungose’s email to the employer, the applicant was handed a new notice of assumption of duty form which she signed without prejudice in 2018. Thereafter, she lodged the current unfair labour practice dispute. Mr Mpungose’s further intervention in liaising with the employer’s provincial offices resulted in Ms Chetty being removed from the Hillgrove Secondary School PPN. Ms Mfusi explained that she signed the AOD in 2018 because Mpungose had promised that she was going to be paid the difference between the salary and that which she was supposed to have been paid from January 2013 when she started working as HOD.
18. Under cross examination Mfusi explained that the AOD at the time did not have space for to sign. It was not correct that she was at fault for not signing the assumption of duty. The principal was required to sign and submit it. She kept making enquiries but the employer did not assist her. The District Director had refused to resolve her grievance on the basis that the matter was too old. When circulars invite HOD’s to attend meeting she would be invited as well. Officials from the Department involved her as a member of the senior management team.
19. In his evidence Mr Nair stated that the employer had a history of documents going missing. He phoned the regional offices and spoke to one Ntobeko. He drafted a confirmatory document that Ntobeko signed at Truro House confirming receipt of the 2013 assumption of duty. Mr Nair had personally submitted the AOD. He explained that the assumption of duty notice had to be signed by the principal because he was the conduit between the employer and the appointed candidate. The applicant had no role to play regarding the assumption of duty. The new assumption of duty notice had spaces for both the employee appointed and the principal to sign the notice. After the assumption of duty had been signed he expected Ms Mfusi to assume HOD duties and be remunerated accordingly. However, Ms Mfusi complained that she was still remunerated as a Level 1 teacher and not as HOD. According to Mr Nair, the employer had a duty to ensure that it received the document.
20. Mr Mpungose as a principal was the link between the employer and the school. On the detartment’s records Ms Mfusi was only reflected as HOD in the second term in 2018. He had ensured that the AOD for Mfusi was submitted when he handed it to his deputy, Mr Nair, who he tasked with submitting same to the Provincial Office. As requested by him Mr Nair submitted the AOD and came back with proof which he filed away. There was no procedure for submitting the AOD. They devised their own system of submitting and having a record of documents submitted to the Department. Yet each time documents went missing from the Department, the school and the principal were blamed for the loss. Ms Mfusi underwent an induction in 2013.
21. According to Mr Mpungose the Department asked him to instruct Ms Mfusi to sign a new AOD in 2018 in order to resolve the impasse. The AOD of the pre-2018 era did not require the promoted employee to sign but required the principal of the school to sign. He wished that the Department allowed school principals to submit documents electronically. The post was never cancelled. No new advert was published for the HOD post held by Ms Mfusi. Salary advices were issued haphazardly, usually after three months. He had pressured the officials to resolve the matter so much so that he was asked to tone it down to avoid causing some people to lose their jobs. The employee had indicated that she was referring the matter to the ELRC which prompted the department to issue the 2018 assumption of duty ntoice.
22. Mrs Welekazi Mbayimbayi, employed as a senior personnel officer handling promotions, gave evidence in support of the employer’s case. She disputed that the employer received any AOD other than the one that the employee signed in April 2018. She also stated that she did not know any employee of the Department at Truro House called Ntobeko.
23. According to Mrs Mbayimbayi, she worked only according to documents submitted to the Department. Employees appointed were remunerated according to documents submitted to the Department. Once the Department receives the AOD, the AOD is captured on the database. The Persal section adjusts the notch and the salary level at which the promoted employee must be remunerated.
24. In the case of Mrs Mfusi the 2018 AOD was an amendment of the 2013 AOD. The post had not been filled anew. Only the principal of the school was in a position to indicate when the candidate had assumed her duties. If she was not in her office, in service personnel received documents on her behalf. There were many interns in her department. Ntobeko M could have been one of them. Personnel from other departments could also receive documents. Since K Chetty had not been removed from his position at the school, the promotion of Ms Mfusi could not be effected. When the new AOD was signed in April 2018, Ms Mfusi was not reflected as a Head of Department. According to Mrs Mbayimbayi there was no problem with documents continuously getting lost. She did not dispute that Mr Nair had submitted the AOD. Ms Mfusi was paid as HOD in 2018 because the AOD was received in 2018 which made it possible for the post to be created on the system. It was not her duty to follow up on the posts.
ANALYSIS OF EVIDENCE AND ARGUMENT
25. The Council is required to decide, in the light of the evidence presented to it, whether the employer committed an unfair labour practice by failing to promote Ms Mfusi to the post of HOD in 2013 and not remunerating her according to the salary level of an HOD (Humanities) commencing in January 2013.
26. The thrust of the employer’s closing argument was in effect a jurisdictional point. According to that argument, the employee’s dispute is a salary dispute and not an unfair labour practice. For reasons that follow, this claim cannot be sustained.
27. In National Commissioner of the South African Police Services v Poterill N O and others (2003) 24 ILJ 1984 (LC), a matter involving a dispute over the promotion of incumbents in upgraded posts in the SAPS, the Labour Court held:
“[15 The substance of the dispute pertained to the employees’ complaint that the posts had been regraded but, despite that fact they had continued to be appointed in the same posts and despite Regulation 24, their salaries had not been increased. In my view this a complaint about alleged unfair conduct “relating to the promotion” of the employees.”
28. Further, in the same judgment the court stated
“ I do not accept the argument that the dispute was a ‘dispute of interests” which, for this reason fell beyond the jurisdiction of the arbitrator. The employees’ case was that they were victims of an unfair labour practice, and that as a matter of law they were entitled to salary increases. This was a dispute of rights. The fact that the remedy sought was an increase in salary does not change the character of the dispute. A claim for a higher salary as a matter of right is not an “interest dispute”.
29. The dictum of the court above is in line with the thinking in Apollo Tyres that the unfair labour practice jurisdiction gives rise to the self-standing right to complain about the unfairness relating to promotion. It also provides support for the view that promotion does not necessarily entail a dispute about the occupation of a vacant position, though this right might be affected by regulations defining promotion in a particular workplace.
30. Based on the facts of this matter, the claim of the employee was based on a belief that she had a clear entitlement to be upgraded to her existing position based on the increased salary attaching to the higher, promotional HOD position. Her claim falls within the purview of “unfair conduct relating promotion” in her capacity as an employee and, therefore, within the definition of an unfair labour practice as defined in section 186(2) (a) of the Act.
31. The respondent’s claim that the applicant’s dispute was settled is not premised on logic or fact. There is simply no evidence that there was any settlement regarding the dispute. Accordingly, there is no merit in the employer’s argument that the dispute was settled.
32. The case of the employee is that she was officially appointed Head of Department: Humanities on 28 January 2013, and her principal had submitted her assumption of duty form on 13 March 2013. She nevertheless continued to be paid as a Level 1 Educator instead of being paid the salary of an HOD. After many years of following up on the matter she eventually lodged a grievance on the 12th March 2018 and received an outcome on 22 August 2018.
33. On 29 May 2018 Mr P N Cele (Acting Director: Umlazi District) from the office of the Department of Education KwaZulu-Natal addressed a submission to Dr E.V. Nzama, the provincial Head of Department: Education. The submission was in essence a request to for the creation of an HOD post at Hillgrove Secondary School. In the document it was explained that the request was being made “in order to rectify the anomaly, Head office is thus required to create a post whereby ZM Mfusi will be reimbursed for the period she was not paid for her promotion. Ms Mfusi was promoted on the 28th January 2013. As such she is entitled she is entitled to a period of back pay from 28th January 2013 to the present date.” The projected cost for the exercise was stated to be R88 408, 00.
34. Mrs N V Hlongwane rejected the recommendation that the applicant be paid retrospectively to 28 January 2013. However, the Acting Chief Director: HRM, Mr M R C Msweli, recommended the proposal that the applicant be paid back pay. The Acting Director General Corporate Management (Mr. GN Ngcobo), Chief Director: Financial Services (Mr. L Ramburan), Acting Chief Financial Officer (Mr. V Mtshali) and the Head of Department: KZN Education (EV Nzama) all refused to support the recommendation for back pay.
35. In the letter from the Manager: Umlazi District dated 23 April 2018, it was remarked that enquiries were addressed to AW Mbayimbayi and a new request was made for the creation of a HOD post at Hillgrove Secondary School. It was recorded that “Ms Mfusi was promoted in 2013 as Departmental Head but documents were not received by this office in order to facilitate the process.” It was further stated that “We only received documents on the 12/ 04/ 2018 from the school, please see the attached documents for reference.”
36. On the 4th September 2018 the applicant referred the current unfair labour practice dispute. On the 11th September 2018, the applicant was furnished with and signed a Notice of Assumption of duty. She was ascending to post number 192, “HOD (Humanities)”. The ‘actual date of assumption of duty was stated as the 10th April 2018. The applicant signed the document but annotated the words “without prejudice” next to her signature. She explained that she wanted the matter resolved but was reserving her right to dispute the date of assumption of duty.
37. The New Notice of Assumption of Duty (“NAOD”) dated 11 September 2018 had space for two signatures, one being that of the “official/ educator” and the other being that of the “Head of Institution/ Component”. The Assumption of Duty (“AOD”) signed on the 13 March 2013 had space for only one signature, namely, that of the “Head of Institution/ Office”. The instructions on the AOD state that the document should be completed for all educators and employees in the public service in respect of appointments, promotions and transfers. Forms for school based personnel should be submitted to the Regional Office via the District Office. Therefore, on the face of the form, the applicant had no part to play in the completion or submission of the AOD to the offices of the employer.
38. As such, the applicant had no way of influencing the delivery of the AOD to whosoever was supposed to process it at the provincial offices of the employer.
39. The other document that the applicant received was a letter of placement dated 16 January 2013. The said letter advised the applicant that she had been successfully placed as Head of Department at Hillgrove Secondary School. It further instructed her to assume duty at the school on 28 January 2013.
40. It is common cause that the applicant did assume duty as instructed. What becomes clear is that the employer did not process her appointment on the post establishment and on the Persal.
41. It is the employer that bore the duty to process the promotion documents. It had both the authority, information and the documents to process the appointment. If there was any information that was lacking on the part of the employee or the principal, it was within the powers of the employer to ask for further information.
42. Satisfactory evidence was led that the employee and Mr Mpungose did not rest on their laurels but kept asking the employer to rectify what Mr Mpungose referred to in correspondence with the employer, as an anomaly, referring to the fact that although the employee had been notified that she had been promoted to HOD, and was generally recognised by officials as such, she had not officially been processed as such nor was she remunerated according to her promotion.
43. Evidence also showed that there were no proper systems in place to communicate the assumption of duty to the employees. Principals of schools were left to their own devices. Documents would regularly go missing. Each principal had to devise a plan to ensure that documents did not go missing and that there was proof that they had been delivered to the regional office. It is such poor state of affairs that resulted in the applicant’s promotion not being processed and her subsequent enquiries not being dealt with.
44. The result was that the employer perpetrated unfairness on the employee, Ms Mfusi. The poor systems put in place by the employer and the ineptitude of the officials concerned resulted in the employee being promoted on paper (in the letter of assumption duty) only. In practice she remained a Level one educator even though a decision had been made to promote her.
45. When the applicant’s promotion was effected it was based on circular HRM 40 of 2012. The Post number was 192 as advertised in 2012. Basically, it was the same post she was promoted to in 2013.
46. As a result of the employer’s failure to process the applicant’s promotion in February 2013, the applicant was prejudiced in that she was not paid the remuneration she was due. From the time her promotion was approved in January 2013, the applicant was paid as a Level 1 educator instead of being remunerated at a salary level of HOD. For the period February 2013 to August 2018 the difference between the employee’s salary and that which she was paid amounted to R88 408, 00. The employer ought to be required to reimburse the employee.
47. There was some acknowledgment on the part of the officials of the employer that the employee had been subjected to unfair treatment. For that reason a submission was drawn and supported by at least two officials which supported the view that the applicant should be paid the above stated amount retrospective to when she was first promoted.
48. Evidence suggested that payment of the difference between the employee’s salary as a Level 1 educator and what she was supposed to be paid as an HOD became a hot potato with some officials not wanting to get involved in resolving the matter. At some stage the response from the official was that the outcome of her complaint was “non- committal”. It is inexplicable how an official tasked with deciding the fate of a fellow employee could shrug off his responsibility in those callous words.
49. It could very well be that the employer did not intentionally perpetrate the unfair conduct outlined above. The lack of intention notwithstanding, the employer’s conduct was unfair.
50. In Apollo Tyres SA v CCMA and others (2013) 34 ILJ 1120, the LAC accepted meaning of unfairness as ascribed to that concept in Du Toit et al, The Labour Relations Act of 1995 (2nd edition), at 443 as follows: “… unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious, inconsistent conduct, whether negligent or intended.”
51. Based on the evidence presented at this arbitration, the applicant has discharged the onus of proving that the employer promoted her in February 2013 but failed, until September 2018, to pay her remuneration that accorded with her new post as Head of Department (Humanities). She is entitled, at the very least to be reimbursed of the difference.
52. For all of the reasons stated above, the employer has committed an unfair labour practice. The officials responsible for processing her promotion and those with correcting such failure acted reprehensibly for the reasons set out above.
53. The unfair conduct of the employer resulted in the applicant not receiving the full remuneration that she should have been receiving but instead being underpaid by a total of R88 804, 00 over the period at issue.
54. The relief that would be reasonable and just in the circumstances of this case would be to require the employer to pay the applicant eighty eight thousand four hundred and eight Rand (R88 804, 00). This would place the applicant in the position she would have been in regarding her remuneration but for unfair conduct of the employer.
55. By failing to implement the promotion of Ms Zipho Patricia Mfusi to the post of Head of Department Post (Post No 192 as advertised in HRM 40 of 2012) in 2013 and not remunerating her according to the salary level applicable to HOD (humanities) with effect from 28 January 2013, Head of Department of Education KwaZulu-Natal (the employer) committed an unfair labour practice relating to her promotion.
56. The employer is ordered to pay Ms Mfusi the remuneration that she became entitled to as a result of being promoted to the post referred to in the preceding paragraph with effect from 28 January 2013.
57. The remuneration due to Ms Mfusi as a consequence of the order in the preceding paragraph amounts to eighty eight thousand four hundred and eight Rand (R88 804, 00).
58. The employer is ordered, to pay the Ms Mfusi the amount of eighty eight thousand four hundred and eight Rand (R88 804, 00) by no later than 22 September 2019.
NT Sosiba: Panellist