PSES 322-19/20NW
PSES 322-19/20NW
Award Date:
2 November 2019
Case Number: PSES 322-19/20NW
Province: North West
Applicant: KB MOTHIBI
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Dr Ruth Segomotsi Mompati District offices in Vryburg
Award Date: 2 November 2019
Arbitrator: Monde Boyce
Case No ELRC PSES 322-19/20NW
In the matter between
KB MOTHIBI Applicant
and
DEPARTMENT OF EDUCATION: NORTHWEST Respondent
ARBITRATOR: Monde Boyce
HEARD: 04 October 2019
CLOSING ARGUMENTS: 10 October 2019
DATE OF VARIED AWARD: 02 November 2019
AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] This matter was set down for arbitration at the Dr Ruth Segomotsi Mompati District offices in Vryburg for 04 October 2019. Mr Beek, a practising attorney, appeared for the Applicant while Miss B Phuswane, a Labour Relations Officer, appeared for the employer.
[2] Parties submitted bundles of documents and the proceedings were digitally recorded and typed written notes taken.
[3] Parties requested to make written closing arguments and I gave parties the deadline of 10 October 2019 to forward the closing arguments. Only the employer submitted written closing arguments to the Council on the agreed date. However, it later transpired that the Applicant did submit written closing arguments but forwarded the closing arguments to a fax number appearing on the Council’s letterhead but not used by the Council. The Council immediately forwarded the Applicant’s closing arguments to me immediately it became clear that the Applicant had filed closing arguments, albeit to a wrong fax number. I subsequently considered the applicant’s closing argument and vary the award on my own accord.
THE ISSUE TO BE DECIDED:
[4] I am required to decide whether the Respondent’s decision to deduct a month salary for a period the Applicant was absent from work, and its (Respondent) failure to pay the Applicant amounts in terms of the Integrated Quality Management System (IQMS) constituted unfair labour practice.
[5] Parties also called upon me to decide whether the Applicant was coerced to agreeing to a deduction of a month’s salary in respect of the period he was absent from work and whether the alleged coercion constituted unfair labour practice in terms of Section 186 (2) (a) of the Labour Relations Act 66, 1995 as amended (LRA).
THE BACKGROUND TO THE DISPUTE:
[6] The Applicant is employed as Departmental Head Post Level 2 and is currently based at Thagamoso Primary School and earns a gross salary of R43, 613.22 per month. He was absent from work for a period exceeding four (04) months and, as a result, an amount equivalent to one month’s salary that the Applicant had to pay over twelve (12) months was deducted after a meeting in Mmabatho where the Applicant agreed to the deduction. In March 2019, the Applicant decided to lodge an unfair labour practice dispute to the Council after a grievance he lodged challenging the deduction and partial payment of an IQMS pay was not resolved to his satisfaction. The dispute could not be resolved at conciliation and the Applicant referred the dispute for arbitration. He seeks refund of the amount already deducted and payment of the balance of IQMS pay as relief.
SURVEY OF EVIDENCE AND ARGUMENT:
The Applicant’s Evidence
[7] The Applicant, Mr Kealeboga Brown Mothibi, testified that he has been employed at Thagamoso Primary School where he was transferred to after he had been demoted. He had written a letter on 02 October 2018 to Miss KB Dithejane, the District Director for the Dr Ruth Mompati Segomotsi district about reversal of his salary. In that letter he had referred to the agreement in Mmabatho where he agreed to a deduction of the salary for the month of October 2018.
[8] He wrote the letter out of frustration because he was falling behind on payment for policies, pension fund, medical aid and payment for his children’s education. He wrote the letter because there were threats that he could be charged and that if he did not write the letter, his salary would not be unfrozen. He believed he was forced to write the letter because his salary would remain frozen if he did not. He had suffered because he could not meet his financial obligations. Dr HS Mvula, the then Acting Deputy Director General had, after the meeting in Mmabatho, written a letter to the District Director instructing the District Director to implement what was agreed upon in the meeting in Mmabatho. An amount of R38, 753.88 has been deducted thus far.
[9] He had, on 29 January 2019, written a letter of complaint to the Labour Relations Office complaining about a deduction made. He had, in that letter, requested that the deduction be stopped, and the payments made reversed, but this did not happen, and he decided to refer a dispute to the ELRC.
[10] Regarding the non-payment or partial payment of his Integrated Quality Management System (IQMS), he is the head of the IQMS at the school he is currently at. He had undergone IQMS while he was still a principal. He has a problem with his being partially paid the IQMS for the year 2016. He had submitted the required information for payment of his IQMS. He was paid R1, 781.00. In 2018 he was partially paid an amount of R1, 781.00. He decided to write a letter to Miss Monareng, the Assistant Director: Human Resources, about the partial payment complaining about non-payment of the full IQMS amounts for the two years. He however did not receive a response and he lodged a dispute.
[11] After having lodged the grievance he was called to a meeting with officials of the Department where the District Director was instructed to pay the IQMS for the periods of 2016 and 2018. He however only received partial payment in two amounts of R1, 781.00 and which amounts were paid in August 2019. He believed he should be paid at 1,5% as per the Collective Agreement. He is owed IQMS payment in the amount of R20, 000.00 for the years 2016 and 2017. For the period of 2017 he did not have a school that he was based at. It was not his problem that he was not IQMS’d for that year. He seeks full payment of his IQMS.
The Respondent’s Evidence
[12] The employer did not lead oral evidence and closed its case without calling witnesses.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[13] I have taken into account the evidence and closing arguments by both parties. The Applicant, in the present case, referred an unfair labour practice dispute to the Council alleging unfair conduct on the part of the Respondent. He thus bore the onus to prove such unfair conduct. In support of his claim, the Applicant’s evidence was to the effect that the employer’s deducting a month’s salary was unfair because he was coerced to agree to the deduction and that he should have been paid full IQMS pay for the periods of 2016 and 2017.
[14] Having heard evidence, it is my finding that the claim by the Applicant was not substantiated. In respect of the deduction effected, the Applicant himself agreed to the said deduction following a meeting held in Mmabatho. It was the Applicant who wrote the letter authorizing the employer to deduct a month’s salary that was to be paid over a period of twelve months. It is common cause that the deduction was not unilateral. The employer engaged the Applicant prior to the deduction and the Applicant was fully aware and appreciated the circumstances giving rise to the deduction.
[15] It is now common cause that the Applicant was absent from work for a period of four (04) months. The Applicant dismally failed to explain why the principle of no-work-no-pay should not have applied. How the Applicant would expect to be paid for the period he was absent from work, especially for such a considerable number of days, defeats logic. It would not be unreasonable for one to expect, in the circumstances, the Applicant to be the one showing remorse and taking full responsibility for his conduct.
[16] The Applicant is not a free agent but is an educator and has, as his primary duty, prioritizing the interests of learners. In that regard, the Applicant’s claim does not arise in an instance where he has been an exemplary educator. He (Applicant), during the arbitration process, did not explain why he absented himself for such a long period and why the employer’s deducting the month’s salary was not warranted. His only basis for challenging the deduction was that he was coerced, a claim that I also find to lack basis.
[17] The Applicant, in supporting the contention that he was coerced, made reference to utterances by Dr Mvula, the then Acting Deputy Director General, who stated during the meeting that he would institute disciplinary action against the Applicant. According the Applicant, it was the threat of disciplinary action and freezing of his salary that made him agree to the deduction. But it is my finding that there was nothing untoward about the employer stating its intention to take disciplinary action in instances where the Applicant had been absent from work for such a long period of time and freezing his salary for that matter.
[18] The Applicant, in his arguments, referred me to the case of Eastwood v Shepstone 1902 TS294 at 302, where the Court stated as follows: “It was contended, in the alternative that an agreement was entered into as a consequence of undue influence by the Defendant had substantial power in the Plaintiff’s place of employment and as a consequence of his position as senior captain and her position as flight attendant and that the Plaintiff had signed an agreement as a result of the Defendant’s undue influence.” While the Applicant argued in this regard and suggested that I should find that he wrote the letter under duress, the contrary, as I stated in the preceding paragraphs, appeared to be true.
[19] The situation the Applicant found himself in was his own doing and I find his crying foul when disciplinary action was threatened disingenuous. The utterances by Dr Mvula were as a consequence of the Applicant’s own action where he was absent from work without permission and where the employer took disciplinary action, as Dr Mvula intimated, same would have been as a result of unbecoming conduct on the part of the Applicant. Duress, in such circumstances, cannot be said to have occurred. The letter the Applicant wrote was written ten (10) days after the meeting and he, nowhere in the letter he wrote, stated that he had been coerced to write it and was doing so under duress.
[20] Regarding non-payment or partial payment of the IQMS, the Applicant conceded that a process, including submission of relevant documentation, needed to be followed for payment of the IQMS. Asked during cross examination whether he complied with this requirement by, amongst other things, submitting the necessary documents, the Applicant’s response was that he did, and further stated that he would otherwise not have been paid part of the IQMS payment. I however could not find partial payment alluded to be proof that the Applicant himself submitted the documents.
[21] It was put to the Applicant, during cross questioning, that he was paid in error by the Human Resources department and that he should not have been paid. He maintained that the partial payment would not have been made if he did not submit the documents. But with the Applicant bearing the onus, this was not sufficient. He still needed to place information before me showing that he in fact submitted the document and that the claim by the employer that he should not have been paid was without basis. In any event, I concluded that payment of the IQMS would not be possible in circumstances where the Applicant did not work. Where the Applicant contents otherwise, as he did during the arbitration process, he needed to substantiate this contention by way of presenting evidence in that regard. I therefore cannot find that the employer acted unfairly and can find no good reason to interfere with the decision it (employer) took to deduct a month’s salary as well as not paying the Applicant IQMS pay for the periods of 2016 and 2017.
[22] The Courts now, in a number of judgments, cautioned arbitrators against interference with managerial prerogative and exercise of discretion by employers where such interference is not warranted and have set out the test for interference. In Arries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held that: “there are limited grounds on which an arbitrator, or a court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion. The reason for this is that the ambit of decision-making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for substantial reasons, or based upon wrong principles or in a biased manner.”
[23] Also in the 2016 judgment in the case involving Ga-Segonyana Local Municipality v Venter N.O. and Others; Tlhotlhalemaje, J. held as follows in paragraph [20] “In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others; it was held that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.”
[24] While the judgments in [22] and [23] above related to cases of alleged unfair labour practice relating to promotion, the principle set in relation to unwarranted interference by arbitrators does find application in the present case.
[25] In the premises, I make the following award:
AWARD
[24] The Respondent’s deduction of a month’s salary and its (Respondent) partial payment of the IQMS did not constitute unfair labour practice.
[25] The application is accordingly dismissed, and the Council is directed to close the file.
Monde Boyce
Panelist: ELRC
Province: North West
Applicant: KB MOTHIBI
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Dr Ruth Segomotsi Mompati District offices in Vryburg
Award Date: 2 November 2019
Arbitrator: Monde Boyce
Case No ELRC PSES 322-19/20NW
In the matter between
KB MOTHIBI Applicant
and
DEPARTMENT OF EDUCATION: NORTHWEST Respondent
ARBITRATOR: Monde Boyce
HEARD: 04 October 2019
CLOSING ARGUMENTS: 10 October 2019
DATE OF VARIED AWARD: 02 November 2019
AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] This matter was set down for arbitration at the Dr Ruth Segomotsi Mompati District offices in Vryburg for 04 October 2019. Mr Beek, a practising attorney, appeared for the Applicant while Miss B Phuswane, a Labour Relations Officer, appeared for the employer.
[2] Parties submitted bundles of documents and the proceedings were digitally recorded and typed written notes taken.
[3] Parties requested to make written closing arguments and I gave parties the deadline of 10 October 2019 to forward the closing arguments. Only the employer submitted written closing arguments to the Council on the agreed date. However, it later transpired that the Applicant did submit written closing arguments but forwarded the closing arguments to a fax number appearing on the Council’s letterhead but not used by the Council. The Council immediately forwarded the Applicant’s closing arguments to me immediately it became clear that the Applicant had filed closing arguments, albeit to a wrong fax number. I subsequently considered the applicant’s closing argument and vary the award on my own accord.
THE ISSUE TO BE DECIDED:
[4] I am required to decide whether the Respondent’s decision to deduct a month salary for a period the Applicant was absent from work, and its (Respondent) failure to pay the Applicant amounts in terms of the Integrated Quality Management System (IQMS) constituted unfair labour practice.
[5] Parties also called upon me to decide whether the Applicant was coerced to agreeing to a deduction of a month’s salary in respect of the period he was absent from work and whether the alleged coercion constituted unfair labour practice in terms of Section 186 (2) (a) of the Labour Relations Act 66, 1995 as amended (LRA).
THE BACKGROUND TO THE DISPUTE:
[6] The Applicant is employed as Departmental Head Post Level 2 and is currently based at Thagamoso Primary School and earns a gross salary of R43, 613.22 per month. He was absent from work for a period exceeding four (04) months and, as a result, an amount equivalent to one month’s salary that the Applicant had to pay over twelve (12) months was deducted after a meeting in Mmabatho where the Applicant agreed to the deduction. In March 2019, the Applicant decided to lodge an unfair labour practice dispute to the Council after a grievance he lodged challenging the deduction and partial payment of an IQMS pay was not resolved to his satisfaction. The dispute could not be resolved at conciliation and the Applicant referred the dispute for arbitration. He seeks refund of the amount already deducted and payment of the balance of IQMS pay as relief.
SURVEY OF EVIDENCE AND ARGUMENT:
The Applicant’s Evidence
[7] The Applicant, Mr Kealeboga Brown Mothibi, testified that he has been employed at Thagamoso Primary School where he was transferred to after he had been demoted. He had written a letter on 02 October 2018 to Miss KB Dithejane, the District Director for the Dr Ruth Mompati Segomotsi district about reversal of his salary. In that letter he had referred to the agreement in Mmabatho where he agreed to a deduction of the salary for the month of October 2018.
[8] He wrote the letter out of frustration because he was falling behind on payment for policies, pension fund, medical aid and payment for his children’s education. He wrote the letter because there were threats that he could be charged and that if he did not write the letter, his salary would not be unfrozen. He believed he was forced to write the letter because his salary would remain frozen if he did not. He had suffered because he could not meet his financial obligations. Dr HS Mvula, the then Acting Deputy Director General had, after the meeting in Mmabatho, written a letter to the District Director instructing the District Director to implement what was agreed upon in the meeting in Mmabatho. An amount of R38, 753.88 has been deducted thus far.
[9] He had, on 29 January 2019, written a letter of complaint to the Labour Relations Office complaining about a deduction made. He had, in that letter, requested that the deduction be stopped, and the payments made reversed, but this did not happen, and he decided to refer a dispute to the ELRC.
[10] Regarding the non-payment or partial payment of his Integrated Quality Management System (IQMS), he is the head of the IQMS at the school he is currently at. He had undergone IQMS while he was still a principal. He has a problem with his being partially paid the IQMS for the year 2016. He had submitted the required information for payment of his IQMS. He was paid R1, 781.00. In 2018 he was partially paid an amount of R1, 781.00. He decided to write a letter to Miss Monareng, the Assistant Director: Human Resources, about the partial payment complaining about non-payment of the full IQMS amounts for the two years. He however did not receive a response and he lodged a dispute.
[11] After having lodged the grievance he was called to a meeting with officials of the Department where the District Director was instructed to pay the IQMS for the periods of 2016 and 2018. He however only received partial payment in two amounts of R1, 781.00 and which amounts were paid in August 2019. He believed he should be paid at 1,5% as per the Collective Agreement. He is owed IQMS payment in the amount of R20, 000.00 for the years 2016 and 2017. For the period of 2017 he did not have a school that he was based at. It was not his problem that he was not IQMS’d for that year. He seeks full payment of his IQMS.
The Respondent’s Evidence
[12] The employer did not lead oral evidence and closed its case without calling witnesses.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[13] I have taken into account the evidence and closing arguments by both parties. The Applicant, in the present case, referred an unfair labour practice dispute to the Council alleging unfair conduct on the part of the Respondent. He thus bore the onus to prove such unfair conduct. In support of his claim, the Applicant’s evidence was to the effect that the employer’s deducting a month’s salary was unfair because he was coerced to agree to the deduction and that he should have been paid full IQMS pay for the periods of 2016 and 2017.
[14] Having heard evidence, it is my finding that the claim by the Applicant was not substantiated. In respect of the deduction effected, the Applicant himself agreed to the said deduction following a meeting held in Mmabatho. It was the Applicant who wrote the letter authorizing the employer to deduct a month’s salary that was to be paid over a period of twelve months. It is common cause that the deduction was not unilateral. The employer engaged the Applicant prior to the deduction and the Applicant was fully aware and appreciated the circumstances giving rise to the deduction.
[15] It is now common cause that the Applicant was absent from work for a period of four (04) months. The Applicant dismally failed to explain why the principle of no-work-no-pay should not have applied. How the Applicant would expect to be paid for the period he was absent from work, especially for such a considerable number of days, defeats logic. It would not be unreasonable for one to expect, in the circumstances, the Applicant to be the one showing remorse and taking full responsibility for his conduct.
[16] The Applicant is not a free agent but is an educator and has, as his primary duty, prioritizing the interests of learners. In that regard, the Applicant’s claim does not arise in an instance where he has been an exemplary educator. He (Applicant), during the arbitration process, did not explain why he absented himself for such a long period and why the employer’s deducting the month’s salary was not warranted. His only basis for challenging the deduction was that he was coerced, a claim that I also find to lack basis.
[17] The Applicant, in supporting the contention that he was coerced, made reference to utterances by Dr Mvula, the then Acting Deputy Director General, who stated during the meeting that he would institute disciplinary action against the Applicant. According the Applicant, it was the threat of disciplinary action and freezing of his salary that made him agree to the deduction. But it is my finding that there was nothing untoward about the employer stating its intention to take disciplinary action in instances where the Applicant had been absent from work for such a long period of time and freezing his salary for that matter.
[18] The Applicant, in his arguments, referred me to the case of Eastwood v Shepstone 1902 TS294 at 302, where the Court stated as follows: “It was contended, in the alternative that an agreement was entered into as a consequence of undue influence by the Defendant had substantial power in the Plaintiff’s place of employment and as a consequence of his position as senior captain and her position as flight attendant and that the Plaintiff had signed an agreement as a result of the Defendant’s undue influence.” While the Applicant argued in this regard and suggested that I should find that he wrote the letter under duress, the contrary, as I stated in the preceding paragraphs, appeared to be true.
[19] The situation the Applicant found himself in was his own doing and I find his crying foul when disciplinary action was threatened disingenuous. The utterances by Dr Mvula were as a consequence of the Applicant’s own action where he was absent from work without permission and where the employer took disciplinary action, as Dr Mvula intimated, same would have been as a result of unbecoming conduct on the part of the Applicant. Duress, in such circumstances, cannot be said to have occurred. The letter the Applicant wrote was written ten (10) days after the meeting and he, nowhere in the letter he wrote, stated that he had been coerced to write it and was doing so under duress.
[20] Regarding non-payment or partial payment of the IQMS, the Applicant conceded that a process, including submission of relevant documentation, needed to be followed for payment of the IQMS. Asked during cross examination whether he complied with this requirement by, amongst other things, submitting the necessary documents, the Applicant’s response was that he did, and further stated that he would otherwise not have been paid part of the IQMS payment. I however could not find partial payment alluded to be proof that the Applicant himself submitted the documents.
[21] It was put to the Applicant, during cross questioning, that he was paid in error by the Human Resources department and that he should not have been paid. He maintained that the partial payment would not have been made if he did not submit the documents. But with the Applicant bearing the onus, this was not sufficient. He still needed to place information before me showing that he in fact submitted the document and that the claim by the employer that he should not have been paid was without basis. In any event, I concluded that payment of the IQMS would not be possible in circumstances where the Applicant did not work. Where the Applicant contents otherwise, as he did during the arbitration process, he needed to substantiate this contention by way of presenting evidence in that regard. I therefore cannot find that the employer acted unfairly and can find no good reason to interfere with the decision it (employer) took to deduct a month’s salary as well as not paying the Applicant IQMS pay for the periods of 2016 and 2017.
[22] The Courts now, in a number of judgments, cautioned arbitrators against interference with managerial prerogative and exercise of discretion by employers where such interference is not warranted and have set out the test for interference. In Arries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held that: “there are limited grounds on which an arbitrator, or a court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion. The reason for this is that the ambit of decision-making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for substantial reasons, or based upon wrong principles or in a biased manner.”
[23] Also in the 2016 judgment in the case involving Ga-Segonyana Local Municipality v Venter N.O. and Others; Tlhotlhalemaje, J. held as follows in paragraph [20] “In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others; it was held that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.”
[24] While the judgments in [22] and [23] above related to cases of alleged unfair labour practice relating to promotion, the principle set in relation to unwarranted interference by arbitrators does find application in the present case.
[25] In the premises, I make the following award:
AWARD
[24] The Respondent’s deduction of a month’s salary and its (Respondent) partial payment of the IQMS did not constitute unfair labour practice.
[25] The application is accordingly dismissed, and the Council is directed to close the file.
Monde Boyce
Panelist: ELRC