Case Number: PSES 526-19/20EC
Province: Eastern Cape
Applicant: NAPTOSA obo Branwell Rohan Hill
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Buffalo City Metropole Office, Bundy Park, Buffalo Road, Schornville, King Williams Town
Award Date: 7 November 2019
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: PSES 526-19/20EC
Date of Award: 7 November 2019
In the ARBITRATION between:
NAPTOSA obo Branwell Rohan Hill
(Union / Applicant)
Department of Education: Eastern Cape
Applicant’s representative: Mr Adams
Applicant’s address: PO Box 34700,
Newton Park, Port Elizabeth
Telephone: 041 364 0399
Telefax: 041 364 0259
Respondent’s representative: Mr Hena
Respondent’s address: Buffalo City Metropole
Bundy Park, Buffalo Road, Schornville
King Williams Town, 5600
Telephone: (043) 7351820
Telefax: (043) 37351993
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 33A(4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held at the Buffalo City Metropole Office, Bundy Park, Buffalo Road, Schornville, King Williams Town on 6 November 2019 and the proceedings were electronically recorded. The Applicant, Branwell Rohan Hill through his Union, NAPTOSA referred an enforcement dispute to the ELRC. The Applicant was represented by Mr Adams, an official of NAPTOSA. The Respondent, Department of Education – Eastern Cape was represented by Mr Hena, an Assistant Director: Labour Relations.
ISSUE TO BE DECIDED
2. A dispute concerns the refusal and or failure of the Respondent to comply with ELRC Resolution 3 of 2006 to upgrade the salary of the Applicant as well as the Applicant’s school, Westbank Primary School from a P3 School to a P4 school due to the increase in number of pupils for the past two consecutive years.
BACKGROUND TO THE ISSUES
3. The following are accepted by the parties as common cause fact:
3.1 The Applicant was appointed as a P3 Principal at Westbank Primary School on 15 March 2011.
3.2 In 2017, the Post-Provisioning Norm (PPN) or staff establishment of the Applicant’s School increased to 29 and in 2018, the staff establishment increased to 30 and in 2019, and the staff establishment increased to 32.
3.3 In terms of ELRC Resolution 3 of 2006 a school is upgraded to a higher grade level if, for two consecutive years, the educator posts allocated to the school reaches or exceeds the number of posts required for upgrading of the school as indicated in the table. According to the table a P4 school must have between 25-45 education posts on the departmental establishment of the school and the minimum posts required for upgrading is 26 posts and the number post to which the establishment must drop before the institution will be downgraded is 22 posts.
3.4 As from 1 January 2019, the Applicant school should have been upgraded from P3 to P4 School in that for the past three consecutive years, the number of posts were in excess of 29 posts.
3.5 Currently the Applicant is at notch 297 (R540 534 per annum) and he should have moved as at 1 January 2019 to notch number 303. However, as at 1 January 2019 he was earning R503 826 per annum and he was therefore entitled to move 6 notches as from 1 January 2019. Therefore, 6 notches would have increase the Applicant salary to R570 519 per annum when considering the new notch scales. Considering the salary increase of 1 April 2019 and the salary progression of 1 July 2019 the Applicant should have been earning R571 188 per annum. Therefore, back-pay payable is calculated at R67 362.00 for the period.
3.6 The District Office had already made a recommendation to the Superintendent General requesting that the Applicant salary be retrospectively upgraded as is envisaged in terms of paragraph 3.5.
SURVEY OF EVIDENCE AND ARGUMENT
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
5 The Applicant testified under oath and confirmed the correctness and truthfulness of submissions made during narrowing of issues. The Respondent did not cross-examine the Applicant, therefore his version was not challenged. The Respondent indicated that they took no issue with the Applicant’s evidence. The Respondent did not call any witnesses to dispute the versions presented by the Applicant.
6 The difficulty one has is that the resolution refers to salary levels 10, 11 and 12 for a P3, P4 and P5 Principals. Whereas, the Personnel Administration Measures (PAM) more specifically clause A3.2 refers to minimum and maximum notches and identifies the different Principal gradings such as P2, P3, P4 and P5.
7 Clause B.8.6.1 of PAM provides that the salary of an educator who is promoted must be adjusted to the minimum notch of the salary range applicable to the higher post level, provided that the educator’s salary is at all times increased by at least 6% irrespective of whether the current notch code falls below or within the higher salary range.
8 Clause B8.6.2 of PAM further provides that the salary of an educator who is appointed to a graded principal post, with the higher grade than his current post, must be adjusted to the minimum notch of the salary range applicable to the higher grade post, provided that the educator salary is increased at all times by at least 6%, irrespective of whether the current notch code falls below or within the higher salary range.
9 The Applicant when he qualified for upgrading was already at a higher salary notch than the starting salary notch of a P4 post and therefore he was entitled to a 6 notch increase or adjustment. Each notch equates to 1% and therefore he was entitled to a 6% increase or adjustment.
10. The Respondent, the Department of Education: Eastern Cape is in breach of ELRC Resolution 3 of 2006 when they failed to upgrade the salary of the Applicant as well as the Applicant’s school, Westbank Primary School from a P3 School to a P4 school due to the increase in number of pupils for the past two consecutive years.
11 The Respondent is directed to upgrade firstly, Westbank Primary School from a P3 school to P4 School backdated to 1 January 2019. The Respondent is further directed to upgrade the Applicant’s salary from P3 to P4 and therefore upgrade his salary scale per annum from R503 826 to R570 519 per annum backdated to 1 January 2019. Considering the salary increase of 1 April 2019 and the salary progression of 1 July 2019, the Applicant’s annual salary notch should be currently be at R571 1888 per annum.
12 The Respondent is directed to immediately upgrade the Applicant salary notch to R571 188 per annum and to pay the Applicant back-pay in the amount of R67 362.00 by no later than 31 January 2020.
Name: Jonathan Gruss