Case Number: PSES 409-19/20 EC
Province: Eastern Cape
Applicant: SAOU obo V Goliath
Respondent: Provincial Department of Education, Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: offices of the Department of Education
Award Date: 21 November 2019
Arbitrator: Theresa Malgas-Senye
Case Number: PSES 409-19/20 EC
Commissioner: Theresa Malgas-Senye
21 November 2019
In the ARBITRATION between
SAOU obo V Goliath
Provincial Department of Education, Eastern Cape
Applicant’s representative: Mr. Goliath
Applicant’s address: SAOU
Telephone: 083 665 6996
Respondent’s representative: Mr. Eskok
Respondent’s address: Department of Education
Telefax: 086 586 3862
DETAILS OF HEARING AND REPRESENTATION
1. This unfair labour practice dispute was arbitrated in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (hereinafter referred to as the Act). The hearing was held at the offices of the Department of Education at approximately 09h00 on 16 October 2019 and was not digitally recorded. The parties elected to file written submissions and filed on 1 November 2019.
2. The Applicant was present and an official of SAOU represented him.
3. The Respondent, the Provincial Department of Education: Eastern Cape was represented by Mr. Eskok from its Labour Relations department.
ISSUE TO BE DECIDED
4. The issue to be decided concerns whether the Applicant was entitled to as a result of IQMS to a grade progression or pay progression.
SURVEY AND ANALYSIS OF EVIDENCE AND ARGUMENTS
5. This is a brief summary of the evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand.
6. The Applicant and Respondent did not call any witnesses, but relied on written submissions and arguments filed.
7. The ELRC Collective Agreement 1 of 2012 (Paragraph 5.1.10) Occupation Specific Dispensation (OSD) introduced an occupation specific remuneration and career progression dispensation for Education Therapists, Counselors and Psychologists employed in public education.
8. Paragraph 5.1.10 of ELRC Collective Agreement 1 of 2012 has been incorporated into Chapter B.3.5.5 of the Personal Administrative Measures (PAM) 12 February 2016.
9. The purpose was to provide within the OSD for:
o Career pathing opportunities based on competencies, experience and performance;
o Pay progression within the relevant grades (scales) based on performance;
o Grade progression, where applicable, based on performance;
o Recognition of appropriate experience for the purposes of grade progression;
o Recognition of performance for accelerated progression to higher grades and pay progression within a salary grade.
10. The parties requested to submit written closing arguments on 1 November 2019. At the time of writing this award, both submissions had been received.
11. The parties submitted on common issues that there are no issues in dispute, save to say the Respondent is in the process of implementing the payment of the Applicant.
12. Mr. V. Goliath was appointed as a school Psychologist with effect from 1 January 1984. His salary was calculated correctly with appointment as Psychologist according to the personnel administrative standards (PAS).
13. With effect from 1 July 1996, Mr. Goliath’s rank changed from Assistant Chief Education Specialist (Post Level 4) to first Education Specialist (Post Level 3)-Introduction of Broadbanding.
14. It is further common cause that the rank of Therapist was only implemented on Persal with effect from 1 April 2003. Mr. Goliath’s rank was never changed according to Collective agreement 3 of 2009 Paragraph 3.2 (There is no separate designation for the category of counselor on Persal. Counselors would rather either be appointed as teachers or Psychologists)- and his salary was determined as that of an educator.
15. The officer also received recognition of previous experience that was calculated to all educators and related ranks introduced by Collective Agreement 4 of 2009.
16. The parties agreed and submitted as common cause that if Mr. Goliath’s rank had been changed with effect from 1 April 2004 his salary and OSD would have been calculated correctly with effect from 1 July 2010. This was not done by the Respondent. The calculations owed to the Applicant by the Respondent are attached and amount to R1 439 450.76 (Annexure A and B attached).
The period in respect of Annexure A applies to the period from 01 01 2008 to 01 07 2019. The period in respect of Annexure B applies is 01 01 2018 to 31 / 10 / 2019.
Furthermore Annexure A reflects the total backpay due adjustments over the period 01 01 2008 to 01 07 2019. Furthermore Annexure B reflects the sum of R 1 439 450.76 as backpay and pay progression is due owing and payable by the respondent to the applicant.
17. Section 186(2) of the LRA provides:
(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;”
18. Clause 69.1 of Part C, Dispute Resolution Procedures, ELRC Constitution, Collective Agreement No 6 of 2016, also provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of the section 33 and section 33A of the Act.
19. Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
69.2.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and
69.2.2 subject to clause 7.5 any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
20. The Respondent must comply with the terms and conditions in the Collective agreement as well as with PAM that form part of the Applicant’s conditions of service.
21. I now turn to the issue of relief. The Applicant seeks that the Respondent pays his pay progression in the amount of R 1 439 450.76
22. In the premise, I render the following award:
23. The Respondent, the Provincial Department of Education: Eastern Cape is ordered comply with the terms and conditions of the mentioned collective agreement as well the relevant provisions as contained in PAM.
24. The Applicant, Mr V Goliath, is entitled to payment of the amount of R 1 439 450.76 as set out above.
25. The Respondent, the Provincial Department of Education: Eastern Cape is ordered to pay the Applicant, Mr V Goliath the amount of R1 439 450,76 on or before 1 December 2019.
Commissioner: Theresa Malgas-Senye