Case Number: PSES527-19/20EC
Province: Eastern Cape
Applicant: NAPTOSA OBO HOTELE ZA
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 19 February 2020
Arbitrator: ADV L.CHAROUX
Arbitrator: ADV L.CHAROUX
Case Reference no: PSES527-19/20EC
Date of Award: 19 February 2020
In the arbitration between
NAPTOSA OBO HOTELE ZA APPLICANT
DEPARTMENT OF EDUCATION EC RESPONDENT
Employee’s representative: Adv G D Saayman obo NAPTOSA
Telephone number: 0825191005
Employer’s representative: Mr X Sam
Telephone number: 0832078359
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down for an arbitration hearing on 28 January 2020 in Queenstown. The Applicant was represented by Adv. G D Saayman of NAPTOSA. The Respondent was represented by Mr X Sam from the DOE. The Applicant alleged an unfair labour practice regarding benefits. The Applicant is seeking compensation for acting allowance from March 2017 – December 2018. The Respondent denied that an unfair labour practice was committed against the Applicant. The parties handed in 2 bundles. The parties filed written heads of argument that I received on 5 February 2020.
ISSUES TO BE DECIDED
2. Did the Respondent commit an unfair labour practice against the Applicant related to benefits?
3. If so, is the Applicant entitled to payment?
COMMON CAUSE FACTS
4. The Applicant is a PL1 Educator at Dalubuzwe Senior Primary School teaching Grade 1 - 7 .
5. The Dalubuzwe School is in the Ladyfrere District.
6. Three state paid teachers are employed at the school.
7. The Applicant has been teaching at the school since 2015.
8. The Applicant has been in the employ of the Respondent since 2008.
9. The Applicant took care of the principal’s duties (finances of the school, progress reports, schedules) whilst she was on sick leave.
The Applicant’s evidence
10. The Applicant said a letter from the SGB to the Circuit Manager confirmed his appointment to the acting Principal position at the school.
11. The SGB addressed the following letter to the Circuit Manager for the Ladyfrere District Office on 10 March 2017:
The SGB of the above mentioned school, held a Meeting on the 10th day of March 2017 to discuss the appointment of an acting Principal.
The SGB discussed and checked the details of the acting Principal.
They all agreed upon the appointment of Mr Zanele Amos Hotele to be an acting Principal in the place of Miss Lindelwa Zisile who is sick at the moment. He started to act from 10th March 2017 still (sic) to date.
We would be glad if our request will receive your consideration (sic) attention.”
12. The Applicant said he attended to everything the principal attended to at the school including the finances of the school, the progress reports for learners, and the schedules. He said Mr Madliwa, the Circuit Manager put pressure on him to attend to the financial books. He said he asked Mr Madliwa to write a letter to confirm that he was the Acting Principal as he had nothing to prove that he was the acting principal. He said his union at the time, SADTU, also contacted Madliwa to write a letter confirming his appointment as Acting Principal of the school.
13. On 20-8-2018 Mr Madliwa wrote the following letter:
“To whom it may concern
This is to certify that Mr Z.A.Hotele, Persal No. 53662865, with ID No: 690101 8771 082, is currently acting in the place of the Principal, Ms L.E.Zisilse, who is on sick leave.
He has been asked by the School Governing Body.
Hope you will find this information helpful and in order.
Thanking you in advance.
14. The Applicant said Mr Madliwa told him at the end of 2018 when he asked him who was going to pay him that no-one was going to pay him.
15. The Applicant said he did not have an appointment letter from the DOE.
16. The question was put to the Applicant what indicated to him that he was appointed. He said that the SGB and the community asked him to do things.
17. The Applicant said he stopped acting on 31 December 2018 when the principal returned to her position.
18. Ms F Kwanini, a parent component of the SGB testified that the SGB agreed that the Applicant should be the Acting Principal. She said the SGB assumed the DOE would pay the Applicant.
19. Mr W W Gantsho, the chairperson of the SGB testified that Mr Madliwa phoned him and said the SGB must “see what to do” regarding the issue about an acting principal. He said the SGB thought that meant to elect a principal. He said the SGB took it “in their own hand to appoint someone”.
20. Mr G Madliwa testified that someone from the SGB phoned him and told him that the Applicant would be the Acting Principal. He could not recall who phoned him. He said he went to HR to check the possibility of paying the Applicant to act in the position of the principal who was ill. HR advised him that it was not possible to pay the Applicant because a substitute teacher, Mrs Mthwaza was already appointed in the position of Ms Zisile to take care of the teaching component of her duties. Mrs Mthwaza was employed at the request of the school. HR advised Madliwa that the school principal was also still on the payroll. Madliwa said he communicated what HR told him to the Applicant. He said he received a letter from SADTU and explained the situation to them. After receiving several calls from the union and the Applicant he wrote the letter of 20-8-2020 stating clearly that the Applicant was asked by the SGB to act in the Principal’s position whilst she was on sick leave.
Madliwa said he explained to the Applicant that nobody from the DOE appointed him to act in the Principal’s position and that the DOE would not pay him. Madliwa said he accepted that the Applicant attended to work related to the principal’s duties and did not tell him that he could not do the work.
Mr Saayman’s arguments:
21. The ELRC Collective Agreement 8 of 2002 (“CA”), stipulates the conditions under which an employee will be entitled to an acting allowance. The CA states that an acting allowance will be paid to an educator who acts in a higher vacant and funded post if the period is longer than 12 weeks and limited to 12 months. The CA stipulates that an acting allowance will be paid if the incumbent is inter alia on sick leave.
22. In the current case, the incumbent was on sick leave for more than 12 weeks. In fact the incumbent was on sick leave for almost 2 years. The Applicant acted in 1 post level higher. The school is a P1 school, meaning that a principal of a P1 school is on the same post level as an HOD at any PR,2,3 or 5 school.
23. The PAM of 12 February 2016 complements the CA.
24. The PAM at Chapter C4 deals with acting allowance and stipulates that in extraordinary circumstances the employer may deviate from appointing an employee in writing.
25. Mr Saayman argued that no public school can operate without a school principal. Section 16(3) of SASA stipulates that the professional management of a school must be undertaken by the principal under the authority of the Provincial Head of Department. The core duty of the school principal is to manage teaching and learning. Without the school principal chaos will ensue.
26. Section 23 (1) of SASA stipulates that a principal acts in his or her official capacity in the SGB. Meaning the principal represents the employer (HOD).
27. The HOD allowed the applicant to attend official departmental meetings. The applicant incurred personal travel costs to attend meetings on behalf of the respondent at Queenstown which is 40 km one way.
Mr Sam’s arguments
28. Both the CA and the PAM state that an educator must be appointed in writing by the employer.
29. The Applicant was never appointed to the position of Acting Principal by the DOE.
ANALYSIS OF EVIDENCE AND ARGUMENTS
30. After a consideration of the evidence led and the arguments presented by both parties I find that the Employer party did not commit an unfair labour practice against the Applicant for the following reasons:
31. The CA Number 8 of 2002 states as follows regarding acting allowances:
“1. An educator, complying with the minimum requirements in paragraph 2 (2) of Chapter B of the Personnel Administration Measures, shall be appointed, in writing, by the employer, to act.
2. An educator may only be appointed to act in a post that is one post level higher than his/her current position.
3. Within fourteen days of notification by the employer, a School Governing Body/Council for a Further Education and Training institution shall be requested to recommend to the employer, the educator to be appointed to act in a higher post where the permanent incumbent is absent.
4. In extraordinary circumstances, the employer may deviate from clauses 2 and 3, above (including instances where the Governing Body/Council for a Further Education and Training institution fails to make a recommendation).” (my emphasis)
32. The PAM , 12 February 2016 states as follows regarding an acting allowance:
“C.4.1.2 An educator, complying with the minimum requirements in paragraph B.3.2 of Chapter B, must be appointed in writing by the employer to act.
C.4.1.4 Within fourteen days of notification by the employer, an SGB will be requested to recommend to the employer the educator to be appointed to act in a higher post.
C.4.1.5 In extraordinary circumstances, the employer may deviate from C.4.1.1 and C.4.1.2 above ( including instances where the SGB fails to make a recommendation).“
33. The employer did not appoint the Applicant to act in the position of the Principal in writing.
34. The employer also did not appoint the Applicant in “extraordinary circumstances”. Extraordinary circumstances refer to when the employer who must authorize the appointment fails to put the appointment in writing. Extraordinary circumstances does not mean that if the employer decides not to appoint an employee in an acting position the SGB or the community can make the decision to appoint an educator to an acting position if in their view such an appointment is necessary. The Applicant’s appointment was never authorised by the DOE. The case law referred to by Mr Saayman in his heads of argument refers to instances where the DOE authorized the appointment but did not put the authorization in writing. In the Applicant’s case there is no proof of any authorization by the DOE, and the employer party denies that they ever appointed the Applicant to the acting position.
35. The SGB sent a letter to the Circuit Manager on 10 March 2017 stating that the SGB all agreed upon the appointment of the Applicant to be the acting Principal in the place of Ms Lindelwa Zisile who was sick. The SGB stated that “we would be glad if our request will receive your consideration (sic) attention”. (my emphasis)
36. The SGB was never informed that their request for the appointment of the Applicant to the position of Acting Principal was considered and confirmed. Mr Gantsho testified that Mr Madliwa told him to “see what to do” regarding the issue about an acting principal. He said the SGB thought that meant to elect a principal, and that the SGB took it “in their own hand to appoint someone”.
37. The Applicant in his grievance to the DOE (page 12 Bundle B) regarding the dispute stated that “I was appointed by the SGB and the staff to act in the place of the principal ”.
38. Mr Madliwa said he told the Applicant that he would not get paid as HR advised him that they were already paying extra for Mrs Mthwasa and still paying Ms Zisile. The Applicant confirmed that Madliwa told him that he would not be paid.
39. The Applicant and his union at the time, SADTU, insisted that Mr Madliwa wrote a letter stating that he was appointed to the position of Acting Principal. In the letter Mr Madliwa clearly stated that the Applicant was appointed by the SGB.
40. In my view the Applicant was well aware that his appointment by the SGB to act in the principal’s position was not official. He stated that he was concerned that he did not receive an appointment letter from the DOE.
41. The Applicant’s, Mr ZA Hotele’s, application is dismissed.
42. I make no order as to costs.
SIGNED AND DATED ON 19 FEBRUARY 2020
ADVOCATE L CHAROUX