PSES647-19/20GP
PSES647-19/20GP
Award Date:
20 February 2020
Case Number: PSES647-19/20GP
Province: Gauteng
Applicant: PSA obo Machaka & 17 Others
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: Westcol TVET College of Education Boardroom, Randfontein.
Award Date: 20 February 2020
Arbitrator: Paul Phundu
Panellist: Paul Phundu
Case No: PSES647-19/20GP
Date of Award: 20 February 2020
In the matter between:
PSA obo Machaka & 17 Others Applicants
And
Department of Higher Education and Training Respondent
Union/Applicants representative: Mr B. Sibeko
Union/Applicants address:
P O Box 30566
Braamfontein 2107
Cell: 082 8808997
Respondent’s representative: Mr D Parker
Respondent’s address:
123 Francis Baard Street
Pretoria 0002
Tel: 012 312 5314
DETAILS OF HEARING AND REPRESENTATION
[1] This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and hereinafter referred to as the LRA. The matter was set-down for arbitration in terms of Section 24 (2), 24 (5) of the LRA. That is, interpretation and application of a collective agreement. The collective agreement being Resolution number 8 of 2002 payment of acting allowances for an Educator acting in a higher post where the permanent incumbent is absent.
[2] The arbitration was conducted on 17 February 2020 at Westcol TVET College of Education Boardroom, Randfontein.
[3] The Applicants were present at the arbitration hearing and were represented by, Mr Boesman.Sibeko, a Union Official from the PSA. The Respondent was represented by, Mr Doctor Parker, the Deputy Principal-Corporate Services.
[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
[5] Both parties agreed to a bundle of documents to be used at the arbitration.
ISSUE TO BE DECIDED
[6] I am called upon to determine whether or not the Respondent has correctly interpreted and applied Resolution number 8 of 2002, that is, payment of acting allowances to an Educator acting in a higher post where the permanent incumbent is absent.
BACKGROUND TO THE ISSUE
[7] The Applicants are in the employ of the Department of Education as Educators. They declared a dispute concerning an interpretation and/or application of a collective agreement (Resolution 8/2002) in January 2020.
[8] Conciliation failed and the certificate of non-resolution of the dispute was issued and pre-arbitration minutes submitted to the Council. The matter proceeded to arbitration. In terms of relief, the Applicants wished to be paid an acting allowance in accordance to the provisions of the Acting Allowance ELRC Resolution 8 of 2002.
SURVEY OF EVIDENCE AND ARGUMENT
ARGUMENT FOR THE APPLICANTS
[9] The applicants’ had one witness who testified in support of their case, the evidence was briefly as follows:
[10] Ms Mogadi Elsa Machaka testified under oath that some of them were appointed as PL3 Educators whilst others were appointed as PL2 Educators. All PL3 Educators were appointed to act as Campus Managers. Whereas PL2 Educators were appointed to act in higher positions, that is, PL3 Educators. Ms Mogadi Elsa Machaka was appointed to act in position of Mr Tony Ferita who was seconded to a corporate office. They were appointed to act in higher positions on 10 March 2017. They were not given formal letters to act in higher positions. She said they acted in higher positions and were not paid. She said the respondent failed to implement clause 5 (1 (e) and clause 6 of the ELRC Resolution 8 of 2002. She said Annexure “A” Clause 5 (1 (e) of the Resolution stipulates that “An acting allowance will be paid only to an educator who acts: (1) In such a post where the permanent incumbent is absent due to the following (e) Secondment. Clause 2 (1) stipulates that “To the attached document (Annexure A) entitled, “Acting Allowances for an educator acting in a higher post where the permanent incumbent is absent”.
[11] After they had enquired about the acting allowance, they received a written directive from the Principal stating that they were not formally appointed to act in higher positions. The Applicants asked for payment of acting allowance and the respondent refused to pay them.
[12] Under cross-examination the applicant stated that they acted in higher positions without payment of an acting allowance. She said they were appointed by the Principal to act in higher positions. The applicant stated that they did not accept the letter to assist in higher positions without payment. The applicant conceded that they did not receive a letter from the Department of Higher Education and Training that says they are appointed to act in higher positions. The applicant said in all the college correspondence she was referred to as an Acting Campus Manager.
[13] Under re-examination the applicant conceded that they are still waiting for a formal letter authorizing them to act in higher positions and entitling them to receive an acting allowance.
ARGUMENT FOR THE RESPONDENT
[14] The respondent had one witness who testified in support of its case. The evidence was briefly as follows:
[15] Ms Marie Du Randt testified under oath that she is employed by the Respondent as a Human Resources Manager. One of her responsibilities, amongst others, is to handle selection, recruitment and appointment processes. She said Chapter B, clause 2.2 of Personnel Administration Measures stipulates that all employees will be appointed to act in higher positions in writing. She said the applicants were not appointed in writing to act in higher positions but were requested to assist in carrying out the duties as Campus Managers as well as Educators duties on level PL 3. The applicants were not entitled to an Acting Allowance because there were no vacant and funded positions available.
[16] Under cross-examination the respondent stated the Principal asked some PL 3 Educators to assist as Campus Managers. Mr Toni Ferita , who was the Campus Manager was transferred and seconded to corporate office. His position was not vacant. She said it was the Department of Higher Education and Training’s call to confirm acting appointments. There is no written confirmation from the Department of Education and Training allowing or recommending the applicants to act in higher positions.
ANALYSIS OF EVIDENCE AND ARGUMENT
[17] ELRC Resolution 8 of 2002 is an agreement on payment of acting allowances for an educator acting in a higher post where the permanent incumbent is absent, the purpose of this agreement is to determine a policy on acting allowance and compensation to be paid to an educator appointed to act in a higher post.
[18] “Educator” means educator as defined in the Employment of Educators Act, 1998 (EEA).
[19] Annexure “A” clause 3 of Resolution 8 of 2002 stipulates that: “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”.
[20] Annexure “A” clause 5 of the Resolution stipulates that “An acting allowance will be paid only to an educator who acts:
(1) in such a post where the permanent incumbent is absent due to the following:
(a) Maternity, (b) Sick leave, (c) Study Leave, (d) Suspension, (e) Secondment
(2) If the period of appointment is longer than twelve weeks; but limited to a maximum of twelve months”.
(b) Clause 2 (1) stipulates that “To the attached document (Annexure A) entitled, “Acting Allowances for an educator acting in a higher post where the permanent incumbent is absent”.
[21] The applicants failed to indicate who they replaced and whether they acted in positions where the incumbents were seconded or not. Only one incumbent’s name was mentioned. The applicant said they were all given acting letters but refused to sign the letters. In my view, the failure to acknowledge and sign the acting letters as requested by the respondent is an indication that the alleged offer of acting appointment was rejected by the applicants. The applicants conceded that they were not given formal letters by the Department of Higher Education and Training to act in higher positions. It is my finding that there was no proof before me that proved that the applicants were formally asked to act in higher positions. The letter that was presented in these proceedings was specific in its content that it was a letter requesting them to assist the respondent in performing tasks that were performed by campus managers and other educators in higher positions. The applicants’ voluntarily accepted the request to assist and performed the tasks. The very same letter stated that the issue of acting allowance was receiving attention and was not yet finalised by the Department of Higher Education and Training. It is my finding that the respondent did not fail to implement clause 5 (1) (e) and clause 6 of the ELRC Resolution 8 of 2002. The reason I say so is because they were not formally authorised and permitted to act in higher positions. There was nothing that said they will act from a certain date to certain date for a particular period and in turn they will be remunerated for acting in such positions.
[22] The applicants failed to prove, on a balance of probability, that they were formally asked and authorised to act in higher positions. The applicants also failed to prove that they accepted the alleged offer to act in higher positions. The applicants’ representative contradicted herself, she said they did not accept the request to assist but confirmed under cross-examination that they are presently assisting and are still performing the duties as requested in the letter. The applicant did not dispute the argument that it was only the Department of Higher Education and Training that has the authority to appoint PL4 and PL5 educators. They also did not dispute the argument that the Principal can only recommend the appointment of PL1 to PL3 educators. It is my finding that there is no formal agreement entered into between the parties confirming that the applicants are acting in higher positions.
[23] I accept the respondent’s argument that Chapter B, clause 2.2 of the Personnel Administration Measures (PAM) stipulates that all employees will be appointed to act in higher positions in writing. In this case the applicants were not appointed to act in higher positions. I am convinced by the respondent’s argument that the applicants are not entitled to an Acting Allowance because there are no vacant and funded positions available.
AWARD
[24] The applicants have failed to discharge the onus that the Respondent had failed to implement the provisions of Resolution 8 of 2002 and further determine that the applicants are not eligible for an acting allowance.
[25] The application is dismissed and the Applicants are not entitled to any relief.
ELRC PART-TIME PANELLIST: PAUL PHUNDU
Province: Gauteng
Applicant: PSA obo Machaka & 17 Others
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: Westcol TVET College of Education Boardroom, Randfontein.
Award Date: 20 February 2020
Arbitrator: Paul Phundu
Panellist: Paul Phundu
Case No: PSES647-19/20GP
Date of Award: 20 February 2020
In the matter between:
PSA obo Machaka & 17 Others Applicants
And
Department of Higher Education and Training Respondent
Union/Applicants representative: Mr B. Sibeko
Union/Applicants address:
P O Box 30566
Braamfontein 2107
Cell: 082 8808997
Respondent’s representative: Mr D Parker
Respondent’s address:
123 Francis Baard Street
Pretoria 0002
Tel: 012 312 5314
DETAILS OF HEARING AND REPRESENTATION
[1] This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and hereinafter referred to as the LRA. The matter was set-down for arbitration in terms of Section 24 (2), 24 (5) of the LRA. That is, interpretation and application of a collective agreement. The collective agreement being Resolution number 8 of 2002 payment of acting allowances for an Educator acting in a higher post where the permanent incumbent is absent.
[2] The arbitration was conducted on 17 February 2020 at Westcol TVET College of Education Boardroom, Randfontein.
[3] The Applicants were present at the arbitration hearing and were represented by, Mr Boesman.Sibeko, a Union Official from the PSA. The Respondent was represented by, Mr Doctor Parker, the Deputy Principal-Corporate Services.
[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
[5] Both parties agreed to a bundle of documents to be used at the arbitration.
ISSUE TO BE DECIDED
[6] I am called upon to determine whether or not the Respondent has correctly interpreted and applied Resolution number 8 of 2002, that is, payment of acting allowances to an Educator acting in a higher post where the permanent incumbent is absent.
BACKGROUND TO THE ISSUE
[7] The Applicants are in the employ of the Department of Education as Educators. They declared a dispute concerning an interpretation and/or application of a collective agreement (Resolution 8/2002) in January 2020.
[8] Conciliation failed and the certificate of non-resolution of the dispute was issued and pre-arbitration minutes submitted to the Council. The matter proceeded to arbitration. In terms of relief, the Applicants wished to be paid an acting allowance in accordance to the provisions of the Acting Allowance ELRC Resolution 8 of 2002.
SURVEY OF EVIDENCE AND ARGUMENT
ARGUMENT FOR THE APPLICANTS
[9] The applicants’ had one witness who testified in support of their case, the evidence was briefly as follows:
[10] Ms Mogadi Elsa Machaka testified under oath that some of them were appointed as PL3 Educators whilst others were appointed as PL2 Educators. All PL3 Educators were appointed to act as Campus Managers. Whereas PL2 Educators were appointed to act in higher positions, that is, PL3 Educators. Ms Mogadi Elsa Machaka was appointed to act in position of Mr Tony Ferita who was seconded to a corporate office. They were appointed to act in higher positions on 10 March 2017. They were not given formal letters to act in higher positions. She said they acted in higher positions and were not paid. She said the respondent failed to implement clause 5 (1 (e) and clause 6 of the ELRC Resolution 8 of 2002. She said Annexure “A” Clause 5 (1 (e) of the Resolution stipulates that “An acting allowance will be paid only to an educator who acts: (1) In such a post where the permanent incumbent is absent due to the following (e) Secondment. Clause 2 (1) stipulates that “To the attached document (Annexure A) entitled, “Acting Allowances for an educator acting in a higher post where the permanent incumbent is absent”.
[11] After they had enquired about the acting allowance, they received a written directive from the Principal stating that they were not formally appointed to act in higher positions. The Applicants asked for payment of acting allowance and the respondent refused to pay them.
[12] Under cross-examination the applicant stated that they acted in higher positions without payment of an acting allowance. She said they were appointed by the Principal to act in higher positions. The applicant stated that they did not accept the letter to assist in higher positions without payment. The applicant conceded that they did not receive a letter from the Department of Higher Education and Training that says they are appointed to act in higher positions. The applicant said in all the college correspondence she was referred to as an Acting Campus Manager.
[13] Under re-examination the applicant conceded that they are still waiting for a formal letter authorizing them to act in higher positions and entitling them to receive an acting allowance.
ARGUMENT FOR THE RESPONDENT
[14] The respondent had one witness who testified in support of its case. The evidence was briefly as follows:
[15] Ms Marie Du Randt testified under oath that she is employed by the Respondent as a Human Resources Manager. One of her responsibilities, amongst others, is to handle selection, recruitment and appointment processes. She said Chapter B, clause 2.2 of Personnel Administration Measures stipulates that all employees will be appointed to act in higher positions in writing. She said the applicants were not appointed in writing to act in higher positions but were requested to assist in carrying out the duties as Campus Managers as well as Educators duties on level PL 3. The applicants were not entitled to an Acting Allowance because there were no vacant and funded positions available.
[16] Under cross-examination the respondent stated the Principal asked some PL 3 Educators to assist as Campus Managers. Mr Toni Ferita , who was the Campus Manager was transferred and seconded to corporate office. His position was not vacant. She said it was the Department of Higher Education and Training’s call to confirm acting appointments. There is no written confirmation from the Department of Education and Training allowing or recommending the applicants to act in higher positions.
ANALYSIS OF EVIDENCE AND ARGUMENT
[17] ELRC Resolution 8 of 2002 is an agreement on payment of acting allowances for an educator acting in a higher post where the permanent incumbent is absent, the purpose of this agreement is to determine a policy on acting allowance and compensation to be paid to an educator appointed to act in a higher post.
[18] “Educator” means educator as defined in the Employment of Educators Act, 1998 (EEA).
[19] Annexure “A” clause 3 of Resolution 8 of 2002 stipulates that: “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”.
[20] Annexure “A” clause 5 of the Resolution stipulates that “An acting allowance will be paid only to an educator who acts:
(1) in such a post where the permanent incumbent is absent due to the following:
(a) Maternity, (b) Sick leave, (c) Study Leave, (d) Suspension, (e) Secondment
(2) If the period of appointment is longer than twelve weeks; but limited to a maximum of twelve months”.
(b) Clause 2 (1) stipulates that “To the attached document (Annexure A) entitled, “Acting Allowances for an educator acting in a higher post where the permanent incumbent is absent”.
[21] The applicants failed to indicate who they replaced and whether they acted in positions where the incumbents were seconded or not. Only one incumbent’s name was mentioned. The applicant said they were all given acting letters but refused to sign the letters. In my view, the failure to acknowledge and sign the acting letters as requested by the respondent is an indication that the alleged offer of acting appointment was rejected by the applicants. The applicants conceded that they were not given formal letters by the Department of Higher Education and Training to act in higher positions. It is my finding that there was no proof before me that proved that the applicants were formally asked to act in higher positions. The letter that was presented in these proceedings was specific in its content that it was a letter requesting them to assist the respondent in performing tasks that were performed by campus managers and other educators in higher positions. The applicants’ voluntarily accepted the request to assist and performed the tasks. The very same letter stated that the issue of acting allowance was receiving attention and was not yet finalised by the Department of Higher Education and Training. It is my finding that the respondent did not fail to implement clause 5 (1) (e) and clause 6 of the ELRC Resolution 8 of 2002. The reason I say so is because they were not formally authorised and permitted to act in higher positions. There was nothing that said they will act from a certain date to certain date for a particular period and in turn they will be remunerated for acting in such positions.
[22] The applicants failed to prove, on a balance of probability, that they were formally asked and authorised to act in higher positions. The applicants also failed to prove that they accepted the alleged offer to act in higher positions. The applicants’ representative contradicted herself, she said they did not accept the request to assist but confirmed under cross-examination that they are presently assisting and are still performing the duties as requested in the letter. The applicant did not dispute the argument that it was only the Department of Higher Education and Training that has the authority to appoint PL4 and PL5 educators. They also did not dispute the argument that the Principal can only recommend the appointment of PL1 to PL3 educators. It is my finding that there is no formal agreement entered into between the parties confirming that the applicants are acting in higher positions.
[23] I accept the respondent’s argument that Chapter B, clause 2.2 of the Personnel Administration Measures (PAM) stipulates that all employees will be appointed to act in higher positions in writing. In this case the applicants were not appointed to act in higher positions. I am convinced by the respondent’s argument that the applicants are not entitled to an Acting Allowance because there are no vacant and funded positions available.
AWARD
[24] The applicants have failed to discharge the onus that the Respondent had failed to implement the provisions of Resolution 8 of 2002 and further determine that the applicants are not eligible for an acting allowance.
[25] The application is dismissed and the Applicants are not entitled to any relief.
ELRC PART-TIME PANELLIST: PAUL PHUNDU