Case Number: PSES562-19/20EC
Province: Eastern Cape
Applicant: NAPTOSA obo Aaron Mhlontlo
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Chris Hani West District in Komani
Award Date: 25 May 2020
Arbitrator: Thobela Ncetezo
Case Number: PSES562-19/20EC
Commissioner: Thobela Ncetezo
Date of Award: 25 May 2020
In the ARBITRATION between
NAPTOSA obo Aaron Mhlontlo
Department of Education – Eastern Cape
Union/Applicant’s representative: Advocate Saayman (NAPTOSA)
Union/Applicant’s address: 774B Sada Township
Telephone: 041-364 0399
Respondent’s representative: Mr Lusapho Ndzongo – Labour Relations Officer
Respondent’s address: Private Bag x 0032
Telephone: 040 608 4540/4203
Telefax: 040 608 445-8431, 040 654 1861
Details of hearing and representation
1. This dispute was set down for arbitration on 10 December 2019, 29 January and 05 March 2020 at the Chris Hani West District in Komani. Advocate Saayman, an official of NAPTOSA represented the applicant. The respondent, Department of Education – Eastern Cape, was represented by Mr Lusapho Ndzongo who is employed as Labour Relations Officer.
2. The proceedings which were digitally recorded were conducted in English. The applicant testified under oath and introduced one witness. He submitted a bundle of documents relating to his claim and it was accepted by the respondent. The respondent introduced one witness who also testified under oath.
3. The applicant submitted a bundle of documents which comprised of his pay slips, appointment letter and grievance form. He also submitted closing arguments in writing for consideration, which I received on 16 March 2020.
Issue to be decided
4. I am required to decide whether the conduct of the respondent which deprived the applicant of pay progression amounts to an unfair labour practice as contemplated in Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (the Act).
Background to the dispute
5. The applicant is employed by the respondent as a Principal at Toisekraal Primary School. He referred a dispute of unfair labour practice which relates to benefits in terms of Section 186(2)(a), in that he did not receive pay progression based on the grounds that he has never performed any duties at the school since his appointment and could not therefore be assessed.
Survey of evidence
6. The applicant has been employed by the respondent as an educator for twenty three years. He applied for a school principal post that was advertised in bulletin Volume 4 of 2015 nr. 173 and was duly appointed as a Principal at Toisekraal Primary School in 2017. However when he was introduced to the school the community members protested and he has never been able to report on site and perform his duties. The then acting District Director, Mrs Masimini and current District Director, told him to wait at home until further notice. They promised him that his salary and his benefits would be paid but that did not come to fruition, instead he only received 0.5% IQMS for 2018.
7. He further testified that he could not perform any duties because it was not possible to do so as the community did not welcome him to the school. He admitted that his performance was not assessed. He however stated that the reason was because the community made it impossible for him to perform his duties. After being appointed to this position he did not receive any salary progression hence he is claiming in terms of IQMS an amount of R 25 776.25, which has been quantified as follows:
• 1/4/2017- 30/6/2017 : (R453 246 – R 448 755) x 3/12 (3 months) = R1 122.75
• 1/7/2017-31/3/2018: ( R 453 246- R 448 755) X 9/12 = R3 368.25
• 1/4/2018- 30/6/2018: (R 482 706 – 477 924) x 3/12 = R1 195.50
• 1/7/2018- 31/3/2019: ( R 489 012- R 477 924) x 9/12 = R8 316.00
• 1/4/ 2019- 30/6/2019: (R 520 476- 505 167) x 3/12 = R3 827. 25
• 1/7/2019- 29/2/202: (R 522 036 – R 506 682) x 7/12 = R8 956.50
8. The witness of the applicant, Mr Songezo Ngandi, testified that he is employed as Deputy Principal at St Theresa Primary School in Komani. He further testified that on 27 August 2019 he led a NAPTOSA delegation in a bilateral meeting, where the case of the applicant’s claim was presented. In that meeting the District Director promised that he will make sure that the applicant is paid and told them that he will take the necessary documents to the Human Resources Department so that the applicant could be paid outstanding IQMS, which was from 2017-2019. The pay progression that was paid to the applicant in 2019 was 0.5% instead of 1.5%, which is in terms of the respondent’s policy.
9. Under cross-examination the witness testified that to qualify for pay progression an educator must be assessed on his duty but the applicant could not be assessed because he was chased out of the school by members of the community. He stated that the respondent was therefore vicariously liable.
10. The witness of the respondent, Mr Mxolelanisi Gongqa, testified that he is employed as Circuit Manager and was managing the Lukhanji Circuit up to 29 February 2020, which includes Toisekaal where the applicant is employed as a Principal. When the applicant was appointed he accompanied him to the school to introduce him. While they were in a meeting the community members stormed in and said they did not want the applicant at that school. He had to return to the district office with the applicant who has since not reported for duty at that school as a result the latter has not performed any duties as he has not been at that school ever since.
11. On 5 December 2019 he went to the school pass an instruction to the School Governing Body from the Superintendent General that all displaced educators must return to their schools. The SGB was however not open to the SG’s instruction.
12. Under cross-examination the witness stated that he was not sure what the situation is with regards to pay progression when performance is impossible as the applicant’s case was the first of its kind in the Lukhanji Circuit.
13. He further testified that educators are paid a salary progression in terms of Integrated Quality Management System (IQMS).
Analysis of evidence
14. The evidence of the applicant that he is currently employed by the respondent as a Principal at Toisekraal was not disputed and nor was the fact that he was not able to assume and perform his duties at the said school because of the community members who did not want him there. The testimony of both parties was consistent with regards to this aspect. The respondent’s witness also testified that on 5 December 2019 the SGB was still resistant in allowing the applicant to assume his duties even though there was an instruction from the SG to allow displaced educators back to their schools.
15. It is therefore common cause that the applicant made his services available at the disposal of the respondent but because of circumstances that are beyond his control he is still not able perform his duties. This aspect is a barrier which therefore deprives him of an opportunity to be assessed in order to qualify for pay progression. That the applicant has been prevented from performing his duties has a negative impact on his salary progression in that he was viewed as not qualifying for IQMS. The respondent was aware that the applicant did not voluntarily stay away from work and neither was it because of poor performance but that he was prevented from performing his duties. It is therefore my considered view that the respondent acted unfairly in not taking into consideration the circumstances surrounding the case of the applicant. The impossibility by the applicant to perform his duties was neither wilful nor of his own making but caused by circumstances that could only be controlled and dealt with by the respondent, and the latter, at the expense of the applicant, failed to do so.
16. There was also no evidence from both sides that the applicant was not willing to avail himself for work or that he failed to perform his duties competently and efficiently. The applicant is now suffering the consequences in that he is not enjoying the benefits that he would have received if he was allowed to perform his duties and therefore evaluated. The respondent did not dispute the amounts (See paragraph 7 supra) that the applicant testified he would have received had it not been for the unfair conduct of the respondent.
17. Based on the above reasons I am of the view that the applicant is entitled to receive IQMS as the inability to perform his duties was not based on poor performance but by circumstances that are beyond his control and which are for the respondent to duly deal with. The implementation of IQMS would have resulted in salary progression for the applicant, which consequent to non-implementation of IQMS has remained stagnant save for the 0.5% that was implemented in September 2019. It was also not disputed that with the implementation of pay progression his notch should be R506 167.00. I accordingly make the following award.
18. I find that the conduct of the respondent is unfair and therefore amounts to an unfair labour practice as contemplated in Section 186(2)(a) of the Act.
19. The respondent, Department of Education – Eastern Cape, is ordered to pay to the applicant, Andile Mhlontlo, a total amount of R26 786.25, which has been calculated in terms of paragraph 7 of this arbitration award.
20. In consideration of the pay progression the respondent must place the applicant at a correct notch of R506 167.00.
21. The amount awarded to the applicant in terms of paragraph 18 of this arbitration award must be paid to the applicant by no later than 20 July 2020, failing which the above amount shall bear interest from the date of this award to the date of payment at the rate of interest applicable from time to time to judgement debts.
Arbitrator: Thobela Ncetezo