Case Number: PSES546-18/19
Province: Western Cape
Applicant: NAPTOSA obo LA JOHNSON
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 7 September 2020
Arbitrator: Jacobus Simon Du Plessis
Case Number: PSES546-18/19
Commissioner: Jacobus Simon Du Plessis
Date of Award: 7 September 2020
In the ARBITRATION between
NAPTOSA obo LA JOHNSON
WESTERN CAPE EDUCATION DEPARTMENT
Employee’s representative: Mr Ockie Van Niekerk
Applicant’s address: P.O.Box 254
Telephone: 044 874 2333/072 843 1443
Telefax: 044 873 5872
E-mail: Scss4@naptosa.org.za; email@example.com
Employer’s representative: Mr Clayton Vorster
Respondent’s address: Western Cape Education Department
Private Bag X9114
Telephone: 021 467 2839
Telefax: 021 425 8612
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was conducted over three days; 21 February 2019; 14 March 2019 and 21 August 2020 respectively. The last session was a zoom hearing.
2. The “Applicant”, Ms LA Johnson was represented by Mr Ockie Van Niekerk; the trade union official for National Professional Teachers Organisation of South Africa (“NAPTOSA”), and the “Respondent” was represented by Mr Clayton Vorster; the Employee Relations Officer for the Respondent.
3. The Applicant presented oral evidence under oath and called one witness. The parties have submitted bundles of documents. The parties also agreed to submit closing argument in writing on 28 August 2020.
4. The arbitration hearing was postponed on 14 March 2019 on agreement by the parties to explore possible alternatives as a means of settlement regarding the special qualifications recognized by the South African Qualifications Authority (SAQA).
5. The parties’ attempts were unsuccessful and the matter was brought back to the Education Labour Relations Council (“ELRC”) for completion of the arbitration which was scheduled to commence on 21 August 2020.
6. The hearing was conducted in English and the proceedings were fully explained to the parties. Hand written notes were kept and the proceedings were digitally recorded.
ISSUE TO BE DECIDED
7. I must decide whether the Respondent has committed an Unfair Labour Practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (LRA). I must also decide on the appropriate relief.
8. I am required to determine whether the Respondent has acted lawfully by expecting the Applicant to repay the amount erroneously overpaid to the Applicant.
9. I must also determine whether the Respondent has committed an unfair labour practice by reducing the salary of the Applicant after the Respondent has erred by overpaying the Applicant.
10. I am also required to make an order to prohibit the Respondent to recover the amount erroneously overpaid to the Applicant.
BACKGROUND TO THE DISPUTE
11. The Applicant is a qualified dance teacher. She was appointed in 2014 and remunerated at REQ V12 salary. The Applicant was informed by the dance curriculum advisor; Ms Shawn, that her salary was incorrect (underpaid) and that she would have her salary corrected by setting a process in motion with the Respondent by submitting relevant documents and exchanging emails in that regard. The Applicant’s salary was eventually increased to REQ V14.
THE APPLICANT’S CASE
12. The Applicant, Ms Linda Anne Johnson (“Johnson”) testified under oath that she was employed at Erica Primary School since 2014 as a ballet teacher and in 2015 she commenced employment at York High School as Modern Jazz teacher which was a full time post.
13. When she started as a dance teacher, her salary was approximately R10 000. 00 per month (REQV12). Ms Nicola Shawn, the Dance Studies Subject Advisor had a discussion with her as she was worried about the low salary scale. This happens when she was still employed at Erica Primary. Shawn recommended that she be appointed at a high school and she was subsequently appointed at York High School where she started to present Modern Jazz which is a recognized subject in the curriculum.
14. According to Nicola Shawn, there were other teachers that were employed on the same level as the Applicant and are paid at REQV14; R20 678. 75 per month, and she would ensure that the Applicant also earns the same salary. Shawn engaged the Respondent in 2015 and January 2016 her salary was increased to R20 678. 75 per month (R248 145. 00) per annum. The Applicant reapplied for the same position in 2017 and was appointed on the same terms and conditions. However; for some reason the Applicant together with a number of other colleagues were short paid in the beginning of 2017 and 2018 and on enquiry they were told that it was because of some tax deduction.
15. She received a letter (page 53 in the Applicant’s bundle of documents) from the Respondent dated 16 March 2018 informing her that “due to an administrative oversight, the WCED (Respondent) erroneously appoint her for the contract periods 1 January 2016 to date against the incorrect notch code 085 which resulted in her being overpaid for the period in question and that with effect from 1 March 2018 the Respondent was going to adjust her salary to the correct notch of R112 854. 00 per annum; the notch code 005”.
16. The Applicant takes us through her qualifications from pages 39 to 43 as follows:
• Page 39; the Senior Certificate Art Ballet obtained from the Transvaal Education Department;
• Page 40; Advanced Executant Certificate obtained from the Royal Academy of Dancing;
• Page 41; Certificate of Admission as a dance teacher obtained from the Association of International Dance Teachers;
• Page 42; Certificate for Modern Advanced Associate 3 Examination obtained from the Association of International Dance Teachers;
• Page 43; Diploma for Modern Teaching obtained from the Association of International Dance Teachers.
17. The Applicant testified that there are a number of dance/jazz art teachers that does not have the qualifications but they are paid the salary of REQV14 and therefore she claims inconsistent application of the Respondent’s rules. The Applicant stated that she does not have the money to pay back. However; she maintains that the qualifications was approved by SAQUA and there was therefore no reason for her to make any further enquiries from them. The Applicant is unhappy with the fact that she now has to suffer the consequences of the mistakes which was made by the administration.
18. During cross examination a letter dated 3 October 2014 (page 20 in Respondent’s bundle of documents) was presented to the Applicant. The letter deals with ‘Evaluation of Qualifications’ wherein it states that “only the senior certificate; advanced executant certificate from the Royal Academy of Dancing were professionally approved qualifications for level REQV12 salary. It specifically states that all qualifications obtained from the Royal Academy of Dancing, the Imperial Society of Dancing, the University of Cape Town, the South African Dance Teachers Association and the Cecchetti Society of Southern Africa is recognized qualifications. The final evaluation was that the qualifications presented was for REQV12, professionally unqualified and only for the teaching of Dance Studies”. It was put to her that the letter which she received stated that she was not qualified for REQV14 salary structure.
19. The Applicant was refer to the ‘terms and conditions of employment of educators’ that states in section 13 (1) of the Employment of Educators Act 76 of 1998; this section deals with ‘wrongly granted remuneration’ and states as follows: “if an incorrect salary on appointment , transfer or promotion or an incorrect advancement of salary was awarded or granted to an educator, or if the correct salary was awarded or granted but at a time when or in circumstances under which it should not have been awarded or granted to him or her, the employer shall correct the educator’s salary with effect from the date on which the incorrect salary or salary advancement commenced, notwithstanding the fact that the educator concerned was unaware that an error had been made in the case where the correction amounts to a reduction of his or her salary”.
20. The Applicant was also asked during cross examination whether she accept that she was not qualified to be paid at REQV14. She responded that she accepts, but that it was not her mistake but the Respondent’s.
21. Mr Francois Moll (“Moll”) testified that he is the principle of York High School since 2012. Moll confirmed that the Applicant was appointed as the Dance teacher. He also confirmed that the Applicant was paid at level REQV12 salary and added that this was an adhoc post. Moll testified that dance classes were a benefit to the school curriculum. Had that not been the case they would have removed it as a subject from the curriculum.
22. He said that he was also aware that the Applicant’s salary was increased up to level REQV14. He believes that she was granted an increase based on her qualifications and experience.
THE RESPONDENT’S EVIDENCE
23. Mr Clayton Vorster (“Vorster”) on behalf of the Respondent submits that the Applicant was erroneously appointed on level REQV14 salary. The Applicant was aware of it as soon as the Respondent informed her about the error.
24. The Applicant has on a number of occasions conceded to the fact that she was over paid. Her qualifications were evaluated according to the SAQA standards. The Respondent relies on section 13 of the Employment of Educators Act 76 of 1998 which allows for corrections of administrative errors and the mistakes were accordingly corrected.
25. The Applicant was remunerated on REQV 14 for the duration 1 January 2016 until February 2018 and was adjusted to REQV10/12 from 15 March 2018. The Applicant did not qualify for REQV14 based on the qualifications she possesses.
26. The Respondent maintains its position that the Applicant was professionally unqualified and should remain on REQV12. This was confirmed by the Department of Higher Education after evaluation of her qualifications against the SAQA principles. It is confirmed by the Department of Higher Education that the Royal Academy qualification is the only qualification recognized on REQV12 but not the additional qualifications.
ANALYSIS OF EVIDENCE AND ARGUMENT
27. The Applicant’s claim is in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended; it reads as follows: ‘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”.
28. The first issue to decide is whether the ELRC has jurisdiction to arbitrate the dispute. This is per se, a dispute about an alleged unfair labour practice and it is set to determine whether the Applicant was entitled to the remuneration of REQV14 as a benefit. The dispute in my view does fall within the ambit of the Bargaining Council especially since I am required to determine whether the Respondent has committed an unfair labour practice.
29. The burden of proof rest with the Applicant. It is common cause that the Applicant was initially appointed in REQV12 salary position in 2016 and yearly renewals of her fixed term contract of employment happened. However; on recommendation by Ms Nicola Shawn; the subject advisor, to the Directorate Recruitment and Selection, for evaluation of her qualifications and experience, her salary was increased to that of level REQV14 for the duration 2016 to 15 March 2018.
30. Shawn was not called to testify. I am particularly concerned with Shawn’s conversation and engagement with the Department and its outcomes. However; there is no evidence given by Shawn.
31. The evidence shows that the Applicant, after having engaged her subject advisor, was appointed at York High School upon which her salary was increased to that of REQV14 from REQV12. However; the Applicant, in her own evidence conceded on a number of occasions that this was not her mistake. Having conceded as such, I draw an inference that the Applicant also conceded that she was not entitled to salary raise if she was not qualified according to the qualifications authority.
32. Further evidence is the letter dated 3 October 2014; page 20 in the Respondent’s bundle, wherein it states that upon evaluation of the qualifications, it was concluded that the Applicant was professionally unqualified for REQV12 based on her qualifications. This means that the evaluation conducted was specifically on qualifications and not necessarily her experience. I guess as years grow the one catch up with the other. First your qualifications and with it grow experience as you practice your qualifications throughout the years. This notion was confirmed by the Department of Higher Education where it was reemphasized that only certain qualifications were recognized. That means that the Applicant was placed at REQV12 instead of REQV14.
33. I am also required to interpret section 13 of Employment of Educator’s Act 76 of 1998 that states that “if an incorrect salary on appointment was awarded…” in my view it clearly indicates that the ‘mistake’ must have happened on the appointment of the candidate. However; it can also be interpret as to mean that the employer has the right to correct the ‘mistake’ upon becoming aware thereof. I say this because ‘mistakes’ are meant to be realized after the fact. This is the nature of ‘mistakes’ but the EEA makes provision for when such mistakes are being detected. There is no particular prescribed period within which such mistakes can be corrected and therefore in my view the Respondent do have the right to correct their mistake.
34. There is no evidence before me to suggest that the Applicant actually denies that the incorrect salary was paid to her irrespective of the time in which the mistake was detected. Having said that I find that on evaluation of the Applicant’s qualifications, the recognized qualifications confirmed her to be at the salary scale of REQV12. It then follows that the Respondent does have the right to recover the amount of money overpaid.
35. The Respondent, Western Cape Education Department (WCED) is not guilty of having committed an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
36. The Applicant’s application for relief is dismissed.
37. There is no order as to costs.
Commissioner: Jacobus Simon Du Plessis