Case Number: PSES366-19/20EC
Province: Eastern Cape
Applicant: NEHAWU OBO P M MTWALO
Respondent: 1st Respondent DEPARTMENT OF HIGHER EDUCATION EC, 2nd Respondent EAST CAPE MIDLANDS COLLEGE
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 5 October 2020
Arbitrator: EAST CAPE MIDLANDS COLLEGE
Arbitrator: ADV L.CHAROUX
Case Reference: PSES366-19/20EC
Date of Award: 5 October 2020
In the arbitration between
NEHAWU OBO P M MTWALO APPLICANT
DEPARTMENT OF HIGHER EDUCATION EC 1ST RESPONDENT
EAST CAPE MIDLANDS COLLEGE 2ND RESPONDENT
On behalf of the Applicant: Mr M Gobana of NEHAWU
On behalf of the 1st and 2nd Respondents: Mr L Mpati
INTRODUCTION AND REPRESENTATION
1. The arbitration was conducted via zoom on 18 and 31 August 2020. The Applicant was represented by Mr M Gobana of NEHAWU. The 1st and 2nd Respondents were represented by Mr L Mpati.
2. The Applicant referred an alleged unfair labour practice to the ELRC. The Applicant alleged that she is entitled to be paid for her previous work experience in terms of the ELRC Collective Agreements 5 & 4 of 2003 (“CA”) read together with Chapter B of the PAM. Thus, the dispute relate to Interpretation or application of Collective Agreement 4 and 5 of 2003.
3. The parties handed in a pre-arbitration minute.
4. Each party handed in a bundle of documents marked Annexures “A” and “B”.
5. The parties submitted written heads of argument that I received on 9 and 14 September 2020.
COMMON CAUSE FACTS
6. The Applicant is employed as a lecturer by the 1st Respondent at East Cape Midlands College (2nd Respondent) in a Level 1 position.
ISSUES IN DISPUTE
7. Did the Respondent commit an ULP against the Applicant?
8. Is the Applicant entitled to be paid for her previous work experience?
9. The Applicant testified that she was appointed by the 2nd Respondent on 6 January 2014.
10. From 2015 her employer is the 1st Respondent.
11. She said that since 2015 she followed various avenues in an attempt to be afforded recognition of previous work experience (“ROPE”). Her attempts were however without success and she therefore approached her union, NEHAWU, who referred a dispute to the ELRC.
12. The Applicant referred to her bundle of documents which sets out in detail her prior employment history that she alleges entitles her to be paid for appropriate prior experience.
THE RESPONDENTS’ EVIDENCE
13. Mr L Sdeba, the Assistant HR Director at the Second Respondent since 2015 testified that the Applicant’s documentation regarding her previous work experience was returned back to the Second Respondent by the Office of the Chief Director with instruction that the College Principal verify the legitimacy of the documents which the Applicant presented as proof of her prior appropriate experience. Sdeba said he received the following email from Ms Lungile Nkosi the Chief Personnel Officer of TVET HRM & A on 28 January 2019:
Kindly note that the submission for the correction and payment of salary for Ms PM Mtwalo has been returned from the Chief Director’s official with the following comment “She doesn’t see any confirming (sic) from the College Principal confirming that the attached certificate of service from the employee has been verified with the companies. This office cannot rely on the submission of individual lecturers therefore proof of verification of the legitimacy of the document must be attached.” (my emphasis)
Sdeba therefore wrote to the various previous employers of the Applicant providing a form to be completed to ensure compliance with the Chief Director’s instruction. The completed forms were however never sent to the Chief Director.
14. Mr C van Heerden, the Principal of the College since 2017, testified that he was of the view that the Applicant’s previous work experience did not comply with the requirements in terms of the PAM. He said it was his understanding that appropriate experience should primarily entail actual teaching as a key performance in a structured working environment or organization. None of the organisations that the Applicant worked for is accredited to teach. He said that in his view the Applicant’s previous experience did not qualify as appropriate experience as required in terms of B.8.4.3 of the PAM.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. The relevant part of the PAM reads as follows:
Salary of an educator who has actual teaching or appropriate experience outside public education (ELRC Collective Agreements 5 of 2003 and 4 of 2003)
Note: Actual teaching experience outside public education includes, inter alia, experience gained in an independent school, as a SGB or college council employee, AET educator or teaching experience abroad.
Note: Appropriate experience refers to working experience, which in the opinion of the employer developed the person directly or appositely in all respects regarding knowledge, skills and attitude, for holding an educator post.” (my emphasis)
16. The Applicant believes that she qualifies in terms of the second note in that her previous work experience is “appropriate” experience which developed and assisted her in her job as a teacher.
17. In terms of the PAM the employer (1st Respondent) has a discretion to recognize previous work experience. No evidence was presented that the employer’s discretion was delegated to the 2nd Respondent.
18. The instruction from the Chief Director’s office was that the 2nd Respondent should ensure that the certificates of service from the employee were verified with the companies in order for the Chief Director’s office to be in a position to make a decision. Nothing further was required from the 2nd Respondent. It is furthermore clear from the evidence presented that neither Sdeba nor van Heerden has ever dealt with an application for ROPE.
19. In the circumstances the employer, namely the 1st Respondent should be granted an opportunity to exercise their discretion and to make a decision whether the Applicant qualifies for ROPE prior to an arbitrator making a determination as to whether an unfair labour practice has been committed or not.
20. The 2nd Respondent is ordered to forward the verified documentation regarding the Applicant’s prior work experience to the 1st Respondent within 5 days of receiving this award.
21. The 1st Respondent is ordered to give a final outcome in writing regarding whether the Applicant is entitled to be paid for her previous work experience in terms of the CC read together with the PAM within 10 days of receiving the verified documentation from the 2nd Respondent.
SIGNED AND DATED ON 5 October 2020
ADVOCATE L CHAROUX