Case Number: PSES667-18/19KZN
Applicant: NAPTOSA obo Pelser J & 1 Other - “the Applicants”
Respondent: Department of Higher Education and Training
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: Virtual hearing (Zoom)
Award Date: 5 October 2020
Arbitrator: Nkosinathi Mkhize
IN THE ELRC ARBITRATION
NAPTOSA obo Pelser J & 1 Other - “the Applicants”
DEPARTMENT OF HIGHER EDUCATION AND TRAINING - “the Respondent”
Case Number: PSES667-18/19KZN
Last date of arbitration: 09 September 2020
Date of Award: 05 October 2020
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. The hearing of the arbitration was concluded on 16 September 2020 through virtual hearing (zoom) where parties and the arbitrator were seated at different places. The Applicants are Johannes Herman Pelser and Laurence Stefanus Andreus Fourie and both were represented by Mr. Kamil Singh, a NAPTOSA Official. The Respondent is the Department of Higher Education and Training, represented by Ms. Elizabeth Maluleka.
2. The 1st sitting was on the 06th of February 2020 at the offices of the respondent whilst the final sitting (zoom) was held on the 09th of September 2020 virtually through Zoom due to Covid 19 regulations and restrictions.
ISSUES TO BE DECIDED
3. I had to determine whether the respondent correctly interpreted and applied Resolution 5 of 2003 in the case of the two (2) applicants.
APPLICANT’S ARGUMENT AND EVIDENCE
1st Witness – Mr. Johannes Herman Pelser (“Mr. Pelser”)
4. Mr. Pelser testified that he was a Post Level 1 educator at Amajuba TVET College in the department of Safety in the Society.
5. That post was advertised and he applied, was interviewed and appointed effective from the 1st of June 2011.
6. He had 20 years of working experience in the South African Police Service (SAPS). He possesses a National Diploma qualification in Police Administration (see page 51 of the common bundle).
7. He teaches introduction to policing (level 2) and policing practice (level 4) subjects. They also perform physical drills and other exercise related to the courses he teaches.
8. He also teaches introduction to governance for levels 2 and 4 which comprises of receiving of complaints, taking the matter to court and seeing it through to its end. He also teaches his students how to investigate crime.
9. He was employment due to his previous experience which was relevant to the course he was teaching.
10. He had always been promised a review of his salary by the former campus manager (Mr. Louw). He was being told that his matter was being discussed with the central campus. The matter was not finalised until Mr. Louw retired in 2016.
11. There was another person who was in a same situation like his and that person’s experience was recognized as it could be seen on pages 11 and 12 of the bundle. He wanted to be treated in the same manner. What was more puzzling was that the other person (Mr. Maistry) had 14 years of experience whilst he had 20 years.
12. He was then advised by his trade union to apply to the respondent to have his salary reviewed. He received the relevant documents from his former employer and submitted same to Mr. Ntshangase for the respondent. He was later told that his matter was not processed since his documents were not stamped. He went back to his former employer and requested for same to be stamped and he resubmitted same to the respondent.
13. He was trained as a policeman in 1981 to 1982 at its college. In 1983/84 he was transferred to Hluhluwe where he did investigations and read and explained to his team members some documents, which could be construed as him training his team members on the ground, not at the college. Training on the ground was the same as what he was doing at the respondent’s college.
14. The Resolution provided for two (2) types of experiences to be recognizable; the actual educator’s experience and appropriate experience. The link between that and his case was his previous experience as per paragraph 4 of page 39 of the bundle – “I confirm contents of these documents and refer you to KPA 4.1 of the Job Description that alludes to the fact that I have been involved in on –going training of staff in my Department. Further to this, the letter from Lt. Col. Thevenau dated 2018-02-19, will also reflect that I have trained subordinates in various fields such as Crowd Management, on Standing Orders and also on official directives and relevant legislation in order to effectively police Protest Actions / Conflict Situations”.
2nd Witness – Laurence Stefanus Andreus Fourie (“Mr. Fourie”)
15. Mr. Fourier testified that was employed by the respondent as a lecturer, teaching safety in the society course effective from 06 April 2010. The subjects involved were, introduction to policing practice, principles of criminal justice, introduction to governance, introduction to law, law procedures and evidence and mathematics literacy.
16. He attended an interview in 2010 and was appointed based on his qualifications and experience. The post required someone with experience in law or policing as it was a vocational qualification teaching post. That was what was explained to him during the interviews.
17. He had never been an educator before but had been a policeman for 15 years and an attorney for 10 years.
18. The course he was teaching at the college (safety in the society) was preparing the students to join the SAPS, correctional services, private security companies or metropolitan police.
19. The qualification was a vocational one (NCV – National Certificate in Vocational studies). The course has two components, the theory and practical, e.g. attending crime scenes, identification of evidence, compiling of police docket, drilling techniques, fitness and training. They would then assess the students at the end of Level 4 whether they met physical training to join the police force.
20. His appropriate experience was his previous experience as a policeman and an attorney. The practical experience he gained as police was to identify, deal and secure evidence. The practical experience he gained as an attorney was in law procedure and evidence in that he conducted court procedures, search warrants executions, warrants of arrest, conducting of trials (criminal trials). As a former attorney he was able to guide the students on how to conduct trials.
21. Even in the police force, he had some educator responsibilities in that as a commissioned or non-commissioned officer, you have subordinates under you. The biggest component as an officer or a warrant officer was to guide and train subordinates under you. The full extent of his experience could be found on pages 25 to 27 of the bundle. His previous experience was found by the respondent to be relevant, hence he was appointed.
22. His understanding of the Collective Agreement 5 of 2003 was that it brought to being a dispensation where a person would be appointed at the minimum scale and then be given one notch for every year of experience. He knew of other colleagues who had benefitted through that dispensation.
23. The respondent’s finance committee in terms of pages 97 to 105 of the bundle recognized his previous experience as a policeman and omitted the attorney experience. He was before the arbitrator to pray that the 10 years of experience as an attorney be recognized.
24. His application to the respondent for such recognition could be found on pages 72 to 94 of the bundle which was later supplemented with pages 25 to 71.
25. There were 13 educators in their department, all of them former policemen or attorneys. None of them who applied for recognition were denied such recognition. Only him, the other joint applicant and Mr. Maistry were left out when they applied, however Maistry has since been recognised.
26. He teaches the introduction to law which was about different fields of law, criminal law to Level 3 students, law procedure and evidence to Level 4 students. He was able to teach those subjects because of his previous experience as an attorney.
27. As to his experience in law, he was an admitted attorney since 2000, then practiced for 10 years. His previous experience was relevant in that he was teaching the law procedure and evidence to the Level 4 students which was about pre-arrest, post arrest and trial stage.
28. He wanted the 10 years of experience he attained as an attorney to be recognized. During that period he was representing clients in court, applying law procedure and evidence. That experience then prepared him for teaching the students about the subject of law procedure and evidence.
29. The introduction to law deals with law of delict, mercantile law etc.
30. The Collective Agreement 05 of 2003 applied to him as he possessed appropriate work experience.
3rd Witness – Stuart Kenneth Roderick (“Mr. Roderick”)
31. Mr. Roderick testified that he was employed at Newcastle Training Centre, which was the engineering campus under the Amajuba College.
32. He started working for Amajuba College in 1999 as maths and science lecturer and was transferred to the Newcastle Training Centre in year 2000.
33. Iscor donated the training centre to the Department of Education and the former Iscor’s trainers moved over to the new employer. The training centre was run by the Department as a test run. They were being paid lesser than what they would be paid by the industry.
34. At some time, the training posts were advertised as PERSAL posts and it was found that under PERSAL, they were paid lesser than the industry. The CA 05 of 2003 was then introduced to bring them to the same level as the industry. It had been realized that they could not attract the technical guys (trainers) from the industry since they were paying lesser than the industry.
35. Applying an example of a 10 year experienced boilermaker who was being appointed as a lecturer; he would be appointed at a minimum level and be paid a notch for each and every year of the 10 years’ experience.
36. The interpretation of types of experience on page 5 of the bundle was that; the actual educator experience meant the experience as an educator either in public or private sector, whilst the appropriate experience meant that for the guys who were not educators but working in the field they would be teaching, their previous experience could be recognized e.g. artisan fitter who was appointed to teach fitting learners.
37. The college relied on the industry for expertise, hence the birth of CA 05 of 2003, particularly clause (i)(b) of page 5.
38. Full recognition meant that all the years of experience would be recognised.
RESPONDENT’S ARGUMENTS AND EVIDENCE
Witness – Muzi Ntshangase (“Mr Ntshangase”)
39. Mr. Ntshangase testified that he was employed by the respondent as a campus manager.
40. For the period 27/08/2018 to 30/09/2018, he was a deputy principal corporate services, responsible for ER functions, HR, employee wellness, implementation, review and drafting of policies.
41. The applicants were lecturers at Majuba TVET College – Newtch campus. He knew that the applicants previously worked for SAPS in different departments. Fourie also worked as a labour consultant.
42. As to their previous experience at SAPS, they accepted what was written on their CVs. When he received their files, he asked them to get some documents from SAPS which showed what they were doing there. The document showed that they were doing police work in different ranks.
43. The CA 05 of 2003 had its purpose as to deal with the recognition of educators who were appointed in the public service but who have previous experience. The actual educator experience could either have been inside or outside public service. The appropriate experience was what the applicant had been doing before joining the public service that developed the applicant to appropriately execute his duties.
44. As to the relevance of the applicants’ experience, he relied on the source documents from the SAPS in relation to the subjects they were teaching, the safety in the society program. He did not receive the documents with specific duties he requested to show what they were doing at SAPS. The document he received at one point could not show that their experience was appropriate. The respondent therefore implemented the collective agreement correctly.
45. For post level 1, experience was not necessary, hence the applicants qualified for appointment. Their qualifications should have been in line with the law as they would be dealing with that subject.
46. In his personal knowledge and during his tenure, he did not know of anybody whose police experience was recognized. He however was told that at national level, there was someone whose experience was recognized, he however did not have actual facts regarding that matter.
47. The recognition of experience related to both the educator experience and trade. Both applicants had no previous educator experience.
48. In order to claim recognition for trade or field, an applicant needed to submit a document from his previous employer to show that appropriate experience. At the time he was in the college, the documents that were given to him were not sufficient; they did not show that their individual previous experiences were appropriate.
49. He was given generic document as to the police duties from SAPS, not showing the actual duties that were performed by the applicants. He was looking for the duties that were performed by the individual applicant that could enable him to determine whether those duties enabled the applicants to perform. From the document that was given to him, he could not establish whether the individual applicant performed those duties.
50. In the applicants’ CVs their ranks were mentioned but that not their duties hence he could not weigh the experience element.
51. The duties in the documents found on pages 14 -15, 25 -27 and 106 to 113 of the bundle were not appropriate for the recognition of experience they were looking for.
52. The applicants were appointed on the bases of their qualification and not experience.
53. The CA 05 of 2003 gets considered after a person has been appointed.
54. He conceded that he sent an email to one Maluleka stating that the applicants qualified for recognition. The bases for his conclusion then was that they qualified for reasons that somebody had previously got his experienced recognized and not because he accepted that the experience that could be extracted from the SAPS documents was such that it conclusively proven that their experience should be recognized. The case of that employee has since been reviewed internally and they found that he should not have been recognized; hence they would start deducting and reversing that decision.
ANALYSIS OF ARGUMENTS AND EVIDENCE
55. Both parties conceded that the dispute was about the interpretation and application of clause 4.2 (c) (i) (b) of the Collective Agreement (see page 5 of the bundle). That clause concerns itself with the recognition of appropriate experience. It reads thus: “Appropriate experience – This pertains to working experience which in the opinion of the employer, developed the candidate directly and appositely, in all respects regarding knowledge, skills and attitude, for holding an educator post”.
56. Both parties agreed that the correct interpretation of clause 4.2 (c) (i) (b) of the Collective Agreement was that an appointed educator who has previous appropriate experience would have that experience recognized at one notch for each and every year.
57. The clause has a definitive directive (rider) which provides that the appropriateness of the experience must be seen in the context of the opinion of the employer. This meant that the employer must have been given an opportunity to evaluate the experience as submitted by the applicant and determine whether it was appropriate.
58. The court in Coopers & Lybrand and Others v Bryant (459/93)  ZASCA 64 (30 May 1995) provided that: “according to the ‘golden rule’ of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some repugnancy or inconsistency with the rest of the instrument”.
59. The principles applicable to the interpretation of collective agreements are trite as restated in Western Cape Department of Health v Van Wyk and Others (2014) 35 ILJ 3078 (LAC) at para 22. The legal position is that;
a) When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement;
b) The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.
c) A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement.
d) The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made,
e) The “parole evidence” rule when interpreting collective agreements is generally not permissible when the words of the memorandum are clear.
f) Collective agreements are generally concluded following upon protracted negotiations, and it is expected of the parties to those agreements to remain bound by their provisions. It therefore follows that such agreements cannot be amended unilaterally.
60. In the case of Minister of Safety v Safety and Security Sectoral Bargaining Council, J.C Robertson, A.J Arends & H.G Booysen and also confirmed in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism & Others 2004 (4) SA 490 (CC) it was held that the courts and arbitrators should be careful not to interfere with administrative actions that were fair.
61. The Labour Court in Aries v CCMA & Others (2006) 27 ILJ 2324 (LC) held that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which has been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. It further held that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
62. For proper analysis and differentiation in terms of the two applicants as they are in essence different in approach and context, I would deal with each of them individually.
The case of Mr. Pelser
63. Mr. Pelser testified that he submitted his application for the recognition of previous experience to the respondent as per pages 9; 41 to 42 of the bundle.
64. He wanted the respondent to recognize the 20 years of experience he gained whilst he worked as a policeman.
65. Mr. Ntshangase testified that the opinion of the employer was that the documents that were submitted by the applicant were not sufficient to prove that his previous experience was such that it had to be recognized for the purposes of CA 05 of 2003. That opinion was important as it was consistent with what the employer was required to do in terms of the collective agreement. Whether the employer correctly assessed that experience was another matter altogether.
66. The applicants further submitted that there was an email that was submitted by Mr. Ntshangase where he stated that the applicants had to have their experience recognized since Mr. Maistry’s experience was recognized, and that such created precedence. He further testified that the case of Mr. Maistry was wrongly decided; hence they were challenging that decision. Even if precedence was one of the elements that could be considered or applied in determining whether recognition of experience should be approved, in this matter that could not be as such “precedence” was no longer a case. I must however state that precedence was not one of the areas recognized or provided for by the CA 05 of 2013.
67. I have noted that Mr Pelser submitted on page 14 a letter from his previous employer where the previous employer was submitting a synopsis of what the roles and responsibilities of the member was during his tenure at the SAPS. It was therefore clear to me that the submission was not a generic presentation of what different ranks would do in the SAPS but it was specifically referring to the applicant’s tenure with the SAPS. The testimony of Mr. Ntshangase in that regard was therefore less probable than that of the applicant. It was my finding that the applicant submitted a supporting document that referred to his tenure and experience in the SAPS. Mr. Ntshangase testified that the respondent expected the applicants to submit documents from their previous employers that show that their experience was relevant and had to be recognized and that testimony was consistent with the documents that were submitted by Mr. Pelser. It was therefore mind boggling to hear a testimony from Mr. Ntshangase which seeked to show that the Mr. Pelser had only (up to the date of the arbitration) submitted generic information documents.
68. It would appear that the document had details as to the activities that Mr. Pelser performed (as a member) whilst in service.
69. Mr. Pelser was in somewhat the same position (former SAPS members) with Mr. Fourie when they joined the respondent. Mr. Fourie testified that his 14 years of SAPS experience was recognized. There was no explanation given during the arbitration as to why Mr. Pelser was being treated differently. It would appear from the documents submitted on behalf of Mr. Pelser (pages 13 – 69 of the bundle) that Mr. Pelser met the submission procedure in that the documents submitted were about him and his previous experience. It may be that Mr. Ntshangase was referring to other documents when he testified that the documents he received were generic (In this matter, there was an interim ‘settlement agreement’ that was reached by the parties to the effect that the applicants would go back to their previous employers and request detailed documents as to their previous experience. It would appear that the applicants did just that with reference to their SAPS experience, however the respondent did not do anything after that – hence this arbitration) as subsequent to the interim settlement agreement, the documents submitted in the bundle were stamped and referred to individual members and their experiences.
70. It would appear that Mr. Pelser’s previous experience had to be recognized as it was relevant to the course he was teaching at the college – safety in the society, with specific subjects being the Introduction to policing practices (Level 2) and theory of Policing practicing (Level 3), amongst others. – see page 42 of the bundle.
71. The certificate of service for Mr. Pelser show that he joined SAPS on the 30 November 1981 and retired on the 18th of October 2001. See also page 45 of the bundle. It would appear that Mr. Pelser was on training as a student policeman from 30 November 1981 up until 03 December 1982 and started as a police constable on the 12th of January 1983. In my view, that period in training should not be recognized for the purposes of appropriate experience. The period that should be recognized was that of 12/01/1983 up to 18/10/2001. In that period, recognizable experience, that developed the applicant directly and appositely, in all aspects regarding knowledge, skill and attitude, for holding an educator’s post must be determined by the employer.
72. It was therefore my finding that the respondent failed to correctly interpret and apply CA 05 of 2003 in the case of Mr. Pelser.
The case of Mr. Fourie
73. Mr. Fourie testified that he wanted the respondent to recognize the 10 years of experience he gained as an attorney.
74. Mr. Fourie testified that he submitted his application as per page 70. What was important to note from that application was the fact that in his case, 13 years of experience was recognized for his police experience, hence he now wanted the attorney experience of 10 years to be recognized this time.
75. Mr. Ntshangase testified that the respondent expected the applicants to submit documents from their previous employers that show that their experience was relevant and had to be recognized. Mr. Fourie submitted documents from his previous employer – SAPS and none from the law firms or labour consulting employer. He testified that his SAPS experience was recognized and he only wanted his experience as an attorney to be recognised.
76. I found it reasonable, fair and appropriate and believe that it was also the intention of the drafters of the collective agreement that there had to be some credible supporting documents to show that the candidate has appropriate experience that had to be recognized. In that regard, in the absence of those documents, it would be difficult to determine that experience.
77. It was therefore my finding that since Mr. Fourie has not submitted any credible supporting documents for the experience he wanted the respondent to recognize, that the respondent correctly interpreted and applied CA 05 of 2003 in the case of Mr. Fourie.
78. The respondent failed to correctly interpret and apply CA 05 of 2003 in the case of Mr. Pelser.
79. The respondent is directly to determine the service for Mr. Pelser for the period 12/01/1983 up to 18/10/2001 as recognizable experience. This determination must be made and be reflected in Mr Pelser’s salary by no later than 31 January 2021.
80. The respondent correctly interpreted and applied CA 05 of 2003 in the case of Mr. Fourie.
81. The case of Mr. Fourie is dismissed.