Case Number: ELRC938-19/20EC
Province: Eastern Cape
Applicant: SAOU obo VAN DER MERWE ANNA-MARIES
Respondent: DEPARTMENT OF EDUCATION, EASTERN CAPE
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 12 October 2020
Arbitrator: MBULELO SAFA
Case Number: ELRC938-19/20EC
Commissioner: MBULELO SAFA
Date of Award 12 October 2020
In the ARBITRATION between: -
SAOU obo VAN DER MERWE ANNA-MARIES
DEPARTMENT OF EDUCATION, EASTERN CAPE
Applicant’s representative: Ms VENITA VAN WYK
Applicant’s Address: NAPTOSA
Respondent’s Representative Mr M. Kwepile
Respondent’s Address Department of Education, Zwelitsha, King Williams Town
Telefax 0406-84458, 0406541861
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter set down for arbitration on the 8th September 2020 on the Zoom platform. The parties were further convened on the 5th October 2020 to provide additional information pertaining to the monthly income of the Applicant.
2. The Applicant was represented by Ms Venita Van Wyk from the union, NAPTOSA. The Respondent was represented by Mr Mandla Kwepile who is their Labour Relations Official.
3. The proceedings were recorded on the Zoom platform.
ISSUES TO BE DECIDED
4. Whether or not the decision of the Respondent to reduce the salary of the Applicant in October 2019 amounted to unfair labour practice, and to make an appropriate award.
BACKGROUND TO THE ISSUE
5. The Applicant was the principal of Fish River Methodist School and the grading of the school was P2 and the salary she was earning was at the level of the Post Level 2 post.
6. She applied for an equivalent post at another school, Sam Xhallie School, and was appointed.
7. In October 2019 her salary was reduced. She was not satisfied with the responses she received from the officials of the Respondent and then referred an unfair labour practice dispute. The dispute was not resolved at conciliation and it was referred to arbitration.
8. The relief she is seeking is that her salary must be changed to what it was before the reduction in 2019.
9. The parties were ordered to submit the closing arguments on the 14th September 2020. However, the Respondent representative did not immediately become aware about this date as he got disconnected before it was announced. He then asked for the extension of time to the 16th September 2020. Though the extension was granted the Respondent did not submit the closing the argument.
SURVEY OF EVIDENCE AND ARGUMENT
10. The Applicant submitted one bundle of documents and led oral evidence through one witness. The Respondent relied on the bundle of the Applicant and also led evidence through one witness.
APPLICANT’S EVIDENCE AND ARGUMENT
11. The Applicant testified that she applied for the post of Sam Xhallie School which was advertised as P2 on Volume 5 Bulletin of 2018. Though the post at Sam Xhallie School was at the same level as the post she was occupying at Fish River Methodist School she regarded it as a beneficial to her because there were more learners at Sam Xhallie School.
12. After succeeding in the interviews she was offered the post by the Respondent, accepted the offer and ultimately appointed. After being appointed she was paid at the same salary level (P2 level) as at the previous school.
13. In October 2019 her salary was reduced to the salary level of a principal of a P1 school.
14. She could not recall if during the interviews and subsequent to her appointment there was ever a mention that the post she was applying for was a P1 post.
15. She could not recall whether in the offer letter it was written that the post was a P1 or P2 post. When shown the offer letter and told that it stated that the post was a P1 post she admitted that indeed it was a P1 post.
16. When she enquired she was informed by the official of the Respondent that her salary was reduced because her school did not have children.
17. She testified that when she was paid at the P2 level whilst at Sam Xhallie School she was not aware that she was paid using the component of the previous school, Fish River Meth School.
18. There was no communication from the Respondent before her (Applicant’s) salary was reduced.
RESPONDENT’S EVIDENCE AND ARGUMENT
19. The witness of the Respondent, Nomhle Flepu, testified that she was employed by the Respondent as the Deputy Director for Human Resource Administration. She knew the Applicant.
20. She testified that the post of the principal at Sam Xhallie School was advertised in the bulletin in error as a Post Level 2 post instead of Post level 1. The error was occurred two times during printing. When asked why they did not even issue a correction to the bulletin including making an addendum she responded that the error was minor and did not warrant an addendum.
21. The Respondent rectified the error when they issued the offer letter to the Applicant in which they wrote that the post was a Post Level 1 post.
22. She referred to page four of the Applicant’s bundle saying that was the offer letter that was given to the Applicant. The letter indicates that the offered post was at post level one(P1). The offer letter was read to the Applicant and she signed to acknowledge receipt thereof.
23. When the Applicant was appointed at Sam Xhallie School the Respondent struggled to create a component for the school since it was a new school. The Applicant then continued to be paid using the component of the previous school. After the issue of the component was sorted the salary of the Applicant was reduced. The pay point of the Applicant was also changed to the new school in the middle of October 2019.
24. The Respondent communicated with the Applicant through the offer letter. She was not sure if it was communicated to the Applicant during the interviews that the post at Sam Xhallie School was at post level 1 and not at level 2 as advertised.
25. There was no communication with the Applicant before her salary was reduced in October 2019.
ANALYSIS OF EVIDENCE AND ARGUMENT
26. This matter was referred in terms of section 186(2) of LRA as unfair labour practice of demotion in view of the fact that the salary of the Applicant was reduced in October 2019.
27. It was common cause that the post of Sam Xhallie School was advertised at P2 level and the Applicant, who was already in the same level at Fish River Meth School applied for this post because, so she testified, the school had the potential to grow and thus result in the growth in her salary.
28. The Respondent testified that they made an error in advertising the post of Sam Xhallie School at P2 since the school was a new school at P1 level. The Respondent admitted that they advertised the post two times and the second advert was meant to correct the level of the post which was P2 instead of P1. However, the second advert had the same error.
29. The Respondent had all the time and resources at their disposal to correct the level of the post during the advertisement, but they chose not to. The reason stated by the witness of the Respondent was that they felt the error was minor. I do not accept the reasoning of the Respondent that an error which gave the upper level of the post and upper salary level than the post was, was a minor error.
30. The purpose of the advert for any post is to alert potential applicants to check if they meet the requirements of the post, if the salary level and location of the post meet their needs. So the Applicant applied for the post knowing that it was a P2 level post, she was shortlisted for the post and invited to the interviews. During the interviews there was no mention at all that the post was a P1 level post.
31. I believe that had the Applicant been aware that the post she was applying to was a P1 level post she would have exercised her options properly and made an informed decision whether to apply for the lower level post or not. So the advert in essence misled the Applicant.
32. After being appointed at the post at Sam Xhallie School the Applicant continued to receive the same salary she was receiving at the previous school. I do not blame the Applicant for assuming that she was getting the same salary because the new post was at the same level as the previous post.
33. That there were problems with creating the new pay point of Sam Xhallie School is something that, according to the evidence led, was never communicated with the Applicant. Once more the Respondent had sufficient resources at their disposal to communicate this information with the Applicant, but they chose not to. This goes against spirit of the Batho Pele principles.
34. The fact that the Applicant continued to get the salary at P2 from January to September 2019 created an expectation on her that this was the correct salary, more especially that whatever problems that the Respondent were experiencing were not communicated to her.
35. The Public Service Act have section 38(2)(b)(i) which provides that the State as the employer can deduct incorrectly paid remuneration. That provision of the Public Service Act does not prescribe the need for consultation or consent of the employee before the incorrectly paid amount can be deducted. This section have since been declared unconstitutional as per the Constitutional Court in Public Service Association obo Ubogu v Head, Department of Health, Gauteng and Others 2018 (2) SA 365 (CC) and thus cannot be applicable as it is.
36. The LAC in Minister of Justice and Correctional Services and Others v Tshifhango and Another (JA63/2017)  ZALAC 32;  7 BLLR 627 (LAC); (2019) 40 ILJ 1773 (LAC) (13 March 2019) held thus:
 The decision in PSA obo Ubogu is instructive that an employee is entitled to a hearing before a decision is taken in respect of the manner in which an employee would have to reimburse the employer for the overpayments made consequent upon an incorrect salary grading. In Western Cape Education Department v General Public Service Sectoral Bargaining Council and Others, this Court remarked that it is implicit in the purpose of the s38 of the Act read as a whole that the exercise of a power conferred upon the executing authority by the section had to be exercised reasonably.
 There can be no rational basis, in respect of the planned reimbursement of the alleged overpayment, for the appellants not to afford the respondents an opportunity to make representation and/or participate in the decision that may adversely affect them. More importantly, this would provide to the respondents a platform to influence the outcome of the decision and prevent the unfettered self-help.
37. The explanation of the Respondent that the Sam Xhallie School was graded at P1 was not disputed but the Applicant impugned the fact that they were not allowed an opportunity to make representation.
38. Taking authority from the court decisions in PSA v Ubogu and Minister of Justice NO v Tshifhango NO a finding is hereby made that the Respondent ought to have given the Applicant an opportunity to make representations before effecting the change or correction in her salary.
39. The Applicant herself is not completely blameless as she got to know that the post at Sam Xhallie School was at a lower level through the offer letter. She thus accepted the offer knowing very well that it was at P1 level and that her salary was ultimately going to be reduced to the P1 level.
40. All that was left was for the Respondent to follow the procedure prescribed by section 34 of the BCEA read together with the guidance provided by the LAC in Department of Justice and Correctional Service above.
41. It would be exceeding my powers to reverse the decision of the Respondent to reduce the salary of the Applicant in October 2019 since it was in line with the staff establishment of Sam Xhallie School as declared by the Member of Executive(MEC) responsible for Education. The validity of the decision or declaration of the MEC has not been challenged in these proceedings.
42. There was thus a reason for the reduction of the salary but the Respondent failed on the side of procedure.
43. Section 193 of the LRA envisages that the arbitrator may order the employer to pay compensation to the employee where the employer did not follow fair procedure.
In the circumstances I make the following award;
44. The action of the Respondent to reduce the salary of the Applicant was substantively fair and procedurally unfair.
45. The Respondent is ordered to pay the Applicant compensation equivalent to four (04) months’ salary to the Applicant. The total amount is determined by multiplying the monthly salary by four (04); R35 320.35 x 4 = R141 281,40. This amount must be paid to the Applicant within thirty (30) days from the date of receipt of this award.
Mbulelo Safa: ELRC Panelist