Case Number: PSES667-19/20LP
Applicant: Lamola Hunadi Jemima
Respondent: Department of Education Limpopo
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 20 October 2020
Arbitrator: MN Masetla
Commissioner: MN Masetla
Case number: PSES667-19/20LP
Date of the award: 20/10/20
In the Arbitration between
Lamola Hunadi Jemima Employee
Department Of Education – Limpop Employer
THE DETAILS OF THE HEARING AND REPRESENTATION
1. This is an award in the arbitration between Lamola Hunadi Jermima, the employee and the Department of Education - Limpopo, the employer.
2. The arbitration was held under the auspices of the Education Labour Relations Council in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (LRA) and the award is issued in terms of Section 138(7) of the LRA.
3. The arbitration process commenced on held 28 September 2020 via zoom.
4. The employee was present and not
ISSUES TO BE DECIDED
5. I have to determine whether the employee
6. Order appropriate relief.
BACKGROUND TO THE ISSUE IN DISPUTE
7. The employee referred a dispute relating to unilateral change to terms and conditions of employment.
8. The matter was set down for arbitration on 28 August 2020 wherein the employer raised a jurisdictional.
9. A jurisdictional ruling was issued and the matter was rescheduled for arbitration on 28 September 2020.
10. Both parties submitted their bundle of documents. Employer’s bundle was marked … and the employee’s bundle was marked ….
11. The proceedings were mechanically recorded.
SURVEY OF EVIDENCE AND ARGUMENTS
12. Hunadi Jemaima Lamola testified under oath and stated that she was offered a position an as Educator at Kgakoa Secondary School on 01 February 2019 on a salary notch of R372 696.00 per annum. At the time of the offer she was employed somewhere permanently. She then decided to resign and return to teaching.
13. On 29 July 2019, the employer’s Mr Sathekge and one lady colleague came to her workplace with a letter informing her of overpayment made. They also gave her an acknowledgement of debt form to sign. She was advised that from 1 August 2019 her salary will be adjusted from R372 696.00 per annum to R287 661.00. She refused to sign the acknowledgement of debt form because she had already taken life changing decisions.
14. Under cross examination she conceded that the entry notch of a CSI Educator R262 899.00 per annum. She denied however that every new educator always gets appointed in that notch which because she was an educator from 1 January 1988 until April 2013 when she terminated her services with the employer. When asked to explain the procedure that should be followed to determine her salary after being re-appointed, she said that she must be appointed on a notch that relates to her experience. She does not know the determination of notches by the employer. She agreed with the contents of the appointment letter and in particular paragraph 6 which stipulated that should any error be detected later, they will be rectified. When asked how she understood paragraph 6, she said it is “bold” and could not elaborate. She further stated that she was at the level of Head of Department (HOD) when she resigned and that she was appointed on a lower level.
15. There was no examination.
16. Christinah Tladi stated under oath that she was the employer’s Assistant Director based at Capricorn North District. She stated further that when the employee was re-appointed in February 2019, she was erroneously given a notch for HOD. The appointment had to be corrected in line with the provisions of Collective Agreement 2 of 2018. The notch of R372 696.00 per annum was not the correct notch.
17. A letter was forwarded to the employee which was hard delivered by herself and Mr Sathekge informed her of the error and the need to repay the difference.
18. Under cross examination, she stated that she was not aware of the resolution when the offer was given to the employee. It was also put to her that an argument will be submitted to the effect that provisions of Personnel Administrative Measures (PAM) do not apply to the employee’s case.
19. The employer closed its case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
20. The employee’s case related to the unilateral changes to terms and conditions of her employment. The change complained of was the employer’s correction of the salary notch from R372 696.00 to R279 069.00 (the adjusted to R287 661.00). as a result of this correction, the employee was requested to sign an acknowledgement of debt and repay R49 384.54 which was an alleged overpayment.
21. It is common cause that the employee was offered a position as an Educator CSI at Kgakoa Secondary School. It was further common cause that the salary notch of CSI Educator ranges from R262 899.00 to R589 398.00 per annum. In fact, when asked by the employer’s representative whether she agreed with every detail contained in the appointment letter, the employee answered in the affirmative. To that extent, the appointment letter provides, at paragraphs 4 and 6 as follows:
(4) Your terms and conditions of employment will be requested in terms of
Personnel Administrative Measures (PAM) and other relevant policies.
(6) Should any errors be detected later, they will be rectified accordingly.
22. The appointment letter clearly makes provision for rectification of any errors that may be detected. The error now detected was the incorrect notch which is firstly not provided for in the salary scale of CSI 1 educator at the time of the appointment and secondly the salary notch is clearly in violation of Collective Agreement No 2 of 2018 signed on 25 September 2018. This Collective Agreement refers to amendments to the Personnel Administrative Measures.
23. Annexure “A” of the Collective Agreement provides doe the determination of salaries. Clause 22.214.171.124.1 (b) provides as follows:
An educator who is appointed after a break in service shall always be appointed to the entry level salary notch code of the salary band of the post to which he/ she has been appointed under the following conditions:
(b) should an educator resign or retire and comes back in service on the lower
post level and has more than 6 years of uninterrupted service on any post
level, such an educator shall be awarded additional 6 notches to the minimum
(entry) notch of the post which he/she is appointed.
24. The employee even when asked about her understanding of paragraph 6 of her appointment letter, she just said it is bold and could not elaborate. She could easily read and understand English because she offered some answers in English during the proceedings. As to why she could not understand that her appointment letter made provision for correction of errors remained answered.
25. It was further put to the employer’s witness that the provisions of PAM did not apply to this case. This statement did not assist the employee’s case simply because it was not canvassed or stated by the employee herself when testifying. Secondly the appointment letter clearly refers to her conditions and terms of employment being regulated by PAM. Clause 8.12.1 provides as follows:
“If an incorrect salary on appointment, or transfer or promotion or if 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 or in circumstances under which it should not have been awarded or granted to him or her, the employee will correct the educator’s salary with effect from the date on which the incorrect salary commenced notwithstanding the fact that the educator concerned was aware that an error had been made”.
26. Having considered the overall evidence, I am of the view that the employee’s case should fail. Accordingly, I make the following award:
27. The employee’s referral is hereby dismissed.