ELRC1087-19 /20LP.
Award  Date:
20 November 2020
Case Number: ELRC1087-19 /20LP.
Province: Limpopo
Applicant: Dr Seshothela Samuel Mathunyane
Respondent: Department of Education (Limpopo Provincial Administration)
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Polokwane, Limpopo Province
Award Date: 20 November 2020
Arbitrator: Ntsepeng Mookamedi.
ARBITRATION AWARD.
Case Number : ELRC1087-19 /20LP.
Panellist : Ntsepeng Mookamedi.
Date of Award : 20 November 2020.

In the ARBITRATION between

Dr Seshothela Samuel Mathunyane
(Union / Applicant)
And
Department of Education (Limpopo Provincial Administration)
(Respondent)

Applicant’s Representative : In Person.
Applicant’s Postal Address : P.O.Box 1675
Groblersdal
0470
Telephone number : (013) 269 0034
Cellular phone number : 0829037031.
Email address : stunya.mathunyane@gmail.com.

Respondent’s Representative : Mr Mokgoba Matlou.
Postal Address of the Respondent : Private Bag X 9489
Polokwane
0700
Respondent’s telephone number : (015) 290 7600
Fax number : (015) 291 6920
Email address : RafapaMG@edu.limpopo.gov.za.
DETAILS OF THE HEARING AND REPRESENTATION.
[1] This is an Arbitration Award regarding an employment related dispute between the Applicant, Dr Seshothela Samuel Mathunyane and the Respondent, Department of Education, Limpopo Provincial Administration. The arbitration hearing took place on 29 October 2020 and was concluded on 19 November 2020 at Polokwane, Limpopo Province. The Applicant appeared in person and conducted his own case. The Respondent also attended the arbitration hearing and was duly represented by Mr Mokgoba Matlou, its Assistant Director responsible for misconduct, disputes resolution and grievance handling. The Arbitration Award is just a summary of the parties’ material evidence relevant to the dispute before me.
[2] The arbitration hearing was both mechanically and manually recorded. Prior to the commencement of the arbitration hearing, the Respondent submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle A”. The Respondent’s bundle ranged from “Page 1 until Page 35”. On the corresponding side, the Applicant also submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle B”. The Respondent’s bundle of document ranged from “Page 1 until Page 41”. The arbitration hearing was therefore decided on documentary as well as on oral evidence.
NATURE OF THE DISPUTE.
[3] The dispute concerns an alleged unfair labour practice in relation to the Respondent’s failure to have paid the Applicant’s annual performance bonus as well as its attendant pay progression during the 2018/2019 performance assessment year. The dispute has been referred to the Education Labour Relations Council (the ELRC) in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 read together with Clause 9.1.2.1 of the ELRC’s Constitution (Part C, Dispute Resolution Procedures).
[4] The dispute is regulated by the ELRC’s Collective Agreement 3 of 2017 (Education Management Service (EMS): Performance Management and Development Systems (PMDS) For Office Based Educators.
ISSUE TO BE DECIDED
[5] I am required to decide whether or not the Respondent’s failure for not having paid the Applicant’s performance assessment bonus as well as its attendant salary pay progression during the period expressed in Paragraph 3 of the Arbitration Award, constitutes an unfair labour practice. Should I find that to be the case, I shall determine an appropriate relief.
BACKGROUND TO THE DISPUTE
[6] The ELRC concluded Collective Agreement 3 of 2017 on 18 October 2017. Such Collective Agreement has in its principal purpose, geared towards the management of the Respondent’s employees’ performance on an annual basis. The performance of each of the Respondent’s employee is a twelve month period during which each employee’s performance is planned, executed and assessed.

[7] The performance of each of the Respondent’s employee is aligned to the Respondent’s annual planning cycle (that is, from 1 April of each year until 31 March of the succeeding year). The Applicant contended that he submitted his performance assessment during 2018/2019 assessment year cycle. The Applicant further contended that the Respondent failed to pay him performance bonus as well as salary pay progression during the performance assessment year under consideration.
[8] The Applicant consider the Respondent’s failure to have paid him such employment related benefits as constituting an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act. The Respondent contended that the Applicant failed to submit his performance assessment during the 2018/2019 performance assessment year, hence its decision to have excluded him from receiving such payment. The Respondent consider the Applicant’s alleged unfair labour practice as a meritless exercise which resonates within the confines of a vexatious as well as a frivolous referral to say the very least.
SURVEY OF EVIDENCE AND ARGUMENTS.
The Applicant’s case.
The Applicant’s first witness, Dr Seshothela Samuel Mathunyane, testified under oath as follows:
[9] He is employed by the Respondent as a Deputy Chief Education Specialist. He is responsible for Sepedi General Education and Training Band at the Respondent’s Circuit Office at Motetema, Limpopo Province. His employment history with the Respondent dates back from 1 February 1992 where he was initially appointed a CS1 Educator. He was later promoted to the position of a Principal Educator as well that of a Deputy Manager: Governance. On 1 August 2018, the Respondent later translated his position to that of a Deputy Chief Education Specialist.
[10] During the period September 2018 or any period incidental thereto, the Respondent organised an induction training session for its newly appointed Office Based Educators. The Deputy Chief Education Specialist post fall within the band of Office Based Educators in terms of the ELRC’s Collective Agreement 3 of 2017. The Respondent extended an invitation of the training induction for all newly appointed Office Based Educators. The Respondent excluded him to such invitation. He later approached the late Ms M.M Malebye (the then Respondent’s designated Official) who was responsible for coordinating the invitation for the newly appointed Office Based Educators.
[11] Ms Malebye told him that she was not aware that he was recently appointed as one of the Respondent’s Office Based Educator, hence the Respondent’s decision to have excluded him to such invitation. Post Ms Malebye’s departure from the world of the living to that of the departed, the Respondent later tasked Ms Raisibe Jerida Mphahlele with the responsibility to keep him posted with the details of the same training. Ms Mphahlele briefed him with the details of such training. Such briefing included the ELRC’s Collective Agreements 3 and 4 of 2017. Ms Mphahlele once told him during the briefing session that she forgot to bring along performance agreement forms which he was expected to complete for the 2018/2019 assessment performance year.

[12] Ms Mphahlele undertook to provide him with the performance assessment forms for 2018/2019 assessment year once she was in her Office after the conclusion of the briefing session. Ms Mphahlele failed to provide him with such performance assessment forms for during 2018/2019 assessment year cycle. He only received the performance assessment forms for 2018/2019 assessment year on 3 July 2020. Seeing that the Respondent was either failing or refusing to provide him with the performance assessment forms for 2018/2019 assessment year, he used a framework which is provided in Collective Agreement 3 of 2017 and designed his performance assessment agreement.
[13] On 5 July 2019, he submitted his Performance Agreement to the Respondent’s Performance Management Development System Directorate. The Respondent’s PMDS Directorate approved his submitted Performance Agreement. On 8 July 2019, he submitted his Performance Agreement to his immediate Supervisor, one certain Mr S. Matsapola. During the period July 2019, or any period incidental thereto, the Respondent issued an invitation to verify the performance assessment for all employees attached to Sekhukhune District. The Respondent’s PMDS Directorate verified the performance assessment for 2018/2019 assessment year. Such verification was conducted to the exclusion of his Unit/Division.
[14] Believing that the exclusion of his Unit/Division was as an innocent human omission, he personally took it upon himself and approached the Respondent’s PMDS Directorate. He alerted the Respondent’s PMDS Directorate that his Unit/Division did not feature in the PMDS Directorate’s performance assessment verification schedule. He requested the Respondent’s PMDS Directorate to provide him with a date of submission of his performance assessment for 2018/2019 assessment year. The Respondent’s PMDS Directorate disapproved his request. Ms Mphahlele told him that it was not necessary for his Unit to submit their performance assessment for 2018/2019.
[15] Ms Mphahlele told him that employees attached to his Unit became Office Based Educators in the middle of the second performance assessment cycle. As such, their eligibility or otherwise to be paid the same employment related benefits were dependent on their evaluated and assessed performance during the 2019/2020 assessment year. He advised Ms Mphahlele that her interpretation of Paragraph 5 of the ELRC’s Collective Agreement 3 of 2017 was incorrect. He submitted his performance assessment for 2018/2019 assessment year on 5 July 2019. The outcome of his performance assessment for 2018/2019 assessment year has, as at the conclusion of the current arbitration hearing not as yet been communicated to him.
[16] During cross examination, he testified that the Respondent translated his position to that of a Deputy Chief Education Specialist. Furthermore, that such translation into the said position became effective on 1 August 2018. The performance assessment of each of the Respondent’s employee, as per the ELRC’s Collective Agreement 3 of 2017, commence on 1 April each year and come to a conclusion on 31 March of the succeeding year. It is a twelve months performance assessment cycle. A version was put to him that any of the Respondent’s employee only become entitled to receive both a performance bonus as well as its attendant salary pay progression after the completion of the twelve months performance assessment cycle subject to being rated a highly effective score.

[17] He disagreed with such version put to him. He based his argument on Paragraph 7 of the Department of Public Service and Administration’s Circular on the Implementation of an Incentive Policy Framework linked to Departmental Performance Management Systems for Employees on Salary 1 to 12 in the Public Service. The said DPSA’s Circular has been signed by the relevant Director General on 27January 2003. Paragraph 7 of the DPSA’s Circular provides that “An employee must complete a continuous period of at least 12 months on her or his (relative) notch on 30 March of a year and must be performing satisfactorily, as assessed in terms of the respective Department’s performance management policies”.
[18] Mr Matlou put another version to him to the effect that in terms of the ELRC’s Collective Agreement 3 of 2017, any of the Respondent’s employee only become entitled to receive a salary pay progression after such an employee would have achieved a meritorious performance. He disagreed with Mr Matlou’s version and contended that any of the Respondent’s employee is entitled to receive a salary pay progression after such employee shall have completed a successive period of twelve months at the same salary notch level after one’s performance shall have been assessed by the Respondent’s PMDS Directorate.
[19] He contended that his performance has been assessed on each quarter during the 2018/2019 assessment year cycle. Mr Matlou put the last version to him that any of the Respondent’s employee become eligible to receive performance bonus as well as salary pay progression upon having concluded a Performance Agreement with the Respondent. He agreed with Mr Matlou’s version and said that the duty to conclude a Performance Agreement reside upon each Supervisee (himself in this matter) as well as the individual employee’s Supervisor (Mr S Matsapola in this case). Furthermore, that during the 2018/2019 performance assessment cycle, he completed his Performance Agreement and submitted it to his immediate Supervisor (Mr S Matsapola).
[20] He compiled such performance agreement on 5 July 2019. His performance assessment was later submitted for assessment on 8 July 2019. As at the conclusion of the current arbitration hearing, he did not receive any feedback relating to his performance assessment for 2018/2019 performance cycle. During 2018/2019 performance assessment year, his performance has not been assessed by his immediate Supervisor, Mr S Matsapola. The basis of the non-assessment of his performance is due to the fact that his initial post has been translated to that of a Deputy Chief Education Specialist during August 2018.
[21] His post’s translation to the position he currently occupy did not exempt him from performance assessment. He compiled his performance assessment for 2018/2019 performance cycle and submitted it to the PMDS Directorate. Ms Mphahlele verified his performance agreement for 2018/2019 performance assessment year.
Mr Sebole Johannes Dolamo, the Applicant’s second witness, testified under oath as follows:
[22] He is employed by the Respondent as a Senior Education Specialist at Motetema Circuit Office. He occupied the Senior Education Specialist post since 1 July 2018. He is attached to the same Unit/Division as the Applicant in this matter. On 5 July 2019, together with the Applicant, they went to Sekhukhune District Office with the sole aim to submit their performance assessment for 2018/2019 performance cycle.

[23] While the two of them were about to effect such submission, the Respondent’s PMDS Coordinator, Ms Mphahlele approached them and told them that it was not necessary for them to do so. Ms Mphahlele told them that the basis for them not to submit their performance assessments was due to the fact that they occupied their current posts in the middle of 2018/2019 assessment cycle. During cross examination, he testified that the Respondent’s performance assessment cycle starts on 1 April of each year and end on 31 March of the succeeding year.
[24] In terms of the Respondent’s performance assessment, each of the Respondent’s employee is required to enter into a performance assessment agreement with his/her immediate Supervisor. During 2018/2019 performance assessment cycle, he did not enter into any performance assessment agreement with the Respondent.
Ms Thethiwe Sophy Seloane, the Applicant’s third and last witness, testified under oath as follows:
[25] She is employed by the Respondent as a Senior Education Specialist at Sekhukhune District Office. She has been employed in the said position since 1 July 2018. During 2018/2019 performance assessment cycle, she entered into a performance assessment agreement. During cross examination, she testified that she entered into such performance assessment agreement with the Applicant. She is not aware as to whether or not the Applicant concluded his performance assessment agreement with his immediate Supervisor during 2018/2019 performance assessment cycle.
[26] The Applicant prayed for an Arbitration Award which would order the Respondent to comply with the following order, namely, payment of his outstanding performance bonus as well as its attendant salary progression for 2018/2019 assessment cycle. Furthermore, that such payments must be made at the rate of 15,5% financial interest per annum. The Applicant prayed for eight months’ compensation calculated at the rate of his monthly gross salary of R45,358-25 (Forty Five Thousand Three Hundred Fifty Eight Rand Twenty Five Cents) as an appropriate relief. The Applicant closed his case.
THE RESPONDENT’S CASE.
The only witness of the Respondent, Ms Raisibe Jerida Mphahlele testified under oath
as follows:
[27] She is employed by the Respondent as an Assistant Director attached to the Respondent’s Performance Management Development System Directorate. She work at Sekhukhune District Office. A summary of her duties entails the coordination of performance management assessments of the Respondent’s employees at a District Office level, capturing, conduct quality assurance of the employees’ performance assessments as well as processing of payment for performance assessment incentives to qualifying employees for any of the Respondent’s Office Based Educators.
[28] Motetema Circuit falls under Sekhukhune South District. The Respondent’s performance assessment cycle starts on 1 April each year until 31 March of the succeeding year. Paragraph 5 of the ELRC’ Collective Agreement 3 of 2017 regulates each of the Respondent’s employee’s performance assessment cycle. During the twelve months cycle, each of the Respondent’s employee performance is planned, executed and get assessed on a quarterly basis.
[29] Upon completion of each quarterly performance assessments, the individual Supervisors submits such reports to the District Office’s PMDS Unit. The District PMDS Units consolidates such submitted assessments and later forward them to the Provincial Office’s PMDS Directorate. During 2018/2019 performance assessment cycle, the Applicant failed to submit his performance assessment agreement (contract). Neither did the Applicant submit any of his performance assessments on a quarterly basis. On 5 July 2019, she paid the Applicant an official visit. The purpose of such visit was in relation to the Applicant’s non-submitted performance assessment agreement (contract) as well as quarterly performance assessments.
[30] She referred to a copy of her official visit to the Applicant’s workstation on the said day. A copy of her official visit appear on Page 37 of “Bundle B”. During cross examination, the Applicant put a version to her as to whether she provided the Applicant with a copy of performance assessment contract for 2018/2019 performance assessment cycle. She disagreed with the Applicant’s version and responded that the duty of availing performance assessment contract lie within Mr S.Matsapola as the Applicant’s immediate Manager. She further testified that she gave the Applicant monitoring and support so as to enable the Applicant to comply with Paragraph 5 of the ELRC’s Collective Agreement 3 of 2017.
[31] During re-examination, she testified that neither did the Respondent’s District Office PMDS Unit or the Provincial PMDS Directorate ever receive any of the Applicant’s performance assessment contract during the 2018/2019 performance assessment cycle. Furthermore, that neither did the Applicant ever submit any of his quarterly reports to the Respondent’s PMDS Directorate during the performance assessment under consideration. The Respondent has not committed any alleged unfair labour practice against the Applicant in so far as the non-payment of the Applicant’s performance bonus as well as salary notch progression is concerned.
[32] This is on the basis that the payment of such employment related benefits are performance based and subject to an employee’s performance having been assessed and been scored either a fully effective score (100%-119%) or a highly effective score (120%-133%). Based on the evidence, the facts and the law, the Applicant failed to establish a factual case for unfair labour practice. As such, the interest of fairness dictates that the Applicant’s alleged unfair labour practice dispute be accordingly dismissed. The Respondent closed its case.
ANALYSIS OF EVIDENCE, ARGUMENTS AND FINDINGS.
[33] Section 186 (2) of the Labour Relations Act provides that an 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 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.
[34] Section 186 (2) (a) of the Labour Relations Act is the legal basis of the current dispute. The point of departure in any alleged unfair labour practice dispute is that the Applicant, as the initiator of the alleged unfair labour practice litigation, let alone an alleged victim of such alleged unfair labour practice, has a duty to establish the existence of such claim. This position is aptly provided under section 191 (1) (a) (i) of the same Act (see also the authority of Ethekwini Municipality v SA Local Government Bargaining Council & others [2009] JOL 23625 (LC).
[35] Once such onus of proof has been factually established, the onus will then shift to the employer, (being the Respondent in this matter) to factually prove that the conduct in question was exercised in a fair manner. Fairness requires an evaluation that is multidimensional (see the seminal authority of Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) at paragraph 127) in this regard. In the matter of National Union of Metalworkers of South Africa v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (A) 589C-D; National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) at paragraphs 32 and 33, the court expressed the legal principle that the fairness required in the determination of any alleged unfair labour practice must be fairness towards both the employee and the employer.
[36] I have accordingly aligned myself with the same legal principles as expressed in the above cited authorities in dealing with the current dispute before me. The ELRC’s Collective Agreement 3 of 2017 clearly regulates matters relating to performance management and development system for all of the Respondent’s Office Based Educators. Paragraph 5 of the same Collective Agreement provides that performance management at the employee level is an on-going interactive process between an employee and her/his Supervisor about the employee’s performance. It goes further and provides that face-to-face on-going communication is an essential requirement of the process and covers the full performance cycle.
[37] Paragraph 5 of the above cited Collective Agreement further provides that for effectiveness of operation of the cycle is divided into integrated phases or elements of-
(a) Performance planning and agreement;
(b) Performance monitoring, developing and control;
(c) Performance assessment or appraisal; and
(d) Managing the outcomes of assessment.
[38] Paragraph 5 of the ELRC’s Collective Agreement concludes by providing that the performance cycle is a 12 months period for which performance is planned, executed and assessed. It must be aligned to the same period as the Department’s annual planning cycle, that is, 1 April to 31 March of the following year. The probation cycle is however linked to the appointment date of employees. Paragraph 6 of the same Collective Agreement deals with matters relating to the Respondent’s Office Based Educators’ performance planning and agreement.
[39] Paragraph 6.1.1 of the ELRC’s Collective Agreement provides that the Performance Agreement (PA) is the cornerstone of performance management at the individual level. It further provides that all employees are required to enter into and sign performance agreements with their immediate Supervisors, preferably within one month after the start of the new cycle. The above cited Paragraphs of the ELRC’s Collective Agreement are applicable to the dispute before me.
[40] In a nutshell, the form the basis of each party’s respective case in this matter. During his evidence in chief, the Applicant testified that the Respondent effected his translation from the position of Deputy Manager: Governance to the one of a Deputy Education Chief Education Specialist on 1 August 2018. The Applicant further testified that he was not provided with any performance assessment documentations for the rest of the 2018/2019 performance assessment cycle. He was only provided with such performance assessment documents on 5 July 2020, hence his inability to have submitted them during 2018/2019 performance assessment cycle (see Paragraph 12 of the current Arbitration Award).
[41] Strange enough, the Applicant later gave two conflicting versions of his alleged submission of his performance assessments for 2018/2019 year cycle (see Paragraphs 13 and 15 of the current Arbitration Award). The Applicant started by testifying that he submitted his 2018/2019 performance assessment documents to the Respondent’s PMDS Directorate on 5 July 2019. On the same Paragraph 14 of this Arbitration Award, the Applicant testified that he submitted his performance assessment documents to his immediate Supervisor, one Mr S. Matsapola on 8 July 2019.
[42] After having considered the Applicant’s evidence in its totality, I find the Applicant’s evidence to be full of factual as well as material conflicting versions. I therefore had to seek judicial guidance so as to deal with the Applicant’s conflicting version. To this end, I had to consult the seminal authority of Stellenbosch Farmers’ Winery Group Ltd and another v Martel et Cie and others [2003] (1) SA 11 (SCA). In this matter, the court expressed the legal principle that where a Commissioner/Arbitrator is faced with two conflicting versions before him the Commissioner must make a finding on the credibility of the witness and on the probabilities of the two versions, to determine where the truth lies. The court held that in such a situation, the question that the Commissioner should answer is whether the probabilities favour the party that bears the onus of proof.
[43] After having considered the legal principle expressed in the Stellenbosch matter, I find that the probabilities does not favour the Applicant being the party who bears the onus of proof in this matter. This is after I found that the Applicant’s evidence was full of both internal as well as external contradictions. The internal as well as external contradictions of the Applicant’s evidence have been proven during his evidence in chief where he testified that the Respondent failed to provide him with performance assessment documentations during the 2018/2019 performance assessment cycle, hence his inability to have submitted such performance assessments during the 2018/2019 performance assessment cycle.
[44] As the Applicant continued with his evidence, he began to give two conflicting versions in relation to his submission or otherwise of his 2018/2019 performance assessments. The internal as well as the external contradictions of the Applicant’s testimony is clearly recorded in Paragraphs 12, 13, 14, 19 until 21 of the current Arbitration Award). I also reject the Applicant’s defence to the effect that he submitted his 2018/2019 performance assessment documents to his immediate Supervisor, one certain Mr S. Matsapola. I reject the Applicant’s defence based on three important reasons. The first reason is that the Applicant admitted during his evidence in chief that he did not submit his 2018/2019 performance assessments.
[45] The second reason for rejecting the Applicant’s defence is that the Applicant later made an about turn and testified during his evidence in chief that he submitted such performance assessment documents to the Respondent’s PMDS Directorate and Mr S. Matsapola on 5 July 2019 and 8 July 2019 respectively. Strange enough, during the arbitration hearing, the Applicant did not provide any documentary shred of evidence which proved his submission of the 2018/2019 performance assessment document. The last reason for my rejection of the Applicant’s defence is that he testified that he compiled his Performance Agreement as well as his quarterly performance assessments and gave them to the Respondent’s PMDS Directorate as well as Mr S. Matsapola.

[46] Ms Mphahlele testified that at a District Office level, the PMDS Unit did not receive any of the Applicant’s Performance Agreement as well as performance assessment documents during the 2018/2019 performance assessment cycle. During the arbitration hearing, Ms Mphahlele led incontrovertible evidence which proved that during 2018/2019 performance assessment cycle, the Applicant failed to submit his duly completed Performance Agreement. Furthermore, that the Applicant did not also submit any of his quarterly performance assessments to the Respondent’s PMDS Directorate.
[47] Ms Mphahlele further presented evidence that having realised the Applicant’s failure to submit the said performance assessment instruments, she undertook an official visit to the Applicant’s workplace on 5 July 2019. Ms Mphahlele presented a copy of a record which documented her visit at the Applicant’s workplace on the said day. She presented a copy of such official visit on Page 37 of “Bundle B”. The sole purpose of Ms Mphahlele’s official visit to the Applicant’s workplace was to ensure that the Applicant comply with both Paragraphs 5 read together with Paragraph 6.1.1 of the ELRC’s Collective Agreement 3 of 2017.
[48] In the matter of De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC), the court with approval referred to the matter of FAWU and others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC), where it held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as evidence without an evidential basis would be no more than speculation. It is my considered view that the same legal principle militates against the Applicant’s case for having failed to lay an evidential foundation in relation to his alleged submission of his 2018/2019 Performance Agreement as well as performance assessments to the Respondent in this matter.
[49] I respectfully align myself with the same legal principle as it relates to the Applicant’s failure to have laid an evidential foundation in relation to his alleged submission of his Performance Agreement as well as performance assessments for 2018/2019 to the Respondent in this matter. I therefore find the Applicant’s evidence to be improbable, incredible, of poor probative evidentiary value in relation to the dispute before me. In the whole, I find that the Applicant, both on the facts, evidence and the law, failed to establish a case of unfair labour practice against the Respondent in this matter.
[50] The ineluctable conclusion I am factually and substantially able to arrive at based on the evidence before me is that the Applicant did not compile his Performance Agreement as well as quarterly performance assessments as per Paragraph 5 read together with Paragraph 6.1.1 of the ELRC’s Collective Agreement 3 of 2017 during 2018/2019 performance assessment cycle. In the absence of any such submitted performance assessment documentations which meet the performance assessment rating criteria as provided in Paragraph 32 of this Arbitration Award, I do not find any basis both on the facts, the evidence and the law which points to a direction of the Respondent having committed any such alleged unfair labour practice against the Applicant in this matter.
[51] On the corresponding side, after having considered the evidence of the Respondent in its totality, despite it being the evidence of a single witness which I had to treat it with great caution, to be probable, credible, of high probative evidentiary value, having been presented in a consistent manner in relation to the dispute before me. I also find the evidence of the Respondent to have an independent corroborative evidentiary material (Paragraphs 5 read together with Paragraph 6.1.1 of the ELRC’s Collective Agreement 3 of 2017).
AWARD.
[52] The Applicant has both on the facts, the evidence and the law, failed to establish an unfair labour practice against the Respondent in this matter.
[53] The Respondent did not commit an unfair labour practice against the Applicant based on the latter party’s failure to compile both his Performance Agreement as well as performance assessment documents in terms of the rating scale provided in Paragraph 32 of the current Arbitration Award during the 2018/2019 performance assessment cycle.
[54] The Applicant’s alleged unfair labour practice claim is hereby dismissed.

NTSEPENG MOOKAMEDI
(ELRC PANELLIST).
ADDRESS
261 West Avenue
Centurion
Gauteng 
0046
BUSINESS HOURS
8h00 to 16h30 - Monday to Friday
Copyright Education Labour Relations Council. 2021. All Rights Reserved. Created by 
ThinkTank Creative