ELRC1103-19/20KZN
ELRC1103-19/20KZN
Award Date:
21 November 2020
Case Number: ELRC1103-19/20KZN
Province: KwaZulu-Natal
Applicant: NAPTOSA obo Kaylin Chiazzari
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Virtually
Award Date: 21 November 2020
Arbitrator: V Naidoo
Panellist: V Naidoo
Case No.: ELRC1103-19/20KZN
Date of Award: 21 November 2020
In the matter between:
NAPTOSA obo Kaylin Chiazzari
Union / Applicant
and
Provincial Department of Education: KZN
Respondent
Union/Applicants’ representative: Ms L Roos
NAPTOSA
Respondent’s representative: Mr M Bejanath
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an arbitration award in respect of an interpretation of a collective agreement dispute between NAPTOSA obo Kaylin Chiazzari, the Applicant, and the Provincial Department of Education, KZN the Respondent.
2. The hearing was held virtually on 02 November 2020. The proceedings were conducted in English and recorded electronically.
3. Applicant was represented by Ms L Roos of NAPTOSA and Respondent was represented by Mr M Bejanath and two bundles of documents were admitted into evidence.
ISSUE TO BE DECIDED
4. The issue to be decided is the interpretation and application of Collective Agreement 2 of 2018 with regard to an Educator with SGB experience.
BACKGROUND TO THE DISPUTE
5. Respondent suggested that Council be joined to the proceedings as the author of the Collective Agreements. It was noted that none of the HR practitioners employed by Respondent were willing to testify to their understanding of the relevant Collective Agreement.
6. There was no dispute related to the facts and both representatives led argument. It is common cause that Applicant had a total of 38 months of experience as an Educator employed by the School Governing Body (SGB) prior to her permanent appointment as an Educator with Respondent.
7. Applicant seeks to have her SGB teaching experience to be recognised in terms of Collective Agreements 4 and 5 of 2003 to qualify for an additional 3 notches on her current salary.
SUMMARY OF THE EVIDENCE AND ARGUMENT
8. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the documentary evidence and argument led at the arbitration hearing. What follows is a summary of the evidence relevant to my findings only.
Applicant’s case
9. Applicant made reference to the Personnel Administration Measures (PAM), Clause B8.4.3.1 which states under (c) “Experience gained after 1 January 2008” that for every 12 months of actual teaching or appropriate experience that an educator has gained, he/ she will be granted one additional notch (at least 1%) on the applicable salary range.
10. It was argued that Respondent refused to grant Applicant recognition of her service to the SGB by relying on Collective Agreement 2 of 2018. However, it states at clause B8.5.2.3, “Appropriate experience obtained outside public education for determination of salary” -
(a) The provisions of B8.4.3.1 relating to the above-mentioned in the determination of salary will not apply to educators who have resigned or retired and reappointed.
11. Additionally, at PAM B3.4 – “the Reappointment of Educators” are addressed in the following circumstances, none of which apply to Applicant.
3.4.1 Educators who have retired
3.4.2 Educators whose services were terminated due to rationalisation
3.4.3 Permanent incapacity
3.4.4 Educators who have taken Voluntary Severance Package…
12. In Chapter 4 of the Employment of Educators Act, dealing with Termination of Services, the following are mentioned:
10. Retirement
11. Discharge of Educators
12. Discharge on account of ill-health
13. Discharge of Educators appointed on probation
14. Certain Educators deemed discharged and
15. Resignation
It was argued that Applicant does not fall within these categories as well.
13. Her 38 months service in the SGB post therefore ought to be recognised and her salary notch ought to be adjusted accordingly.
Respondent’s case
14. Respondent argued that clause B8.5.2 of Collective Agreement 2 of 2018 deals with reappointment after a break in service. It addresses Educators who had resigned or retired and not Substitute Educators. Applicant was correctly employed as a Level 1 Educator on the minimum salary notch.
SURVEY OF EVIDENCE AND ARGUMENT
15. It is common cause that Applicant has 38 months of experience in an SGB post. It is common cause that this does not include her experience as a Substitute Educator employed by Respondent.
16. There is no dispute that Clause 8.5.2 of Collective Agreement 8 of 2018 has been specifically drafted for Educators who have resigned or retired and wished to re-enter the system.
17. I agree with Applicant’s interpretation that Clause B8.4.3.1 of PAM is not specifically drafted for Educators who have resigned or retired. Nor is this clause qualified by the clauses in Collective Agreement 2 of 2018 to the extent that it excludes consideration of the service of an Educator in a SGB post.
18. It is my view that if the drafters of Collective Agreement 2 of 2018 had wished to exclude Educators with SGB experience, they would have expressly indicated as such in the same manner that they excluded its application to Educators who retired or resigned and re-entered the system.
AWARD
19. Clause B8.5.2.3 of Collective Agreement 2 of 2018 does not apply to the Applicant, Kaylin Chiazzari.
20. Clause B8.4.3.1 of PAM applies to the Applicant, Kaylin Chiazzari, and her 38 months of SGB service must be recognised accordingly by the Respondent, the Provincial Department of Education, KZN.
21. There is no award as to costs.
Dated at Durban on this 21st day of November 2020.
ELRC Panellist
Vashnee Naidoo
Province: KwaZulu-Natal
Applicant: NAPTOSA obo Kaylin Chiazzari
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Virtually
Award Date: 21 November 2020
Arbitrator: V Naidoo
Panellist: V Naidoo
Case No.: ELRC1103-19/20KZN
Date of Award: 21 November 2020
In the matter between:
NAPTOSA obo Kaylin Chiazzari
Union / Applicant
and
Provincial Department of Education: KZN
Respondent
Union/Applicants’ representative: Ms L Roos
NAPTOSA
Respondent’s representative: Mr M Bejanath
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an arbitration award in respect of an interpretation of a collective agreement dispute between NAPTOSA obo Kaylin Chiazzari, the Applicant, and the Provincial Department of Education, KZN the Respondent.
2. The hearing was held virtually on 02 November 2020. The proceedings were conducted in English and recorded electronically.
3. Applicant was represented by Ms L Roos of NAPTOSA and Respondent was represented by Mr M Bejanath and two bundles of documents were admitted into evidence.
ISSUE TO BE DECIDED
4. The issue to be decided is the interpretation and application of Collective Agreement 2 of 2018 with regard to an Educator with SGB experience.
BACKGROUND TO THE DISPUTE
5. Respondent suggested that Council be joined to the proceedings as the author of the Collective Agreements. It was noted that none of the HR practitioners employed by Respondent were willing to testify to their understanding of the relevant Collective Agreement.
6. There was no dispute related to the facts and both representatives led argument. It is common cause that Applicant had a total of 38 months of experience as an Educator employed by the School Governing Body (SGB) prior to her permanent appointment as an Educator with Respondent.
7. Applicant seeks to have her SGB teaching experience to be recognised in terms of Collective Agreements 4 and 5 of 2003 to qualify for an additional 3 notches on her current salary.
SUMMARY OF THE EVIDENCE AND ARGUMENT
8. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the documentary evidence and argument led at the arbitration hearing. What follows is a summary of the evidence relevant to my findings only.
Applicant’s case
9. Applicant made reference to the Personnel Administration Measures (PAM), Clause B8.4.3.1 which states under (c) “Experience gained after 1 January 2008” that for every 12 months of actual teaching or appropriate experience that an educator has gained, he/ she will be granted one additional notch (at least 1%) on the applicable salary range.
10. It was argued that Respondent refused to grant Applicant recognition of her service to the SGB by relying on Collective Agreement 2 of 2018. However, it states at clause B8.5.2.3, “Appropriate experience obtained outside public education for determination of salary” -
(a) The provisions of B8.4.3.1 relating to the above-mentioned in the determination of salary will not apply to educators who have resigned or retired and reappointed.
11. Additionally, at PAM B3.4 – “the Reappointment of Educators” are addressed in the following circumstances, none of which apply to Applicant.
3.4.1 Educators who have retired
3.4.2 Educators whose services were terminated due to rationalisation
3.4.3 Permanent incapacity
3.4.4 Educators who have taken Voluntary Severance Package…
12. In Chapter 4 of the Employment of Educators Act, dealing with Termination of Services, the following are mentioned:
10. Retirement
11. Discharge of Educators
12. Discharge on account of ill-health
13. Discharge of Educators appointed on probation
14. Certain Educators deemed discharged and
15. Resignation
It was argued that Applicant does not fall within these categories as well.
13. Her 38 months service in the SGB post therefore ought to be recognised and her salary notch ought to be adjusted accordingly.
Respondent’s case
14. Respondent argued that clause B8.5.2 of Collective Agreement 2 of 2018 deals with reappointment after a break in service. It addresses Educators who had resigned or retired and not Substitute Educators. Applicant was correctly employed as a Level 1 Educator on the minimum salary notch.
SURVEY OF EVIDENCE AND ARGUMENT
15. It is common cause that Applicant has 38 months of experience in an SGB post. It is common cause that this does not include her experience as a Substitute Educator employed by Respondent.
16. There is no dispute that Clause 8.5.2 of Collective Agreement 8 of 2018 has been specifically drafted for Educators who have resigned or retired and wished to re-enter the system.
17. I agree with Applicant’s interpretation that Clause B8.4.3.1 of PAM is not specifically drafted for Educators who have resigned or retired. Nor is this clause qualified by the clauses in Collective Agreement 2 of 2018 to the extent that it excludes consideration of the service of an Educator in a SGB post.
18. It is my view that if the drafters of Collective Agreement 2 of 2018 had wished to exclude Educators with SGB experience, they would have expressly indicated as such in the same manner that they excluded its application to Educators who retired or resigned and re-entered the system.
AWARD
19. Clause B8.5.2.3 of Collective Agreement 2 of 2018 does not apply to the Applicant, Kaylin Chiazzari.
20. Clause B8.4.3.1 of PAM applies to the Applicant, Kaylin Chiazzari, and her 38 months of SGB service must be recognised accordingly by the Respondent, the Provincial Department of Education, KZN.
21. There is no award as to costs.
Dated at Durban on this 21st day of November 2020.
ELRC Panellist
Vashnee Naidoo