Case Number: ELRC 1104-19/20KZN
Applicant: NAPTOSA obo Khan
Respondent: Department of Education: KwaZulu-Natal
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Via Teleconference
Award Date: 2 December 2020
Arbitrator: Nasreen Jajbhay
IN THE EDUCATION LABOUR RELATIONS COUNCIL
CASE NO: ELRC 1104-19/20KZN
In the matter between:
NAPTOSA obo KHAN Applicant
DEPARTMENT OF EDUCATION: KZN Respondent
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The abovementioned matter was scheduled for arbitration on the 26th August 2020, 9th September 2020 and 18th November 2020 respectively via teleconference.
1.2 The applicant was present and represented by Ms L. Roos of NAPTOSA whereas the respondent had been represented by Ms M. Mtwetwa.
1.3 A signed pre-arbitration minute was concluded on the 26th August 2020.
1.4 The process was detailed together with the approach adopted, viz, inquisitorial.
1.5 Parties agreed to submit written closing argument on the 25th November 2020.
2. ISSUE TO BE DECIDED
2.1 Whether the applicant is entitled to recognition of service outside public education for the period 1 April 2003 - 28 February 2017.
3.1 The parties agreed that the applicant was employed as a post level 1 educator on the 1st March 2017 and currently acts as an HOD.
3.2 He is remunerated at a monthly gross salary of R24 734.85.
3.3 The applicant seeks recognition of service outside public education and the awardal of notches due to him for this particular period.
SURVEY OF EVIDENCE AND ARGUMENT
At the outset, it must be noted that the below merely serves as a summary of the salient points presented and must not therefore be construed as a verbatim record or transcript. The proceedings were recorded for this purpose. I nevertheless
considered the full conspectus of these submissions in rendering a determination.
4. APPLICANT’S SUBMISSIONS
Ms Roos on behalf of the applicant submitted inter alia as follows:
4.1 Personnel Administrative Measures, hereinafter (“PAM”) is the leading labour specific document that governs all state educators nationally. According to Chapter B point 4.8.3 which deals with recognition outside public service, in particular, clause D and E, the applicant qualifies for recognition in terms of both actual and appropriate experience. According to this clause, the applicant should be granted 1 additional notch on the appropriate level. There are no conditions attached to this clause and the respondent’s reliance on a dated clause in the KZN Circular 5 of 2018, hereinafter (“Circular”) is thus misplaced. The respondent relies on a clause contained in the Circular that has since been repealed. PAM nevertheless supercedes the Circular. In order for the applicant to be successful in his claim, he is merely required to demonstrate that he has teaching experience. Since the experience is outlined in his service certificate, he is entitled to the relief sought. The applicant has suffered insurmountable prejudice as a result of the respondent’s failure to recognize his previous service as he has been remunerated at a lower salary.
5. RESPONDENT’S SUBMISSIONS
5.1 Swadesh Taku, human resources officer testified inter alia that, he has 27 years of experience. The applicant was employed by Hartley College for some 15 years prior to joining the Department. He rendered 14 years of his service with a matric certificate and 11 months with an REQV 13 qualification. When the applicant had commenced his tenure with the Department, his experience outside public education was calculated at three months in terms of paragraph 5.3 of the Circular. PAM sets out an example as to when an educator would be eligible for recognition of previous service. The applicant is not entitled to the relief sought as he seeks to claim for a period where he did not attain the necessary qualification and further where he did, this was less than 12 months. The Circular is relevant as it governs the terms of recognition of previous service and is read with Employment of Educators Act 76 of 1998, hereinafter (“EEA”) and PAM.
6.1 Having carefully considered the respective submissions and documentation adduced, I find as follows -
6.2 PAM regulates inter alia, the salaries of educators serving in the public domain, whereas the object and purpose of the Circular serves to provide measures and directives for the effective implementation of PAM.
6.3 That said, this Circular is applicable to employees employed in terms of the EEA which notably includes the applicant in the present dispute.
6.4 It follows that neither PAM nor the Circular can be read in isolation.
6.5 Since the concepts are interrelated and in fact speak to each other, it appears that the intention was for these documents to be read in conjunction.
6.6 I say this as the explanation and examples cited in PAM are consistent with the views expressed in the Circular and the EEA.
I was therefore dissuaded by the applicant’s submissions and consequently rejected same for the reasons listed hereunder -
6.7 The applicant’s argument hinged on the experience contained in the certificate of service.
6.8 It was argued that this experience consisted of both actual and appropriate experience as per D and E respectively.
6.9 PAM regulates through a series of examples how actual and/or appropriate teaching experience is recognised together with the implication of this experience on the salary increment of the educator.
6.10 Paragraph 5.3 of HRM 5 of 2018 at paragraph 11(3) states that, “only experience gained after the educator has been placed in a qualification category will be recognised.”
6.11 This is mirrored in regulation 11(3) of the EEA which states that, “all experience recognised in terms of subsection (2) shall be deemed to be experience gained after a candidate has been placed in a qualification category.”
6.12 Clause 6(3)(iii) of the Circular clearly states that, “the salary scale that was applicable to educators in category D (MO) will apply to an educator with a qualification of REQV 14 and higher.”
6.13 In as much as the applicant’s teaching experience cannot be discounted, until October 2016, the highest qualification held by the applicant was REQV 13 with corresponding notch code 56.
6.14 The applicant obtained his REQV 14 qualification on the 24th November 2016 and since he commenced employment with the Department on the 1st March 2017, his recognizable experience is calculated as 3 months.
6.15 Since this period is less than 12 months, the additional salary notch does not bear application.
Consequently, I make the following order -
7.1 Since it has been found that the applicant is not entitled to recognition of service outside public education, the application is hereby dismissed.
DONE AND SIGNED AT JOHANNESBURG THIS 2ND DAY OF DECEMBER 2020