Case Number: ELRC1072-19/20EC
Province: Eastern Cape
Applicant: SAOU obo Christeen Terblance
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtual hearing (Zoom)
Award Date: 8 December 2020
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: ELRC1072-19/20EC
Date of Award: 8 December 2020
In the ARBITRATION between:
SAOU obo Christeen Terblance
Department of Education: Eastern Cape
Applicant’s representative: Mr Kruger
Applicant’s address: Brampton Avenue
Port Elizabeth, Telephone: 0825797213
Respondent’s representative: Mr Eskok. Mr Pillay
Respondent’s address: Private Bag x 3915
Telephone: 041 403 4588
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 33A (4) read with Section 24(5) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 3 December 2020 and the proceedings were electronically recorded. The applicant, Christeen Terblanche was represented by Mr Kruger, an official from SAOU, a registered trade union. The respondent, Department of Education: Eastern Cape were represented by Mr Eskok and Mr Pillay from the respondent’s District Office’s Labour Relations Unit in Port Elizabeth.
ISSUE TO BE DECIDED
2. This dispute concerns the shortfall of back-pay that the applicant received as part of pay progression as at July 2018 in relation to the implementation of PSCBC Resolution 1 of 2018 read in conjunction with the provisions as contained in the PAM.
BACKGROUND TO THE ISSUES
3. The parties elected to proceed via a Stated Case in that the respondent’s representatives were unable to obtain a written mandate to sign a settlement agreement although the applicant’s entitlement and the respondent’s liability was conceded. Therefore, there existed no disputes of fact. The National Department of Basic Education was joined as an interested third party in that they had conducted an investigation as to the current matter and had recommended to the respondent that the respondent settle this dispute with the applicant party.
ANALYSIS OF EVIDENCE AND ARGUMENT
4. Whilst the issue appeared as an anomaly which affected not only the applicant, but educators within that specific category across other Provinces as well, Department of Basic Education scheduled an urgent meeting with Senior Officials of their Department and with Officials of the e Department of Education: East Cape, via a virtual platform on 5 November 2020.
5. The Department of Education: Eastern Cape contends that during the process of adjusting salaries an anomaly arose in the adjusted salary scale for educators, in particular affecting educators on notch 192. Mrs. Terblanche is one of the 490 employees on the salary notch of 192 that were affected.
6. Mrs. Terblanche received an incorrect implementation of her salary progression (1 July 2018). The applicant had a shortfall in the back-pay that she received in regards to the back dated salary progression of 1.3% that was supposed to have been implemented on 1 July 2018.
7. The applicant was on salary notch  R301 683 for the period 01/07/2018 to 31/03/2019. However, with the 1.3% salary progression, the applicant should have progressed to notch  R304 698. Consequently, from 01/07/2018 to 31/03/2019 nine months had passed in which the applicant suffered financial losses because the applicant was on the wrong notch.
7.1 Calculation of financial losses (short pay) for the time period 01/07/2018 to 31/03/2019.
R304 698 – R301 683 = R3015
R3015 ÷ 12 months = R251,25
R251,25 x 9 months = R2261,25
7.2 The applicant therefore suffered financial losses of R2261.25 from 1/07/2018 to 31/03/2019.
8. The applicant was once more progressed to the incorrect notch  R318 879 with the implementation of the salary adjustment of 5.7% during the time period of 01/04/2019 to 30/06/2019. The applicant should have been moved from salary notch  R322 065 with the salary adjustment of 5.7%.
8.1 Calculation of financial losses for the time period 01/04/2019 to 01/07/2019.
R322 065 – R318 879 = R3186
R3186 ÷ 12 months = R265.50
R265.50 x 3 months = R796.50
8.2 The applicant suffered financial losses of R796.50 from 01/04/2019 to 01/07/2019.
9. The applicant was progressed on 1/07/2019 to notch  R 323 661 instead of notch  R326 895.
9.1 Calculation of financial losses for the time period 1/07/2019 – 31/12/2020
R326 895 – R323 661 = R3234
R3234 ÷ 12 months = R269,50
R269.50 x 18 months = 4851,00
9.2 The applicant suffered financial losses of R4851,00 for the time period 01/07/2019 – 31/12/2020.
10. The applicant suffered the total amount of losses to the value of R7908,75
1/7/2018 – 31/3/2019
1/4/2019 – 30/6/2019
1/7/2019 – 31/12/2020
These calculation EXCLUDES back-pay on bonuses. (This will be calculated programmatically on implementation)
11 Clause 1.3 of Annexure “C” (Dispute Resolution Procedures) of ELRC Resolution 6 of 2016 provides that a dispute of right declared in terms of collective agreement concluded in the PSCBC may be referred to the ELRC, if the employer is the same employer in the ELRC.
12 Clause 7.2. of Annexure “C” (Dispute Resolution Procedures ) of ELRC Resolution 6 of 2016 provides that subject to clause 7.2.2, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 69 regarding:
12.1 any dispute concerning a contract of employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or
12.2 any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 7.5.
13 Clause 69(2) also provides that a Collective Agreement of the Council is deemed to include:
13.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and;
13.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
14 Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
15 Clause 69.6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
16 Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
17 PSCBC Resolution 1 of 2018 provides for an agreement on the salary adjustments and improvement on conditions of service in the public service for the period 2018/2019; 2019/2020 and 2020/2021. This agreement provides for a 3 year multi terms agreement on salary adjustments and improvements on conditions of service.
17.1 Clause 3.1. provides that the salary adjustment for the period 1 April 2018 to 31 March 2019, effective from 1 April 2018, for employees on salary levels 1-12 will be as follows; Level 1 to 7: 7%; Level 8 to 10 : 6.5%; salary levels 8 to 10 to 6.5% and Level 11 to 12: 6%.
17.2 Clause 3.2. provides for the salary adjustment for the period 1 April 2019 to 31 March 2020, effective from 1 April 2019, for employees on salary levels 1-12 will be as follows: Level 1 to 7: Projected CPI +1.0%; Level 8 to 10 : Projected CPI +0.5%; and Level 11 to12 : Projected CPI.
17.3. Clause 4.1. provides that the parties agree to the equalization of pay progression across the public service at 1.5% per annum to employees appointed in the public service in terms of the Employment of Educators Act 76 of 1998 (as amended); Police Service Act 68 of 1995 (as amended); Public Service Act 103 of 1994 (as amended); and the Educators appointed in terms of the Correctional Services Act 111 of 1998 (as amended) and Employment of Educators Act 76 of 1998 (as amended);
17.3 Clause 4.2.1 further provides that the parties agree to implement the equalization incrementally for; Educators employed in terms of the Employment of Educators Act 76 of 1998 (as amended); TVET lecturers employed in terms of the Public Service Act 103 of 1994 (as amended); and the Educators appointed in terms of the Correctional Services Act 111 of 1998 (as amended).
17.3.1 Clause 22.214.171.124 provides for the implementation of an across the board adjustment of 0,3% of the equalization with effect from 1 July 2018;
17.3.2 Clause 126.96.36.199 also provides for the implementation of an across the board adjustment of 0,2% of the equalization with effect from 1 July 2019.
18. As conceded by the respondent that due to a persal systems error, the respondent incorrectly implement the pay progressions and adjustment of the applicant’s salary contrary as agreed to in PSCBC Resolution 1 of 2018.
19. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.” (emphasis added)
20. I must complement the respondent’s representatives for their honesty and integrity in these proceedings. Their approach assisted in resolving the impasse between the parties.
21. I therefore make the following award.
22. The respondent, the Department of Education: Eastern Cape failed to correctly implement pay progressions and adjustment of the applicant’s salary as agreed to in PSCBC Resolution 1 of 2018.
23. The respondent, Department of Education: Eastern Cape is ordered to pay the applicant, Christeen Terblanche an amount of R7908.75 (seven thousand, nine hundred and eight rand and seventy five cents) that reflects the shortfall.
24. The amount as referred to in paragraph 23 above is to me paid to the applicant by no later than 31 March 2021.
Name: Jonathan Gruss