Case Number: PSES 915-19/20
Province: Eastern Cape
Applicant: SAOU obo Mr Denton Hempel
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtual hearing (Zoom)
Award Date: 10 December 2020
Arbitrator: Catherine Willows
Case Number: PSES 915-19/20
Commissioner: Catherine Willows
Date of Award: 10 December 2020
In the matter between
SAOU obo MR DENTON HEMPEL
EASTERN CAPE DEPARTMENT OF EDUCATION
DETAILS OF HEARING AND REPRESENTATIONS
1. This award is rendered in terms of section 138(7) of the Labour Relations Act, 66 of 1995 as amended (the LRA).
2. The dispute was referred for arbitration in terms of section 186(2) (b) of the LRA and the hearing was held on the 25th November 2020 via Zoom Virtual Conferencing.
3. The Applicant, Mr Denton Hempel, was represented by Mrs V Van Wyk of SAOU. The Respondent, Department of Education Eastern Cape, was not present. The Respondent was served with notification to attend the proceedings via email to firstname.lastname@example.org on the 9th October 2020 and 4th November 2020.
4. Having satisfied myself that the Respondent had been duly and properly informed, together with having heard nothing from the Respondent that would cause me not to proceed with the matter, I proceeded with the arbitration on a default basis in terms of Section 29 (2) and (3) of the aforementioned Resolution.
5. The hearing was digitally recorded and was finalised on the date of hearing. The Applicant submitted a bundle of documents to be utilised in the presentation of his case, such marked “Applicant Bundle A”.Furthermore, the Applicant requested to submit closing arguments by close of business on Monday the 30th November 2020. This was agreed to and an argument was duly received on even date. Such argument has been considered in the preparation of this award.
6. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.
7. I am required to determine whether there has been failure by the Respondent to evaluate the Applicant and recognition of suitable years of service in terms of National Education Policy Act 27 of 1996 and National Education Policy on recognition and evaluation of qualifications for employment in education (10 February 2017).
8. If I find that that there has been a failure of the Respondent to apply Collective Agreement 4 of 2003 to the Applicant, to order appropriate relief in this regard.
BACKGROUND TO THE DISPUTE
9. The Applicant is employed as an Educator as from 15 March 2016 at Baysville Special School, East London. He teaches vocational courses, such as panel beating and motor bodyworks. The Applicant was evaluated by the Department of Higher Education & Training (DHET) on 30 May 2016 and he was assessed to be REQV12S, Salary Notch R126 720.00 which is professionally unqualified.10. In the assessment, it was stipulated that the documentation considered was merSETA 2006. Therefore the evaluation was only done with the N2 certificate which led to the assessment of REQV12S. The Applicant is claiming that his assessment should be REQV13S. In addition, the Applicant is claiming that despite his efforts, his previous service in terms of The Personnel Administrative Measures Act (hereafter referred to as “PAM”) Chapter B 8.4.3 was not recognised. The relief sought by the Applicant is for REQV12S to be adjusted to the correct REQV13S as well as his previous experience / service be recognised of nine (9) years and seven (7) months.
SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant’s evidence:
The Applicant testified under oath that he was appointed on 15 March 2016. Prior to his appointment, he submitted all his documentation but an error occurred whereby he was appointed on REQV12S instead of REQV13S.
1. Furthermore, he applied for recognition of previous experience as he had nine (9) years and seven (7) months prior service in motor body works and panel beating. An evaluation was done on the Applicant’s qualifications on 30 May 2016 and a certificate was issued stating that they took into account merSETA 2006.
2. It was evident therefore that the evaluation was only done with the N2 certificatewhich led to an assessment of REQV12S. Despite continuously engaging from March 2016 with meetings in 2018 and numerous correspondence (all supplied in documentation presented by the Applicant), Collective Agreement 4 of 2003 has not been implemented.
3. The Applicant submitted (with supporting documentation in his bundle of evidence) that he meets the criteria as reflected in Collective Agreement 4 of 2003 in that he has a merSETA Level 4 National Certificate (Vocational) which includes Trade Theory; he has completed an apprenticeship; he has passed a trade test and he has more than two years appropriate trade experience. As this was not taken into account when the Applicant was appointed in 2016, he was erroneously appointed on REQV12S (R126 720.00) whereby it should have been REQV13S of R209 649.00 Over a period of four years, this has led to a difference in remuneration of R82 929.00 per year.
4. It was submitted by the Applicant that over a period of four (4) years from appointment in 2016, this amounts to a figure of R331 716.00 (R82 929.00 X 4 years). After this adjustment, a further adjustment of nine (9) salary notches for recognition of previous service needs to be calculated which amounts to R219 255 per annum.
5. Therefore the Applicant claims for relief of the amounts cited above.
The Respondent’s Evidence:
6. As the Respondent did not attend the proceedings on 25 November 2020, I have no opposing evidence to consider.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS
7. The dispute before me relates to enforcement of Collective Agreement 4 of 2003 which relates to the incorrect appointment of the Applicant and failure to recognise prior service. The matter was set down in terms of Section 69 of ELRC Constitution: Part C: Dispute Resolution Procedures which relates to the enforcement of the BCEA and Collective Agreement provisions.
1. The purpose of this section is to enforce any terms and conditions of employment which constitute a term of contract of employment of any employee covered by a collective agreement in terms of Section 49 (1) of the BCEA. The Applicant has relied upon the provisions of Collective Agreement 4 of 2003 and the provisions of PAM to compel the Respondent to correct his appointment level and alter the salary notches in line with previous experience.
2. It is trite that the PAM document is a regulation which is based upon the provisions of Collective Agreements entered into at the ELRC. Chapter B 8.4.3 of PAM is based upon ELRC Collective Agreements 4 of 2003.
3. The Respondent, by its absence at the Arbitration proceedings on 25 November 2020, did not oppose the claim of the Applicant’s and I have no opposing submissions to consider. I therefore am not in a position to reject the claim of the Applicant as it was not disputed.
4. The Applicant and his representative are to be commended on the comprehensive and cogent submission of evidence and supporting documentation.
5. I am therefore persuaded that the Applicant has satisfactorily proven that his appointment in 2016 on REQV12S was an error based upon incomplete information as this should have been REQV13S. In addition, I am furthermore of the opinion that the Applicant has also proven that he is entitled to an adjustment and implementation of nine (9) salary notches, for recognition of previous service / experience.
6. The Applicant has succeeded in discharging the onus to prove his claim and on such basis, I grant him the relief sought.
7. In light of the above I make the following award.
(a) The Respondent, Department of Education, Eastern Cape is hereby ordered to comply with the provisions of the Personnel Administrative Measures (PAM) which is based on ELRC Collective Agreement 4 of 2003 by doing the following:
(b) Rectify the salary scale of the applicant, Mr Denton Hempel, from REQV12S to REQV13S as from date of appointment of 15 March 2016. This results in an adjustment amount of R331 716.00 (R82 929.00 per annum X 4 years);
(c) After the adjustment of Paragraph (b), a further adjustment of nine (9) salary notches for recognition of previous service / experience to be implemented to the amount of R219 255.00 per annum. (This is the annual remuneration for REQV13S plus 9 salary notches for recognition of previous service. The outstanding amount owed to the Applicant from date of appointment of 15 March 2016 to date is R38 424.00 which is the difference between R 219 255.00 / R209 649.00 = R9606.00 X 4 years).
(d) As a result of the Respondent’s failure to implement as per above, the annual pay progression of the Applicant was affected from the period of 2016 – 2019. The differences in such are to be calculated and paid to the Applicant.
(e) All necessary benefits are to be adjusted and backdated to date of appointment of 15 March 2016.
(f) The Respondent is ordered to comply and pay the amounts referred to in paragraph (b); (c); (d) and (e) above to the applicant by no later than 30 January 2021.
(g) No order as to costs is made.