Case Number: ELRC945-19/20GP
Applicant: NAPTOSA obo Caba, Ntsoaki Rebecca
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 20 January 2021
Arbitrator: Livhu Nengovhela
Case Number: ELRC945-19/20GP
Arbitrator: Livhu Nengovhela
Date of Award: 20 January 2021
In the MATTER between
NAPTOSA obo Caba, Ntsoaki Rebecca
Education Department of Gauteng
Union/Applicant’s representative: Judy Nair
Union/Applicant’s address: NAPTOSA
46 Restanwold drive
Telephone: 011489 1256 / 083 845 3328 /
E-mail: Judyg@naptosa.org.za /firstname.lastname@example.org
Respondent’s representative: Barney Boloang
Respondent’s address: Provincial Department of Education: Gauteng
06 Hollard Street
Telephone: 016 594 9114 / 072 350 3145/ 071 350 3145
E-mail: Barney.email@example.com Patrick.firstname.lastname@example.org.
DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration between NAPTOSA obo Caba NR, the applicant, and the Department of Education – Gauteng, the respondent. The arbitration was held under the auspices of the ELRC in terms of section 191(5)(a) of the Labour Relations LRA 66 of 1995 as amended (the LRA) and the award is issued in terms of section 138(7) of the LRA.
2. The arbitration was held virtually, through the Zoom platform. The applicant was present, and she was represented by Ms.Judy Nair, an official from NAPTOSA. The respondent was represented by Mr. Barney Boloang, the Deputy Chief Education Specialist (Labour Relations) of the respondent, and Mr Thabo Litsie, its Human Resources specialist.
3. The applicant had already submitted her bundle of documents to the ELRC Case Management Officer (CMO). The respondent did not submit any bundle of documents. Due to the nature of the dispute, I had to also consider this dispute through arguments presented by the parties.
4. At the end of the hearing, the parties agreed to submit further arguments. The applicants would submit their written arguments on or before the end of the working day of Wednesday 2 December 2020 and the respondent on 4 December 2020. With prior arrangements this periods was later extended to 15 December 2020. I received the arguments from the applicant on 2 December, the respondent’s arguments on 11 December and the rebuttal from the respondent on 15 December 2020.
5. I considered the oral arguments presented by the parties at the hearing and the written submissions made by the parties.
BACKGROUND TO THE DISPUTE
6. The applicant was employed by the respondent as head of department until her resignation in June 2014. She was again employed by the respondent in August 2014.
7. The applicant was employed as a temporary educator from August 2014 until she was appointed on permanent basis from 1 April 2015.
8. When the applicant left her employment in June 2014, she was on salary notch 117 and when she came back in August 2014, she was put on salary notch 97. The applicant stayed on salary notch 97 when she was converted into permanent employment in April 2015.
9. The applicant is aggrieved that the respondent has failed to put her on salary notch 111 when she was reappointed in August 2014, in that she was put on salary notch 97. She subsequently referred the matter to the ELRC on the basis of section 186 (2)(a) of the LRA. The matter was set-down for arbitration before me on 26 November 2020.
ISSUE TO BE DECIDED
10. I am to determine whether the respondent’s failure to place the applicant on salary notch 111 amounts to an unfair labour practice contemplated in terms of section 186(2) (a) of the LRA.
11. As it is only required that an award with brief reasons be issued, following is a summary of the relevant evidence tendered under oath:
12. The applicant argued that the respondent reappointed her incorrectly on salary notch 97 when she was reappointed on 1 August 2014. She should have been appointed on salary notch 111. It was further explained that the change from one notch to the other was 1% at the time the applicant was reappointed, and not 0.5% as suggested by the respondent. The applicant was therefore unfairly treated from her reappointment date on 1 August 2014.
13. The applicant further argued that the policy position in regard with reappointment is located in Collective Agreement 1 of 2008 which provides for the: “Determination of salaries after a break in service” (item 5.11). This need to be read together with the relevant Personnel Administrative Measures (PAM), item B.8.5.3.
14. In B.8.5.3. 1 it is provided as follows:
“The salary of an educator who is re-appointed after a break in service to a lower post level must be decreased by at least 6 notches (6%) for each post level that his/her post level was higher before the break in service than his/her current post level, provided that the principle stated in paragraph B.126.96.36.199© is applied”
15. The provisions above from the PAM document clearly showed that the respondent should have been calculated the notch from the applicant’s previous salary notch of 117 – 6 notches which become 111 notches and not 97 notches that the applicant was placed under by the respondent.
16. It was further argued that the reason advanced by the respondent that the applicant was appointed on temporary basis on 1 August 2014 was not a valid since all educators are initially appointed on temporary basis for a period of at least 3 months before they were converted to permanent basis. During this period such employees are subjected to the respondent’s performance evaluation system in terms of the Integrated Quality Management System (IQMS) and they qualify for salary progression when they complete a cycle. Only employees appointed for the first time appointees would qualify after 24 months as per Resolution 1 of 2012. In this case, the applicant was reappointed.
THE RESPONDENT’S CASE
17. It was the argument of the respondent that the applicant was properly placed on 97 notch from her original notch before her resignation that was 117. It was explained that the change in notches is 0.5%. It was further argued that this appointment was made in terms of the Constitution and other pieces of legislation related to employment. The respondent was guided by the Employment of Educators Act 76 of 1996, and the Personal Administration Measures.
18. The respondent indicated that Collective Agreement 5 of 2006 (ELRC Resolution) was the guiding document when it came to the appointment of the applicant. The provisions in this agreement were misinterpreted by the applicant since she was a temporary educator from 1 August 2014 to 31 March 2015. The applicant was only permanently employed 1 April 2015. She was therefore not eligible for pay progression instantly.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
19. The parties were differing on the appropriate policy position that regulate the determination of salaries in regard with reappointed employees. The respondent was of the view that that 2006 Collective Agreement applied. The applicant was of the view that Collective Agreement 2008 was applicable.
20. I agree with the applicant since the 2006 agreement is the earlier one and the 2008 is the much more recent / closer to 2008. Secondly the 2008 Agreement is the one that started to use salary notches and translated educator salaries into Occupational Specific Dispensation (OSD). There were no notches under the 2006 agreement, but salary levels.
21. The applicant linked the policy position with its claim that the applicant’s salary should have been pegged at notch 111 and not 97. The reason being that the PAM document quoted earlier on in this document, states that an employee who is being reappointed should be place at 6 notches below the previous salary notch before resigning. The applicant was at notch 117 when she resigned, she should therefore be placed at salary notch 111.
22. The respondent gave a thin explanation as why the applicant was placed at salary notch 97 whereas she resigned at salary notch 117. The first explanation given was the Constitution of the Republic, followed by employment law, Employment of Educators Act etc. Even if the respondent had interpreted a change in notch being equal to 0.5% and not 1%, it would not have helped why the applicant was placed at 97 salary notch.
23. The placing of the applicant at salary notch 97 equates to placing her 20 notches below her previous notch before resignation. Without any proper explanation by the respondent, this appear to be an arbitrary.
24. The respondent was of the view that the applicant erred in its claim in that the applicant only became permanent on 1 April 2015. If we take a moment and accept this version of the respondent. The applicant was still on salary notch 97 as shown in page 7 of the applicant’s bundle. In fact the applicant was still in the same notch even in July 2018.
25. In terms of section 185(b) of the LRA every employee has the right not to be subjected to unfair labour practice. Unfair labour practice in section 186(2)(a) means:
“Unfair conduct by the employer relating to the promotion, demotion, probation, or relating to the provision of benefits to an employee
26. In this case the applicant alleged that the reappointed the applicant on the incorrect salary notch 97 instead of salary notch 111. I was persuaded by the arguments put forward by the applicant. The respondent gave a thin explanation, and I therefore accept the version of the applicant.
27. In light of the above I find that, the failure by the respondent reappoint the applicant on the correct salary notch constitute an unfair labour practice in terms of section 186(2)(a) of the LRA. Due to the complicated nature of doing these calculations, I have decided to decide on the process other than even attempt to do the actual calculations myself.
28. The respondent is there required to correct the applicant’s salary notch retrospectively from 1 August 2014 calculated in terms of Collective Agreement 1 of 2008.
29. I accordingly make the following award:
30. The failure to reappoint the applicant, Ms Caba, at a correct salary notch by the respondent, The Department of Education – Gauteng Province conduct constituted an unfair labour practice.
31. The Department of Education – Gauteng Province is ordered to reappoint Ms Caba, at a salary notch 111 retrospective from 1 August 2014.
32. The amount to be paid to Ms Caba should be calculated through the persal system and such calculations should be shown and explained to the Ms Caba and her representative.
33. The amount mentioned in the preceding paragraph should be paid into Ms Caba’s nominated bank account on or before 31 March 2021.