ELRC 709-19/20EC
ELRC 709-19/20EC
Award Date:
22 February 2021
Case Number: ELRC 709-19/20EC
Province: Eastern Cape
Applicant: SADTU obo Maxwane, M
Respondent: HOD, Department of Education – Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 22 February 2021
Arbitrator: M Huber
In the arbitration between
SADTU obo Maxwane, MAPP LICANT
AND
HOD, Department of Education – Eastern Cape RESPONDENT
ARBITRATION AWARD
CASE NUMBER: ELRC 709-19/20EC
DATES OF HEARING: 18 November 2020 and 19 January 2021
DATES CLOSING ARGUMENTS RECEIVED: 26 and 28 January 2021
DATE ALL DOCUMENTS RECEIVED: 28 January 2021
DATE OF SUBMISSION OF OUTCOME
22 February 2021
NAME OF PANELLIST: M Huber
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”). It was heard virtually on the 18th November 2020 and the 19th January 2021.
2. The applicant, Ms. Nomvume Maxwane, was represented by Ms. Cordelia Royi from SADTU. The Respondent, the Department of Education (Eastern Cape) was represented by Mr T.D. Ngalwana.
3. Ms. Lulama Makhezmi and Mr. Mbulelo Ndabambi were the interpreters on the first and second days, respectively.
Issue to be decided
4. The purpose of this arbitration is to determine whether or not an unfair labour practice has been committed in terms of section 186(2)(a) of the Labour Relations Act relating to the provision of benefits to an employee. Specifically, relating to the hostel allowance that the Applicant alleges she is entitled to, which the Applicant alleges was unfairly discontinued / not renewed by the Respondent from 2017 to date.
5. If the Applicant is successful, she is seeking reinstatement of this hostel allowance with effect from January 2017 to date; payment for the hostel allowance for the years and months that the Applicant avers she rendered these services, being 2017 up to and including 2021; renewal of the contract (for the payment of the hostel allowance) or any other appropriate relief. The applicable legislative provisions are Chapter C of the Personnel Administrative Measures (“PAM”), governing “Allowances and Other Payments”, more specifically C3 “Allowances to Educators who perform supervisory duties at hostels”, C3.1.3 “Level II”.
Background information
6. The Applicant is employed as the Deputy Principal at St. Patrick’s School, situated in Ginsberg, King Williams Town. It is a special needs school, with boarding houses (“hostels”).
7. The Applicant became Deputy Principal of the School in 2013 and received a ‘hostel allowance’ for the years 2014, 2015 and 2016 but has not received the allowance thereafter.
Survey of evidence
10 The Applicant submitted a bundle of documents and the evidentiary status of each document was established. The Respondent did not submit any documentary evidence and indicated that he did not intend to submit any.
11 A summary of the evidence of the parties’ witnesses is set out below. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
8. The proceedings were digitally recorded.
Applicant’s case
9. The Applicant testified that she is the Deputy Principal at St Patrick’s Special School. She has 27 years teaching experience, and she is the Supervisor of the hostel at the school. She conducts meetings for the hostel staff, and is responsible for the attendance registers, the night duty register, the register for the children who take medication. She also teaches Grade 3. She is responsible for implementing policies in the right manner.
10. She does not currently receive a hostel allowance but received one in 2014, 2015 and 2016. She was not consulted by the Principal when the allowance was stopped. When it was stopped, she went to ask him why it had been stopped, and he informed her that they require someone to sleep in at the Hostel and that this decision was taken at a meeting that he attended in East London. He only informed her of the requirement to sleep in after the allowance was stopped. When she heard that she needed to sleep in and this is why the allowance was stopped she went to the person who was in charge of allowances for the Department and he also said that it was ‘news to him’ that there was such a requirement, and he told her to go back to the Principal, as he had called the Principal, and he said she should ask the Principal to sign the letter for her to renew her contract.
11. She then went to Miss Koto to find out about the requirement of a person who should sleep in and she also had no knowledge of that.
12. After the allowance was stopped she continued to carry out her duties as supervisor, that she had started in 2013.
13. Reference was made to the documents, whereby the document stated that ‘hostel lists will be done by Ms. Maxwane and will be distributed when the spaces were filled’, and she testified that as the hostel supervisor it is she who does the lists of students in the dormitories. She testified that she chaired the Hostel Committee meetings, and only in her absence the Principal, Mr. Hlope, chaired them.
14. The Applicant referred to the minutes of the Hostel Committee meeting in the bundle of documents and said that the reference to ill treatment of learners she explained that as the supervisor she receives the reports about ill treatment of learners, because they report this to her.
15. She read from the minutes of the meeting for the 03-12-2018, and the minute states “Supervisor did welcoming highlighting that the year was long and we work, if there is anybody was treated unfairly she is asking an apology as we work we throw mud at the other”. (Page 4.1). Ms. Maxwane said that she was the supervisor, and those were her opening remarks. She confirmed that over the period that she did not receive the allowance she continued to carry out the hostel supervisor duties that she had carried out since her appointment as Deputy Principal.
16. The Applicant explained what some of the registers were that she was responsible for – monitoring the entry and exit of staff to the hostel, making sure everyone has completed the register, register for learners who take medication / treatment, it is set by the house mother or father and she checks that no learner is defaulting on their treatment. The documents reflecting her carrying out these duties covered 2017, 2018 and 2019 as well – on pages 5 and 6 the documents reflect her signature under the designation of “supervisor”. She explained that the Hostel Policy for St Patrick’s School, page 3 of the bundle, at the end of the page states “Miss Maxwane is responsible for supervision during school hours”, and on the following page, 3.1, it states that Mr. Hlope is responsible for ‘after hours’, which means that he assist with transport after hours, but she would assist when there is an emergency and use her car to take a child who is sick.
17. She gave evidence about the Mission Statement of the school and testified about sewing skills that she was involved in providing to the learners. She testified about the Hostel Committee, from page 5 of the bundle. Mr. Hlope is the superintendent who oversees all of the school, she, Ms Maxwane, is the supervisor, number 1 on the list, number 2 is Ms. Salu, an educator, and the rest are committee members that they work with at the hostel.
18. She testified about the grievance that she lodged regarding this matter.
19. The letter that the Principal sent to the District Director in King Williams Town was referred to, motivating for Ms Maxwane to be paid a hostel allowance, dated 14 December 2014, was read into evidence by Ms Maxwane. She testified that she started in 2013 and started carrying out these duties from the first day she started, and she did this although she was not paid an allowance. She then continued carrying out these duties up until today, although she was only paid the allowance for the years 2014, 2015 and 2016.
20. She testified that in the SMT meetings she reports on what is happening at the hostel, when they provide the reports, and she said that she is the person that the house mothers and fathers report to if there is a problem. She testified that this included monitoring the duties of the house mother.
21. Under cross-examination she was asked what extra duties she performed, over and above her normal duties, to warrant this allowance, and she replied that not all schools have hostels. At schools with hostels, a person carries out their normal duty of being a teacher and also the duties related to the hostel. It is extra work.
Respondent’s case
22. The Respondent called one witness, Mr. T Hlope, the Principal of St Patrick’s School. He has been the Principal of the school since 2003.
23. Mr. Hlope explained what he was required to do as a Principal. He testified that the Deputy Principal’s responsibilities at the school include administrative duties; professional management of the school; proper instruction in terms of time-tabling; ensure accurate school financial records; and to be responsible for running the hostel.
24. He expects the Deputy to be responsible for running the hostel because when he allocates duties, the Deputy Principal is supposed to have two periods free per day, amounting to 10 periods per week, and the Deputy Principal is supposed to give more time to the running of the hostel as the person delegated to do so by the Principal.
25. He testified that the Deputy Principal has two periods per day which is enough time to be responsible for running the hostel, between the hours of 8.30 and 3pm.
26. He testified that Ms Maxwane’s duties during the day are that she is responsible for the payrolls and leave forms, which are the two things she does at school. At the hostel, she is responsible for the administrative duties, but the economic duties are run by the Principal and Financial Committee; the learners are disabled and during the hours of 8.30 to 3pm they are at school, so nothing needs to be done education-wise at the hostel between the hours of 8.30 and 3. At 3pm the learners go back to the Hostel and by that time Ms Maxwane has already gone home.
27. Mr. Hlope testified that Ms. Maxwane does not have duties outside of those hours, and that the incident she testified about the learners and sewing, she had requested on a Saturday that the learners be allowed to go to her home to finish a project they were busy with, but she was also signed onto that project to learn skills herself.
28. Mr Hlope said that the hostel allowance applies to people executing duties at the hostel, and they are not educators. He explained the different allowances. The Supervisory Allowance is given to each and every person doing a supervisory job at the hostel. If a person works at the school, then they would need to do duties at the hostel after their working hours to work at the hostel – only then would they be able to claim a supervisory allowance. If the person is not doing duties after hours then they can’t claim it.
29. Mr. Hlope testified that Ms. Maxwane is a Deputy Principal at the school and is supposed to do administrative duties at the school and the hostel. He expected Ms Maxwane to do the hostel duties during school hours, he allocated free periods for her to do this, so she has ample time to carry out the duties.
30. For a Supervisor’s allowance, an application must be made to the Department of Education if someone is doing these duties, meaning they exceed their working hours, then an application can be made for the supervisory allowance.
31. At the end of 2016 Ms. Maxwane’s supervisory allowance lapsed, and she would have needed to re-apply, or the person who was carrying out the duties needed to apply. Ms. Maxwane re-applied in 2017, she submitted the application to Mr. Hlope, but he was busy, it was the beginning of the year, and he told her to place the application on any table, and according to Ms Maxwane she had left the application there, but he did not find it. He testified that he thought that she had seen how busy he was and decided to make the application herself, or there were errors in it and she needed to correct them. He said that he thought he has to wait for her (to give him the application form).
32. In February 2016 [the witness may have referred to the incorrect year, intending to state 2017] he had attended a Principal’s Forum and allowances were explained, and he learned that a person was only entitled to a Supervisory Allowance if they resided at the hostel. If not, they could not claim. He said that this allowance is also addressed in the Hostel Policy for Public Ordinary Schools, dated 2013. He testified that at the Forum, Mr. Pukwana was acting as Head of HR for the province, and he explained that a person needed to reside at the hostel in order to claim the Supervisory Allowance – it was equal to a matron role.
33. He then went back to all of his staff members, because the issue of the allowance was a burning issue at the school, and Ms Maxwane was one of the staff members he communicated with, and he explained the basis for the allowance. Thereafter no staff members asked him about the allowance.
34. Ms Maxwane however came to see him in March and asked him if he had received her letter, and he had informed her that he had been busy, and he said that he had explained to her that after speaking to Mr Pukwana he understood the basis for the Hostel / Supervisory Allowance, whereas before he had not been clear (at the time that Ms Maxwane had joined the school), there has been no direction about this allowance, so he had asked her to apply. He realised he had made a mistake to allow her to get a Supervisory Allowance, because as a Deputy she did her duties between 8.30 and 3, and she did not deserve a supervisory allowance.
35. With regard to the time that Ms Maxwane testified that she had transported a learner to the hospital, Mr. Hlope testified that as the Superintendent if anyone wanted to transport a learner they would need his permission, and she had only informed him on the Monday of that incident – she had fetched a learner from Grey Hospital. He had been surprised because he had been in the vicinity. He had the school vehicle, and she did not have permission from him to collect the learner.
36. Mr. Hlope testified that he did not have a problem with Ms Maxwane receiving a Supervisor’s allowance, provided they follow the procedures, and he would not stoop so low as to stop Ms Maxwane from getting the allowance if she is entitled to it.. He had made a mistake recommending it for her in 2016.
37. Mr. Hlope agreed under cross-examination that Ms Maxwane continued doing hostel duties after her allowance stopped, and indicated that “no-one is disputing that”, and he said that the reason why her allowance was stopped in 2017, even though she was doing the same duties was because Mr. Pukwana had clarified when an allowance should be granted, and prior to that, he had not been familiar with this. Mr. Hlope said that because Ms Maxwane was conducting the duties within the scope of her work, she did not qualify for a supervisory allowance. He has the right to assign duties to Ms Maxwane and he excused her from duties in the school so that she could execute her responsibility for the running of the hostel, during school hours. In order to obtain the allowance, a person needs to apply, and it lasts for a year and at the end of the year it lapses. He said that the roles and responsibilities are set out in the Policy, and their Policy said that she is responsible for the duties during the day. Mr. Hlope testified that the allowance is for someone who has exhausted their duties at the school and the person has been delegated extra work after s/he has exceeded his or her prescribed working hours – it is then that the person gets an allowance.
38. In response to a question under cross-examination Mr. Hlope said that he had realised he had made a mistake [regarding the hostel allowance for Ms Maxwane] and so in 2017 he decided to ‘do things according to the book and according to the law”.
Analysis of evidence and argument
39. In assessing the witnesses’ evidence of both the Applicant and the Respondent, it is not disputed that Ms Maxwane is responsible for ‘running the hostel’ – Mr. Hlope confirmed this on a few occasions in his testimony, and Ms Maxwane testified in detail, with reference to documentary evidence that was accepted by Mr. Hlope, to show the numerous duties that she carries out at the Hostel, and which she has done since she was appointed in 2013.
40. The crux of this dispute is whether Ms. Maxwane is required to ‘reside in the hostel’ and / or perform the hostel duties in addition to the duties that she performs during her working hours of 8.30am to 3pm. The Respondent’s basis for arguing that the Applicant is not entitled to a hostel allowance is that during 2017 whilst attending some form of training / development, he was informed by someone by the name of Mr. Pukwana, who he testified was the Acting Head of HR at the time, that a person must reside at the hostel in order to qualify for the hostel allowance, and / or their hostel duties should be in addition to their normal daily duties.
41. The Respondent testified that this was supported by the Eastern Cape Province Hostel Policy for Public Ordinary Schools, dated 23rd February 2013, together with Mr. Hlope’s evidence that he allocates two free periods to Ms. Maxwane each day which is ample time to allow her to fulfil the hostel supervisory duties during her working day, and she does not reside in the hostel, therefore he realised that he had been wrong to believe she qualified for a hostel allowance previously, and he indicated that he informed her and the remaining staff members of this.
42. In terms of the Respondent’s evidence, the only thing that had changed, to disqualify the Applicant from receiving the allowance, was not her duties, which she continued carrying out, but rather Mr. Hlope’s new understanding that she would only qualify for the allowance if she resided in the hostel and / or carried out the hostel duties in addition to her daily duties (outside of the hours of 8.30am to 3pm).
43. Curiously, Mr. Hlope testified that in 2017 Ms. Maxwane had come to his office to drop off her application form for her Hostel Allowance, and he had been busy, so he looked for it afterwards, and was unable to find it, so he assumed that she had taken it away to give back to him on another occasion, or that she had made errors and taken it away to correct the errors.
44. The Respondent did not provide any further evidence to verify or corroborate what amounts to hearsay evidence on what Mr. Pukwana allegedly informed Mr. Hlope about the hostel allowance. No evidence was provided on the programme or development training he attended, proof of attendance, some confirmation of who Mr. Pukwana is or was, and his role at the time, nor proof in any other manner, other than Mr. Hlope’s fairly vague evidence on what Mr. Pukwana had informed him. Mr. Pukwana may have been incorrect, may not have been an expert in this type of allowance; Mr. Hlope may have misunderstood what he was told, taken it out of context – all of these possibilities exist, and cannot be tested, because this evidence was hearsay, and extremely vague. It is therefore unreliable and is not accepted as admissible evidence in this forum.
45. In addition, Mr. Hlope’s own conduct, as testified by him, after discovering this important new information, is inconsistent with this new-found information. He testified that he had discovered that Ms. Maxwane did not in fact qualify for the allowance. However, if he had in fact discovered this, and informed Ms. Maxwane of it, then he would have expected her not to submit an application in 2017, or, if he was busy, he would have not testified, as he did, that he did not submit the application for her in 2017 because he could not find it, he would rather have testified that he addressed this with her, and informed her that she should not submit the application, he would not be supporting it or forwarding it to the Department, based on the new information that he had relating to qualifying for the allowance.
46. This testimony by Mr. Hlope was therefore consistent with the Applicant’s version that he was not happy to support her application, based on reasons other than his belief that she did not qualify for the allowance. I will not speculate on the reasons for Mr. Hlope not wanting to forward a motivation for the hostel allowance to the Department in 2017, but based on his own testimony, it is more probable that these reasons were unrelated to the alleged information provided by Mr. Pukwana, or the Eastern Cape Province Hostel Policy for Public Ordinary Schools.
47. Mr. Hlope’s testified, to support his view that Ms. Maxwane did not in fact qualify for the hostel allowance, on the Eastern Cape Province, Hostel Policy for Public Ordinary Schools dated 23rd February 2013 (“the Provincial Hostel Policy”), which the Respondent brought into evidence through the testimony of Mr. Hlope. The Respondent did not provide this document to the Applicant or the Council at the outset of the proceedings, nor did they provide it at the time that they submitted the evidence, nonetheless Mr. Hlope was permitted to refer to it, and the Panellist shared the document on the screen for the parties via the Zoom conference facility.
48. The provisions Mr. Hlope referred to from the Provincial Hostel Policy to support his version that Ms. Maxwane is required to reside on the premises in order to qualify for a hostel / supervisory allowance were the following:
2.4 PERSONNEL
1. School Hostel Personnel
(1) The Hostel personnel will be determined and provided through the Post Provisioning Norms (PPN) and School post establishment as determined by the Department of Education.
(2) The following personnel will be required in a school hostel, subject to norms set through PPN:
(a) Superintendent /Supervisor Level 1 of the hostel who oversees the overall management of the hostel on behalf of the Hostel Management Committee and also be accountable for proper bookkeeping of income and expenditure as per the Public Finance Management Act, Treasury Regulations and Personnel Administrative Measures.
(b) Principal/ Senior Housekeeping Supervisor/ Supervisor Level 2 residing at the hostel, who is responsible for the day to day running of the hostel complex.
(c) Supervisors Level 3, preferably educators, who supervise hostel boarders.
………….
2. Post Establishment
(1) Post Establishment will be guided by the personnel requirements proposed in 2.4 above and the process of PPN determination.
(2) Annexure B attached provides the envisaged staffing to be considered.
3. Additional Supervisory Duties
(1) The PAM document provides for the additional personnel needed for learner social wellbeing, extra-curricular and curricular work. Such personnel may include educators or non-educators.
4. Allowance
(1) Allowance payable to personnel doing supervisory duties in 2.4.3(1) above will be determined according to Personnel Administrative Measures.
5. Roles and Responsibilities of hostel supervisors
(1) Hostel Supervisors will perform their duties as stipulated in Chapter D of the Personnel Administration Measures document. The roles cover four areas, which are general, educational, economic and administrative work.
………………….
and
CHAPTER 4
4. MANAGEMENT, ADMINISTRATION, GOVERNANCE AND CONCLUSION
4.1. Management and Administration of school hostels
(1) The principal and the superintendent must establish the Hostel Management Committee that will be responsible for the administration and control of the hostel.
(2) The responsibility for the day to day efficient management is the responsibility of the Superintendent who serves as liaison between the Hostel Management Committee on the one hand and the principal and School Governing Body on the other hand.
4.2. Governance
(1) The School Governing Body is responsible for the governance of the hostel in collaboration with the Hostel Management Committee, Principal and Superintendent.
4.3. The management hierarchy is composed of:
Position Duty/Responsibility Appointment
The School Governing Body Governance of school and hostel 3 years
The Hostel Man Committee Management of hostel 3 years
Supervisor Level 1 (Superintendent) Overall daily control and management of hostel including financial management and management of staff Full time. Reside in hostel
Supervisor Level 2 (Senior Housekeeping Supervisor- residing in hostel The well-being of boarders and the supervision of the kitchen, laundry, cleaning services (dormitories) Permanently appointed. Reside in hostel
Supervisor Level 3 (Duty Staff) Well-being of learners, supervise during study, meals, play & excursions etc. Appointed annually
49. Annexure A of the Provincial Hostel Policy, which was also referred to in Mr. Hlope’s testimony, provides as follows:
50. The Provincial Hostel Policy envisages the full time appointment of the supervisors levels 1 and 2 who must both reside in the hostel (see the table on page 12), and in Annexure A, levels 1, 2 and 3, all of whom should reside in the hostel. It is important to highlight that in Annexure A the superintendent, which Mr. Hlope has identified as being the role he fulfils, should also reside in the Hostel. Mr. Hlope does not reside in the hostel, and fulfils the role of superintendent, or supervisor level 1. It is unclear if Mr. Hlope receives an allowance for his superintendent / supervisory role, however, if he does, then on his own evidence and argument, he would not be eligible for this allowance, as he would be required to reside in the Hostel in order to qualify for it.
51. Nonetheless, the Provincial Hostel Policy refers to certain full time permanent roles, which would require residence at the hostel. The evidence from both parties regarding the Supervisory role and allowance that Ms. Maxwane is claiming she carries out, indicates that this allowance is paid monthly and for a year, which then needs to be renewed if the duties are still being carried out. It is therefore not a permanent full time position, as envisaged in the Hostel Policy’s roles for supervisory staff residing in the hostel.
52. The Provincial Hostel Policy provides for the following, which I accept are additional to the full-time, residential supervisory positions within the hostel:
“3. Additional Supervisory Duties
(1) The PAM document provides for the additional personnel needed for learner social wellbeing, extra-curricular and curricular work. Such personnel may include educators or non-educators.
4. Allowance
(1) Allowance payable to personnel doing supervisory duties in 2.4.3(1) above will be determined according to Personnel Administrative Measures.”
53. I accept the Applicant’s submission that this is in fact the part of the Provincial Hostel Policy that is applicable to Ms Maxwane, and that there is no requirement that in order to qualify for this allowance, the person must reside in the hostel. In addition, there is no evidence whatsoever that this allowance is granted only to persons performing supervisory duties over and above their other ‘daily duties’ (and therefore outside of normal working hours) – the evidence that Mr. Hlope submitted to substantiate this is unreliable, in the form of uncorroborated and vague hearsay evidence (information received from Mr. Pukwana), whereas the provisions of the Personnel Administrative Measures are clear and legally binding.
54. The relevant provisions applicable to the Applicant in terms of the Personnel Administrative Measures (“PAM”) are (my emphasis):
“C.3 ALLOWANCE TO EDUCATORS WHO PERFORM SUPERVISORY DUTIES
AT HOSTELS
C.3.1 The level of supervisory duties at hostels
There are, at most, three levels of work, but it is not essential that all three levels have to be utilised in hostels. The levels and the functions attached to them are as follows:
………….
C.3.1.3 Level II
Normally every hostel has a supervisor on level II.
C.3.1.3.1 General
Practically implements the educational, economic and administrative policy as laid down.
C.3.1.3.2 Educational
Responsible for the spirit and discipline in the hostel in respect of the welfare, study and recreation of boarders.
C.3.1.3.3 Economic
Responsible for the controlling of supplies, accounts, bookkeeping, registers, the obtaining of tenders and all other duties connected with the post.
C.3.1.3.4 Administrative
Responsible for all administrative duties necessary for the efficient running of a hostel.
This includes inter alia, the following:
(a) Recommendations in respect of the appointment of staff.
(b) Periodic reports and recommendations in respect of buildings, equipment, grounds, etc.
(c) Management of staff.
(d) Handling of applications for admission of boarders.
(e) Collection of boarding fees.”
55. The evidence provided by the Applicant was that she is responsible for the daily running of the hostel, she is the appointed supervisor, this is reflected in the documents submitted in the documentary evidence, and the evidence submitted by her shows that she broadly fulfils the functions as described above, specifically that she does not carry overall responsibility for these functions, but her role is the practical implementation / monitoring that the functions are being carried out properly – as per the policies / requirements that she is aware of / informed of etc. The distinction between Level I (supervisory duties in a hostel), which the Principal, Mr. Hlope allegedly carries out, and Level II, which Ms. Maxwane carries out, is evident when considering the duties that Mr. Hlope is required to fulfil as Level I, to qualify for the relevant allowance (my emphasis to illustrate the duties of the Level I when compared with those of Level II):
“C.3.1.2 Level 1
Normally the head of the educational institution (e.g. principal of the school) is classified under level 1 and he/she is in overall control of all the hostels.
C.3.1.2.1 General
(a) Responsible for every aspect of the hostel's activities in accordance with the provincial department's policy.
(b) Determines policy in respect of the educational, economic and administrative matters within the framework as prescribed by the department concerned.
(c) Exercises the necessary control to ensure that the policy is implemented.
C.3.1.2.2 Educational
Exercises overall control in respect of the discipline and spirit in the hostel, including
the welfare, study and recreation of boarders.
C.3.1.2.3 Economic
Controls the economic function in accordance with the policy of the department and bears the final responsibility. Responsibility is thus accepted for the compilation of the budget, the obtaining of certain tenders and the control and management of all supplies to ensure the most efficient and economic utilisation thereof.
C.3.1.2.4 Administrative
Responsible for all administrative duties which are necessary for the efficient running of a hostel. This includes, inter alia, and where applicable, the following:
(a) Recommendations in respect of the appointment of staff.
(b) Periodic reports and recommendations in respect of buildings, equipment, etc.
(c) General management of staff.
(d) Handling of applications for admission of boarders.
(e) Collection of boarding fees.
(f) Compilation of duty sheets for staff.”
56. As evident from both the duties required for claiming of the allowance for supervising duties at a hostel at Level I and Level II, there is no requirement in the legislation that the supervisory duties required for Level I, II or in fact Level III include residing in the Hostel, nor that they should carry out these functions ‘outside of their normal working hours’.
57. When comparing the extent of the duties allocated to a Level I, which show that the Principal is responsible for the bulk of the functions relating to the Hostel, and the Level II supervision is simply responsible for the practical implementation of these functions, I accept that the Deputy Principal, Ms Maxwane, fulfils the functions of running the hostel in a manner that is contemplated in the PAM, C3, at Level II. She therefore qualifies for the allowance applicable for a Level II classification. It is possible that she is in fact carrying out some functions listed under Supervisor Level I, however this is not within the ambit of this arbitration hearing.
58. The legal status of the PAM provisions is explained as follows :
“A.1 SCOPE OF APPLICABILITY
A.1.1 This PAM is applicable to all educators as defined in the EEA.
A.1.2 There may, in respect of the matters regulated in this PAM, be no deviation from the prescribed measures:
…………………………..”
59. The Provincial Hostel Policy document provided as evidence to prove the Respondent’s version that the Applicant does not qualify for the supervisory hostel allowance in terms of the PAM provisions is itself subject to, and based on, the provisions of PAM, and even if the legislation is amended, in a way that differs from the Provincial Hostel Policy provisions, then the legislative provisions of PAM would be applicable, and not those of the Provincial Hostel Policy.
60. As per the analysis above, the Provincial Hostel Policy does not in fact prescribe that the Applicant should reside on the premises in order to qualify for the supervisor / hostel allowance, and in fact refers to the provisions of PAM in order to determine if the Applicant should qualify for a supervisor allowance, or not.
61. In conclusion, I find that there is no evidence to support the Respondent’s argument that Ms. Maxwane should reside at the hostel to qualify for the Hostel Allowance and/or that the duties relating to the hostel should be performed in addition to the school duties and out of working hours. Ms. Maxwane is performing duties that involve the ‘running of the hostel’, and she was paid a supervisor / hostel allowance for this through the request submitted to the Department by the Principal , for the years 2014, 2015 and 2016, her duties have not changed, she has continued to fulfil these duties, and there is no basis upon which to find that she is now not entitled to receive this allowance.
62. The undisputed evidence shows that Ms. Maxwane has carried out these same duties from the date of her appointment, the Principal, Mr. Hlope wrote to the Department to request and motivate that this allowance be paid to her , and it was paid to her. The evidence supports the Applicant’s claim that she is entitled to this benefit, and it has been unfairly withheld from her through the actions of Mr. Hlope in his role as Principal of the school.
63. The Principal did not submit these motivations / letters for the years 2017, 2018, 2019, 2020 and 2021, and the Applicant did not receive this allowance over this period, which she was entitled to, and remains entitled to, while she carries out the same functions that she is currently carrying out in running the hostel during her normal working hours.
Calculation of Hostel Allowance and process for payment
64. The provisions of PAM set out the basis for calculating the Allowance due and payable to the Applicant for the supervisory duties she performed at the hostel. The Allowance is paid in the form of a non-pensionable allowance based on a specific percentage of the basic payment (salary position plus any pensionable allowance) of the educator . The percentage is based on the hostel enrolment numbers for each year for the specific Supervisor Level Allowance. I did not receive evidence verified by both parties of the hostel enrolment numbers in each year, and in addition, St Patrick’s is a school for children with special needs / disabilities, and it is possible that this would affect the weighting allocated to the School for the purposes of determining the Department’s calculation of enrolments (i.e. this might be increased based on the fact that the children are with disabilities), with PAM providing as follows:
“C.3.2.2 Where, in terms of approved educational policy in respect of post-provision scales, weighting on the actual pupil numbers based on their disabilities, occurs at specific institutions in order to determine the number of posts, a corresponding weighting of the actual hostel enrolment is made with a view to determining the number of hostel enrolments for the purposes of paragraph C.3.2.1.”
65. It is therefore not possible to determine the precise percentage that should be applied to the Applicant for the purposes of calculating this allowance due and payable to her. In addition, whilst the Applicant provided me with salary advices for 2016 (showing payment of the Hostel Allowance), and 2017 through to 2020, showing that the allowance was not paid, the salary advices are from different months of the years, and the exact salary for the Applicant for each year, given increases that may have been applied / not applied, is unclear.
Finding
66. Based on the above, the Applicant qualified for, was entitled to, and should have received an allowance for performing supervisory duties at a hostel / hostel allowance (for Supervisor Level II in terms of PAM) for the years that she did not receive this allowance but carried out these duties, being 2017, 2018, 2019 and 2020. The Applicant is further entitled to this allowance for 2021, for the period over which she has already, and continues to carry out the functions she currently carries out for the Hostel at St Patrick’s School.
67. The conduct of the Respondent was unfair, through failing to / omitting to fulfil the actions required to secure this allowance (“Hostel Allowance”) for the Applicant, in the form of a written motivation from the Principal, Mr. Hlope, to the District Director at the King Williamstown office of the Department of Education, setting out the motivation for the allowance and the number of learners residing in the hostel, for each year that the Applicant fulfilled this Supervisor function from 2017 to 28 February 2021, inclusive.
68. It is trite that a benefit which an employee is entitled as of right, either in terms of a contract of employment, a collective agreement or in terms of legislation [such as an allowance for carrying out supervisory duties in a hostel as per the provisions of PAM referred to above], falls squarely within the definition of ‘benefit’ in terms of section 198(2)(a) of the LRA , although this was also not disputed by the parties.
69. This benefit was one that the Applicant was entitled to, and unfairly deprived of, without a valid reason and without due process being followed to justify and explain the reason for this benefit being denied to the Applicant. The Respondent’s evidence was contradictory around the initial reason for not submitting the 2017 written motivation to the District Office (i.e., that he was busy, did not find it, and thought that the Applicant had taken the application away with her; and the further explanation that the Principal had found out that the Applicant was not entitled to the allowance) and points towards a different, and unfair, reason, why the Respondent chose to act the way it did regarding this hostel allowance.
70. The Applicant has therefore been unfairly deprived of a benefit to which she was entitled, and the remedy for this unfair labour practice is the reinstatement of this benefit from the date that that the benefit ceased, for the full period that the Applicant carried out the hostel supervisory duties and was entitled to this benefit, being 1 January 2017 to 28 February 2021.
Award
71. The Applicant has discharged the onus to show that the Respondent committed an unfair labour practice in relation to the provision of a benefit in the form of an allowance for performing supervisory duties at a hostel to which the Applicant was entitled for the period January 2017 through to 28 February 2021.
72. The Respondent should make payment to the Applicant, Mrs. Nomvume Maxwane, Persal number 52090779, of the amounts due to Mrs. Maxwane for carrying out her duties at supervisory level II (in accordance with PAM C.3.1.3) entitling her to payment of a Hostel Allowance for the period January 2017 through to and including 28 February 2021, calculated in accordance with the applicable provisions of PAM, being C.3.2 and C.3.3, by no later than Friday 30th April 2021, via EFT directly into Mrs Maxwane’s bank account [used for the payment of her monthly remuneration by the Respondent], failing which it shall earn interest in terms of section 143(2) of the LRA.
73. No order is made in respect of costs.
SIGNED AT MAKHANDA ON THIS 22nd DAY OF FEBRUARY 2021.
M HUBER
Province: Eastern Cape
Applicant: SADTU obo Maxwane, M
Respondent: HOD, Department of Education – Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 22 February 2021
Arbitrator: M Huber
In the arbitration between
SADTU obo Maxwane, MAPP LICANT
AND
HOD, Department of Education – Eastern Cape RESPONDENT
ARBITRATION AWARD
CASE NUMBER: ELRC 709-19/20EC
DATES OF HEARING: 18 November 2020 and 19 January 2021
DATES CLOSING ARGUMENTS RECEIVED: 26 and 28 January 2021
DATE ALL DOCUMENTS RECEIVED: 28 January 2021
DATE OF SUBMISSION OF OUTCOME
22 February 2021
NAME OF PANELLIST: M Huber
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”). It was heard virtually on the 18th November 2020 and the 19th January 2021.
2. The applicant, Ms. Nomvume Maxwane, was represented by Ms. Cordelia Royi from SADTU. The Respondent, the Department of Education (Eastern Cape) was represented by Mr T.D. Ngalwana.
3. Ms. Lulama Makhezmi and Mr. Mbulelo Ndabambi were the interpreters on the first and second days, respectively.
Issue to be decided
4. The purpose of this arbitration is to determine whether or not an unfair labour practice has been committed in terms of section 186(2)(a) of the Labour Relations Act relating to the provision of benefits to an employee. Specifically, relating to the hostel allowance that the Applicant alleges she is entitled to, which the Applicant alleges was unfairly discontinued / not renewed by the Respondent from 2017 to date.
5. If the Applicant is successful, she is seeking reinstatement of this hostel allowance with effect from January 2017 to date; payment for the hostel allowance for the years and months that the Applicant avers she rendered these services, being 2017 up to and including 2021; renewal of the contract (for the payment of the hostel allowance) or any other appropriate relief. The applicable legislative provisions are Chapter C of the Personnel Administrative Measures (“PAM”), governing “Allowances and Other Payments”, more specifically C3 “Allowances to Educators who perform supervisory duties at hostels”, C3.1.3 “Level II”.
Background information
6. The Applicant is employed as the Deputy Principal at St. Patrick’s School, situated in Ginsberg, King Williams Town. It is a special needs school, with boarding houses (“hostels”).
7. The Applicant became Deputy Principal of the School in 2013 and received a ‘hostel allowance’ for the years 2014, 2015 and 2016 but has not received the allowance thereafter.
Survey of evidence
10 The Applicant submitted a bundle of documents and the evidentiary status of each document was established. The Respondent did not submit any documentary evidence and indicated that he did not intend to submit any.
11 A summary of the evidence of the parties’ witnesses is set out below. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
8. The proceedings were digitally recorded.
Applicant’s case
9. The Applicant testified that she is the Deputy Principal at St Patrick’s Special School. She has 27 years teaching experience, and she is the Supervisor of the hostel at the school. She conducts meetings for the hostel staff, and is responsible for the attendance registers, the night duty register, the register for the children who take medication. She also teaches Grade 3. She is responsible for implementing policies in the right manner.
10. She does not currently receive a hostel allowance but received one in 2014, 2015 and 2016. She was not consulted by the Principal when the allowance was stopped. When it was stopped, she went to ask him why it had been stopped, and he informed her that they require someone to sleep in at the Hostel and that this decision was taken at a meeting that he attended in East London. He only informed her of the requirement to sleep in after the allowance was stopped. When she heard that she needed to sleep in and this is why the allowance was stopped she went to the person who was in charge of allowances for the Department and he also said that it was ‘news to him’ that there was such a requirement, and he told her to go back to the Principal, as he had called the Principal, and he said she should ask the Principal to sign the letter for her to renew her contract.
11. She then went to Miss Koto to find out about the requirement of a person who should sleep in and she also had no knowledge of that.
12. After the allowance was stopped she continued to carry out her duties as supervisor, that she had started in 2013.
13. Reference was made to the documents, whereby the document stated that ‘hostel lists will be done by Ms. Maxwane and will be distributed when the spaces were filled’, and she testified that as the hostel supervisor it is she who does the lists of students in the dormitories. She testified that she chaired the Hostel Committee meetings, and only in her absence the Principal, Mr. Hlope, chaired them.
14. The Applicant referred to the minutes of the Hostel Committee meeting in the bundle of documents and said that the reference to ill treatment of learners she explained that as the supervisor she receives the reports about ill treatment of learners, because they report this to her.
15. She read from the minutes of the meeting for the 03-12-2018, and the minute states “Supervisor did welcoming highlighting that the year was long and we work, if there is anybody was treated unfairly she is asking an apology as we work we throw mud at the other”. (Page 4.1). Ms. Maxwane said that she was the supervisor, and those were her opening remarks. She confirmed that over the period that she did not receive the allowance she continued to carry out the hostel supervisor duties that she had carried out since her appointment as Deputy Principal.
16. The Applicant explained what some of the registers were that she was responsible for – monitoring the entry and exit of staff to the hostel, making sure everyone has completed the register, register for learners who take medication / treatment, it is set by the house mother or father and she checks that no learner is defaulting on their treatment. The documents reflecting her carrying out these duties covered 2017, 2018 and 2019 as well – on pages 5 and 6 the documents reflect her signature under the designation of “supervisor”. She explained that the Hostel Policy for St Patrick’s School, page 3 of the bundle, at the end of the page states “Miss Maxwane is responsible for supervision during school hours”, and on the following page, 3.1, it states that Mr. Hlope is responsible for ‘after hours’, which means that he assist with transport after hours, but she would assist when there is an emergency and use her car to take a child who is sick.
17. She gave evidence about the Mission Statement of the school and testified about sewing skills that she was involved in providing to the learners. She testified about the Hostel Committee, from page 5 of the bundle. Mr. Hlope is the superintendent who oversees all of the school, she, Ms Maxwane, is the supervisor, number 1 on the list, number 2 is Ms. Salu, an educator, and the rest are committee members that they work with at the hostel.
18. She testified about the grievance that she lodged regarding this matter.
19. The letter that the Principal sent to the District Director in King Williams Town was referred to, motivating for Ms Maxwane to be paid a hostel allowance, dated 14 December 2014, was read into evidence by Ms Maxwane. She testified that she started in 2013 and started carrying out these duties from the first day she started, and she did this although she was not paid an allowance. She then continued carrying out these duties up until today, although she was only paid the allowance for the years 2014, 2015 and 2016.
20. She testified that in the SMT meetings she reports on what is happening at the hostel, when they provide the reports, and she said that she is the person that the house mothers and fathers report to if there is a problem. She testified that this included monitoring the duties of the house mother.
21. Under cross-examination she was asked what extra duties she performed, over and above her normal duties, to warrant this allowance, and she replied that not all schools have hostels. At schools with hostels, a person carries out their normal duty of being a teacher and also the duties related to the hostel. It is extra work.
Respondent’s case
22. The Respondent called one witness, Mr. T Hlope, the Principal of St Patrick’s School. He has been the Principal of the school since 2003.
23. Mr. Hlope explained what he was required to do as a Principal. He testified that the Deputy Principal’s responsibilities at the school include administrative duties; professional management of the school; proper instruction in terms of time-tabling; ensure accurate school financial records; and to be responsible for running the hostel.
24. He expects the Deputy to be responsible for running the hostel because when he allocates duties, the Deputy Principal is supposed to have two periods free per day, amounting to 10 periods per week, and the Deputy Principal is supposed to give more time to the running of the hostel as the person delegated to do so by the Principal.
25. He testified that the Deputy Principal has two periods per day which is enough time to be responsible for running the hostel, between the hours of 8.30 and 3pm.
26. He testified that Ms Maxwane’s duties during the day are that she is responsible for the payrolls and leave forms, which are the two things she does at school. At the hostel, she is responsible for the administrative duties, but the economic duties are run by the Principal and Financial Committee; the learners are disabled and during the hours of 8.30 to 3pm they are at school, so nothing needs to be done education-wise at the hostel between the hours of 8.30 and 3. At 3pm the learners go back to the Hostel and by that time Ms Maxwane has already gone home.
27. Mr. Hlope testified that Ms. Maxwane does not have duties outside of those hours, and that the incident she testified about the learners and sewing, she had requested on a Saturday that the learners be allowed to go to her home to finish a project they were busy with, but she was also signed onto that project to learn skills herself.
28. Mr Hlope said that the hostel allowance applies to people executing duties at the hostel, and they are not educators. He explained the different allowances. The Supervisory Allowance is given to each and every person doing a supervisory job at the hostel. If a person works at the school, then they would need to do duties at the hostel after their working hours to work at the hostel – only then would they be able to claim a supervisory allowance. If the person is not doing duties after hours then they can’t claim it.
29. Mr. Hlope testified that Ms. Maxwane is a Deputy Principal at the school and is supposed to do administrative duties at the school and the hostel. He expected Ms Maxwane to do the hostel duties during school hours, he allocated free periods for her to do this, so she has ample time to carry out the duties.
30. For a Supervisor’s allowance, an application must be made to the Department of Education if someone is doing these duties, meaning they exceed their working hours, then an application can be made for the supervisory allowance.
31. At the end of 2016 Ms. Maxwane’s supervisory allowance lapsed, and she would have needed to re-apply, or the person who was carrying out the duties needed to apply. Ms. Maxwane re-applied in 2017, she submitted the application to Mr. Hlope, but he was busy, it was the beginning of the year, and he told her to place the application on any table, and according to Ms Maxwane she had left the application there, but he did not find it. He testified that he thought that she had seen how busy he was and decided to make the application herself, or there were errors in it and she needed to correct them. He said that he thought he has to wait for her (to give him the application form).
32. In February 2016 [the witness may have referred to the incorrect year, intending to state 2017] he had attended a Principal’s Forum and allowances were explained, and he learned that a person was only entitled to a Supervisory Allowance if they resided at the hostel. If not, they could not claim. He said that this allowance is also addressed in the Hostel Policy for Public Ordinary Schools, dated 2013. He testified that at the Forum, Mr. Pukwana was acting as Head of HR for the province, and he explained that a person needed to reside at the hostel in order to claim the Supervisory Allowance – it was equal to a matron role.
33. He then went back to all of his staff members, because the issue of the allowance was a burning issue at the school, and Ms Maxwane was one of the staff members he communicated with, and he explained the basis for the allowance. Thereafter no staff members asked him about the allowance.
34. Ms Maxwane however came to see him in March and asked him if he had received her letter, and he had informed her that he had been busy, and he said that he had explained to her that after speaking to Mr Pukwana he understood the basis for the Hostel / Supervisory Allowance, whereas before he had not been clear (at the time that Ms Maxwane had joined the school), there has been no direction about this allowance, so he had asked her to apply. He realised he had made a mistake to allow her to get a Supervisory Allowance, because as a Deputy she did her duties between 8.30 and 3, and she did not deserve a supervisory allowance.
35. With regard to the time that Ms Maxwane testified that she had transported a learner to the hospital, Mr. Hlope testified that as the Superintendent if anyone wanted to transport a learner they would need his permission, and she had only informed him on the Monday of that incident – she had fetched a learner from Grey Hospital. He had been surprised because he had been in the vicinity. He had the school vehicle, and she did not have permission from him to collect the learner.
36. Mr. Hlope testified that he did not have a problem with Ms Maxwane receiving a Supervisor’s allowance, provided they follow the procedures, and he would not stoop so low as to stop Ms Maxwane from getting the allowance if she is entitled to it.. He had made a mistake recommending it for her in 2016.
37. Mr. Hlope agreed under cross-examination that Ms Maxwane continued doing hostel duties after her allowance stopped, and indicated that “no-one is disputing that”, and he said that the reason why her allowance was stopped in 2017, even though she was doing the same duties was because Mr. Pukwana had clarified when an allowance should be granted, and prior to that, he had not been familiar with this. Mr. Hlope said that because Ms Maxwane was conducting the duties within the scope of her work, she did not qualify for a supervisory allowance. He has the right to assign duties to Ms Maxwane and he excused her from duties in the school so that she could execute her responsibility for the running of the hostel, during school hours. In order to obtain the allowance, a person needs to apply, and it lasts for a year and at the end of the year it lapses. He said that the roles and responsibilities are set out in the Policy, and their Policy said that she is responsible for the duties during the day. Mr. Hlope testified that the allowance is for someone who has exhausted their duties at the school and the person has been delegated extra work after s/he has exceeded his or her prescribed working hours – it is then that the person gets an allowance.
38. In response to a question under cross-examination Mr. Hlope said that he had realised he had made a mistake [regarding the hostel allowance for Ms Maxwane] and so in 2017 he decided to ‘do things according to the book and according to the law”.
Analysis of evidence and argument
39. In assessing the witnesses’ evidence of both the Applicant and the Respondent, it is not disputed that Ms Maxwane is responsible for ‘running the hostel’ – Mr. Hlope confirmed this on a few occasions in his testimony, and Ms Maxwane testified in detail, with reference to documentary evidence that was accepted by Mr. Hlope, to show the numerous duties that she carries out at the Hostel, and which she has done since she was appointed in 2013.
40. The crux of this dispute is whether Ms. Maxwane is required to ‘reside in the hostel’ and / or perform the hostel duties in addition to the duties that she performs during her working hours of 8.30am to 3pm. The Respondent’s basis for arguing that the Applicant is not entitled to a hostel allowance is that during 2017 whilst attending some form of training / development, he was informed by someone by the name of Mr. Pukwana, who he testified was the Acting Head of HR at the time, that a person must reside at the hostel in order to qualify for the hostel allowance, and / or their hostel duties should be in addition to their normal daily duties.
41. The Respondent testified that this was supported by the Eastern Cape Province Hostel Policy for Public Ordinary Schools, dated 23rd February 2013, together with Mr. Hlope’s evidence that he allocates two free periods to Ms. Maxwane each day which is ample time to allow her to fulfil the hostel supervisory duties during her working day, and she does not reside in the hostel, therefore he realised that he had been wrong to believe she qualified for a hostel allowance previously, and he indicated that he informed her and the remaining staff members of this.
42. In terms of the Respondent’s evidence, the only thing that had changed, to disqualify the Applicant from receiving the allowance, was not her duties, which she continued carrying out, but rather Mr. Hlope’s new understanding that she would only qualify for the allowance if she resided in the hostel and / or carried out the hostel duties in addition to her daily duties (outside of the hours of 8.30am to 3pm).
43. Curiously, Mr. Hlope testified that in 2017 Ms. Maxwane had come to his office to drop off her application form for her Hostel Allowance, and he had been busy, so he looked for it afterwards, and was unable to find it, so he assumed that she had taken it away to give back to him on another occasion, or that she had made errors and taken it away to correct the errors.
44. The Respondent did not provide any further evidence to verify or corroborate what amounts to hearsay evidence on what Mr. Pukwana allegedly informed Mr. Hlope about the hostel allowance. No evidence was provided on the programme or development training he attended, proof of attendance, some confirmation of who Mr. Pukwana is or was, and his role at the time, nor proof in any other manner, other than Mr. Hlope’s fairly vague evidence on what Mr. Pukwana had informed him. Mr. Pukwana may have been incorrect, may not have been an expert in this type of allowance; Mr. Hlope may have misunderstood what he was told, taken it out of context – all of these possibilities exist, and cannot be tested, because this evidence was hearsay, and extremely vague. It is therefore unreliable and is not accepted as admissible evidence in this forum.
45. In addition, Mr. Hlope’s own conduct, as testified by him, after discovering this important new information, is inconsistent with this new-found information. He testified that he had discovered that Ms. Maxwane did not in fact qualify for the allowance. However, if he had in fact discovered this, and informed Ms. Maxwane of it, then he would have expected her not to submit an application in 2017, or, if he was busy, he would have not testified, as he did, that he did not submit the application for her in 2017 because he could not find it, he would rather have testified that he addressed this with her, and informed her that she should not submit the application, he would not be supporting it or forwarding it to the Department, based on the new information that he had relating to qualifying for the allowance.
46. This testimony by Mr. Hlope was therefore consistent with the Applicant’s version that he was not happy to support her application, based on reasons other than his belief that she did not qualify for the allowance. I will not speculate on the reasons for Mr. Hlope not wanting to forward a motivation for the hostel allowance to the Department in 2017, but based on his own testimony, it is more probable that these reasons were unrelated to the alleged information provided by Mr. Pukwana, or the Eastern Cape Province Hostel Policy for Public Ordinary Schools.
47. Mr. Hlope’s testified, to support his view that Ms. Maxwane did not in fact qualify for the hostel allowance, on the Eastern Cape Province, Hostel Policy for Public Ordinary Schools dated 23rd February 2013 (“the Provincial Hostel Policy”), which the Respondent brought into evidence through the testimony of Mr. Hlope. The Respondent did not provide this document to the Applicant or the Council at the outset of the proceedings, nor did they provide it at the time that they submitted the evidence, nonetheless Mr. Hlope was permitted to refer to it, and the Panellist shared the document on the screen for the parties via the Zoom conference facility.
48. The provisions Mr. Hlope referred to from the Provincial Hostel Policy to support his version that Ms. Maxwane is required to reside on the premises in order to qualify for a hostel / supervisory allowance were the following:
2.4 PERSONNEL
1. School Hostel Personnel
(1) The Hostel personnel will be determined and provided through the Post Provisioning Norms (PPN) and School post establishment as determined by the Department of Education.
(2) The following personnel will be required in a school hostel, subject to norms set through PPN:
(a) Superintendent /Supervisor Level 1 of the hostel who oversees the overall management of the hostel on behalf of the Hostel Management Committee and also be accountable for proper bookkeeping of income and expenditure as per the Public Finance Management Act, Treasury Regulations and Personnel Administrative Measures.
(b) Principal/ Senior Housekeeping Supervisor/ Supervisor Level 2 residing at the hostel, who is responsible for the day to day running of the hostel complex.
(c) Supervisors Level 3, preferably educators, who supervise hostel boarders.
………….
2. Post Establishment
(1) Post Establishment will be guided by the personnel requirements proposed in 2.4 above and the process of PPN determination.
(2) Annexure B attached provides the envisaged staffing to be considered.
3. Additional Supervisory Duties
(1) The PAM document provides for the additional personnel needed for learner social wellbeing, extra-curricular and curricular work. Such personnel may include educators or non-educators.
4. Allowance
(1) Allowance payable to personnel doing supervisory duties in 2.4.3(1) above will be determined according to Personnel Administrative Measures.
5. Roles and Responsibilities of hostel supervisors
(1) Hostel Supervisors will perform their duties as stipulated in Chapter D of the Personnel Administration Measures document. The roles cover four areas, which are general, educational, economic and administrative work.
………………….
and
CHAPTER 4
4. MANAGEMENT, ADMINISTRATION, GOVERNANCE AND CONCLUSION
4.1. Management and Administration of school hostels
(1) The principal and the superintendent must establish the Hostel Management Committee that will be responsible for the administration and control of the hostel.
(2) The responsibility for the day to day efficient management is the responsibility of the Superintendent who serves as liaison between the Hostel Management Committee on the one hand and the principal and School Governing Body on the other hand.
4.2. Governance
(1) The School Governing Body is responsible for the governance of the hostel in collaboration with the Hostel Management Committee, Principal and Superintendent.
4.3. The management hierarchy is composed of:
Position Duty/Responsibility Appointment
The School Governing Body Governance of school and hostel 3 years
The Hostel Man Committee Management of hostel 3 years
Supervisor Level 1 (Superintendent) Overall daily control and management of hostel including financial management and management of staff Full time. Reside in hostel
Supervisor Level 2 (Senior Housekeeping Supervisor- residing in hostel The well-being of boarders and the supervision of the kitchen, laundry, cleaning services (dormitories) Permanently appointed. Reside in hostel
Supervisor Level 3 (Duty Staff) Well-being of learners, supervise during study, meals, play & excursions etc. Appointed annually
49. Annexure A of the Provincial Hostel Policy, which was also referred to in Mr. Hlope’s testimony, provides as follows:
50. The Provincial Hostel Policy envisages the full time appointment of the supervisors levels 1 and 2 who must both reside in the hostel (see the table on page 12), and in Annexure A, levels 1, 2 and 3, all of whom should reside in the hostel. It is important to highlight that in Annexure A the superintendent, which Mr. Hlope has identified as being the role he fulfils, should also reside in the Hostel. Mr. Hlope does not reside in the hostel, and fulfils the role of superintendent, or supervisor level 1. It is unclear if Mr. Hlope receives an allowance for his superintendent / supervisory role, however, if he does, then on his own evidence and argument, he would not be eligible for this allowance, as he would be required to reside in the Hostel in order to qualify for it.
51. Nonetheless, the Provincial Hostel Policy refers to certain full time permanent roles, which would require residence at the hostel. The evidence from both parties regarding the Supervisory role and allowance that Ms. Maxwane is claiming she carries out, indicates that this allowance is paid monthly and for a year, which then needs to be renewed if the duties are still being carried out. It is therefore not a permanent full time position, as envisaged in the Hostel Policy’s roles for supervisory staff residing in the hostel.
52. The Provincial Hostel Policy provides for the following, which I accept are additional to the full-time, residential supervisory positions within the hostel:
“3. Additional Supervisory Duties
(1) The PAM document provides for the additional personnel needed for learner social wellbeing, extra-curricular and curricular work. Such personnel may include educators or non-educators.
4. Allowance
(1) Allowance payable to personnel doing supervisory duties in 2.4.3(1) above will be determined according to Personnel Administrative Measures.”
53. I accept the Applicant’s submission that this is in fact the part of the Provincial Hostel Policy that is applicable to Ms Maxwane, and that there is no requirement that in order to qualify for this allowance, the person must reside in the hostel. In addition, there is no evidence whatsoever that this allowance is granted only to persons performing supervisory duties over and above their other ‘daily duties’ (and therefore outside of normal working hours) – the evidence that Mr. Hlope submitted to substantiate this is unreliable, in the form of uncorroborated and vague hearsay evidence (information received from Mr. Pukwana), whereas the provisions of the Personnel Administrative Measures are clear and legally binding.
54. The relevant provisions applicable to the Applicant in terms of the Personnel Administrative Measures (“PAM”) are (my emphasis):
“C.3 ALLOWANCE TO EDUCATORS WHO PERFORM SUPERVISORY DUTIES
AT HOSTELS
C.3.1 The level of supervisory duties at hostels
There are, at most, three levels of work, but it is not essential that all three levels have to be utilised in hostels. The levels and the functions attached to them are as follows:
………….
C.3.1.3 Level II
Normally every hostel has a supervisor on level II.
C.3.1.3.1 General
Practically implements the educational, economic and administrative policy as laid down.
C.3.1.3.2 Educational
Responsible for the spirit and discipline in the hostel in respect of the welfare, study and recreation of boarders.
C.3.1.3.3 Economic
Responsible for the controlling of supplies, accounts, bookkeeping, registers, the obtaining of tenders and all other duties connected with the post.
C.3.1.3.4 Administrative
Responsible for all administrative duties necessary for the efficient running of a hostel.
This includes inter alia, the following:
(a) Recommendations in respect of the appointment of staff.
(b) Periodic reports and recommendations in respect of buildings, equipment, grounds, etc.
(c) Management of staff.
(d) Handling of applications for admission of boarders.
(e) Collection of boarding fees.”
55. The evidence provided by the Applicant was that she is responsible for the daily running of the hostel, she is the appointed supervisor, this is reflected in the documents submitted in the documentary evidence, and the evidence submitted by her shows that she broadly fulfils the functions as described above, specifically that she does not carry overall responsibility for these functions, but her role is the practical implementation / monitoring that the functions are being carried out properly – as per the policies / requirements that she is aware of / informed of etc. The distinction between Level I (supervisory duties in a hostel), which the Principal, Mr. Hlope allegedly carries out, and Level II, which Ms. Maxwane carries out, is evident when considering the duties that Mr. Hlope is required to fulfil as Level I, to qualify for the relevant allowance (my emphasis to illustrate the duties of the Level I when compared with those of Level II):
“C.3.1.2 Level 1
Normally the head of the educational institution (e.g. principal of the school) is classified under level 1 and he/she is in overall control of all the hostels.
C.3.1.2.1 General
(a) Responsible for every aspect of the hostel's activities in accordance with the provincial department's policy.
(b) Determines policy in respect of the educational, economic and administrative matters within the framework as prescribed by the department concerned.
(c) Exercises the necessary control to ensure that the policy is implemented.
C.3.1.2.2 Educational
Exercises overall control in respect of the discipline and spirit in the hostel, including
the welfare, study and recreation of boarders.
C.3.1.2.3 Economic
Controls the economic function in accordance with the policy of the department and bears the final responsibility. Responsibility is thus accepted for the compilation of the budget, the obtaining of certain tenders and the control and management of all supplies to ensure the most efficient and economic utilisation thereof.
C.3.1.2.4 Administrative
Responsible for all administrative duties which are necessary for the efficient running of a hostel. This includes, inter alia, and where applicable, the following:
(a) Recommendations in respect of the appointment of staff.
(b) Periodic reports and recommendations in respect of buildings, equipment, etc.
(c) General management of staff.
(d) Handling of applications for admission of boarders.
(e) Collection of boarding fees.
(f) Compilation of duty sheets for staff.”
56. As evident from both the duties required for claiming of the allowance for supervising duties at a hostel at Level I and Level II, there is no requirement in the legislation that the supervisory duties required for Level I, II or in fact Level III include residing in the Hostel, nor that they should carry out these functions ‘outside of their normal working hours’.
57. When comparing the extent of the duties allocated to a Level I, which show that the Principal is responsible for the bulk of the functions relating to the Hostel, and the Level II supervision is simply responsible for the practical implementation of these functions, I accept that the Deputy Principal, Ms Maxwane, fulfils the functions of running the hostel in a manner that is contemplated in the PAM, C3, at Level II. She therefore qualifies for the allowance applicable for a Level II classification. It is possible that she is in fact carrying out some functions listed under Supervisor Level I, however this is not within the ambit of this arbitration hearing.
58. The legal status of the PAM provisions is explained as follows :
“A.1 SCOPE OF APPLICABILITY
A.1.1 This PAM is applicable to all educators as defined in the EEA.
A.1.2 There may, in respect of the matters regulated in this PAM, be no deviation from the prescribed measures:
…………………………..”
59. The Provincial Hostel Policy document provided as evidence to prove the Respondent’s version that the Applicant does not qualify for the supervisory hostel allowance in terms of the PAM provisions is itself subject to, and based on, the provisions of PAM, and even if the legislation is amended, in a way that differs from the Provincial Hostel Policy provisions, then the legislative provisions of PAM would be applicable, and not those of the Provincial Hostel Policy.
60. As per the analysis above, the Provincial Hostel Policy does not in fact prescribe that the Applicant should reside on the premises in order to qualify for the supervisor / hostel allowance, and in fact refers to the provisions of PAM in order to determine if the Applicant should qualify for a supervisor allowance, or not.
61. In conclusion, I find that there is no evidence to support the Respondent’s argument that Ms. Maxwane should reside at the hostel to qualify for the Hostel Allowance and/or that the duties relating to the hostel should be performed in addition to the school duties and out of working hours. Ms. Maxwane is performing duties that involve the ‘running of the hostel’, and she was paid a supervisor / hostel allowance for this through the request submitted to the Department by the Principal , for the years 2014, 2015 and 2016, her duties have not changed, she has continued to fulfil these duties, and there is no basis upon which to find that she is now not entitled to receive this allowance.
62. The undisputed evidence shows that Ms. Maxwane has carried out these same duties from the date of her appointment, the Principal, Mr. Hlope wrote to the Department to request and motivate that this allowance be paid to her , and it was paid to her. The evidence supports the Applicant’s claim that she is entitled to this benefit, and it has been unfairly withheld from her through the actions of Mr. Hlope in his role as Principal of the school.
63. The Principal did not submit these motivations / letters for the years 2017, 2018, 2019, 2020 and 2021, and the Applicant did not receive this allowance over this period, which she was entitled to, and remains entitled to, while she carries out the same functions that she is currently carrying out in running the hostel during her normal working hours.
Calculation of Hostel Allowance and process for payment
64. The provisions of PAM set out the basis for calculating the Allowance due and payable to the Applicant for the supervisory duties she performed at the hostel. The Allowance is paid in the form of a non-pensionable allowance based on a specific percentage of the basic payment (salary position plus any pensionable allowance) of the educator . The percentage is based on the hostel enrolment numbers for each year for the specific Supervisor Level Allowance. I did not receive evidence verified by both parties of the hostel enrolment numbers in each year, and in addition, St Patrick’s is a school for children with special needs / disabilities, and it is possible that this would affect the weighting allocated to the School for the purposes of determining the Department’s calculation of enrolments (i.e. this might be increased based on the fact that the children are with disabilities), with PAM providing as follows:
“C.3.2.2 Where, in terms of approved educational policy in respect of post-provision scales, weighting on the actual pupil numbers based on their disabilities, occurs at specific institutions in order to determine the number of posts, a corresponding weighting of the actual hostel enrolment is made with a view to determining the number of hostel enrolments for the purposes of paragraph C.3.2.1.”
65. It is therefore not possible to determine the precise percentage that should be applied to the Applicant for the purposes of calculating this allowance due and payable to her. In addition, whilst the Applicant provided me with salary advices for 2016 (showing payment of the Hostel Allowance), and 2017 through to 2020, showing that the allowance was not paid, the salary advices are from different months of the years, and the exact salary for the Applicant for each year, given increases that may have been applied / not applied, is unclear.
Finding
66. Based on the above, the Applicant qualified for, was entitled to, and should have received an allowance for performing supervisory duties at a hostel / hostel allowance (for Supervisor Level II in terms of PAM) for the years that she did not receive this allowance but carried out these duties, being 2017, 2018, 2019 and 2020. The Applicant is further entitled to this allowance for 2021, for the period over which she has already, and continues to carry out the functions she currently carries out for the Hostel at St Patrick’s School.
67. The conduct of the Respondent was unfair, through failing to / omitting to fulfil the actions required to secure this allowance (“Hostel Allowance”) for the Applicant, in the form of a written motivation from the Principal, Mr. Hlope, to the District Director at the King Williamstown office of the Department of Education, setting out the motivation for the allowance and the number of learners residing in the hostel, for each year that the Applicant fulfilled this Supervisor function from 2017 to 28 February 2021, inclusive.
68. It is trite that a benefit which an employee is entitled as of right, either in terms of a contract of employment, a collective agreement or in terms of legislation [such as an allowance for carrying out supervisory duties in a hostel as per the provisions of PAM referred to above], falls squarely within the definition of ‘benefit’ in terms of section 198(2)(a) of the LRA , although this was also not disputed by the parties.
69. This benefit was one that the Applicant was entitled to, and unfairly deprived of, without a valid reason and without due process being followed to justify and explain the reason for this benefit being denied to the Applicant. The Respondent’s evidence was contradictory around the initial reason for not submitting the 2017 written motivation to the District Office (i.e., that he was busy, did not find it, and thought that the Applicant had taken the application away with her; and the further explanation that the Principal had found out that the Applicant was not entitled to the allowance) and points towards a different, and unfair, reason, why the Respondent chose to act the way it did regarding this hostel allowance.
70. The Applicant has therefore been unfairly deprived of a benefit to which she was entitled, and the remedy for this unfair labour practice is the reinstatement of this benefit from the date that that the benefit ceased, for the full period that the Applicant carried out the hostel supervisory duties and was entitled to this benefit, being 1 January 2017 to 28 February 2021.
Award
71. The Applicant has discharged the onus to show that the Respondent committed an unfair labour practice in relation to the provision of a benefit in the form of an allowance for performing supervisory duties at a hostel to which the Applicant was entitled for the period January 2017 through to 28 February 2021.
72. The Respondent should make payment to the Applicant, Mrs. Nomvume Maxwane, Persal number 52090779, of the amounts due to Mrs. Maxwane for carrying out her duties at supervisory level II (in accordance with PAM C.3.1.3) entitling her to payment of a Hostel Allowance for the period January 2017 through to and including 28 February 2021, calculated in accordance with the applicable provisions of PAM, being C.3.2 and C.3.3, by no later than Friday 30th April 2021, via EFT directly into Mrs Maxwane’s bank account [used for the payment of her monthly remuneration by the Respondent], failing which it shall earn interest in terms of section 143(2) of the LRA.
73. No order is made in respect of costs.
SIGNED AT MAKHANDA ON THIS 22nd DAY OF FEBRUARY 2021.
M HUBER