Case Number: ELRC726-18/19EC
Province: Eastern Cape
Applicant: Luzipo Nolita and 71 Others
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 2 March 2021
Arbitrator: Ncumisa Bantwini,
Panelist: Ncumisa Bantwini,
Case Number: ELRC726-18/19EC
Date of Award: 02 March 2021
IN THE ARBITRATION BETWEEN
Luzipo Nolita and 71 Others :Union/Applicant
Department of Education - EC : Employer/Respondent
DETAILS OF HEARING AND REPRESENTATIONS
1. This arbitration was partheard on 10 June 2019, 20 August 2019, 21 August 2019 in the offices of the respondent in Zwelitsha. It was finalized as a virtual process on 15 January 2021. The dispute relates to demotion and it came before the ELRC in terms of Section 191 (1) (5) (a) read with section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, (the LRA).
2. Parties agreed to submit written closing arguments on 25 January 2021. The submitted arguments have been considered in the preparation of this award.
3. I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute.
4. Advocate Zola Mtyobo, instructed by Mnci Attorneys appeared for the applicants while Mr. Asaduma Buyana appeared for the respondent, the Department of Education- Eastern Cape.
ISSUE TO BE DECIDED
The issues to be decided is whether the 72 applicants were demoted or not, if they were indeed demoted, whether the demotion was for a fair reason or not.
BACKGROUND TO THE DISPUTE
5. The applicants referred a dispute to the ELRC through their Attorney, regarding an allegation of demotion by the respondent. When the dispute could not be resolved at conciliation level, the applicants filed a request for arbitration.
SURVEY OF EVIDENCE AND ARGUMENT
6. According to Advocate Mtyobo‘s opening statement, the dispute relates to unfair labour practice based on demotion of 72 applicants. The applicant’s positions and salaries were re-aligned as they were underpaid, meaning, there were disparities on how they were placed and paid.
7. The applicants seek re-alignment of their positions as well as backpay .
8. The applicant, Mr. Jerome Alfonso Fredericks testified under oath as follows:
9. He works for the respondent at BCMM District Office in East London as a Learning Support Specialist since 2013 but he was not placed on the correct salary together with other applicants.
10. He further testified that when they were appointed as Learning Support Facilitators their salaries were not the same, the respondent failed to place them in their correct salary scales and the respondent also failed to place them in the organogram like other employees. The position’s salary range between R218 388.00 to R545 958.00 per annum.
11. The task team which was established as per further evidence of the witness found that some of the applicant’s salaries were not adjusted in accordance with the human resources prescripts as some of them were downgraded while some were upgraded to the level of Senior Educaton Specialists. The respondent failed to address the disparities raised by the applicants.
12. Under cross-examination, the witness testified as follows:
13. When it was put to the witness that the dispute relates to allegations of discrimination, and not unfair labour practice, his response was that he understands that. The witness confirmed further that the upgrading of positions was done in 2015 but not with retrospective effect from 2013 and there are disparities in terms of post levels.
14. The second witness Ms Thenjiwe Toto testified as follows:
15. She works for the respondent as Human Resources Consultant and that she was requested by the appplicant’s Attorney to look at the irrgualrities and possible unfair labour practices against Learner Support Facilitators.
16. The witness stated that there are disparities in their (applicants) salaries which were caused by their incorrect placements on appointment and downgrading of some of them without consultations. She made reference to an email from Mr Newsane Kollar, the respondent’s Legal Advisor to Mnci Attorneys wherein he conceded to irregularities which were undertaken by the respondent as some of the Leaner Support Facilitators being underpaid.
17. The witness testified further that she recommends that the applicant’s salaries be corrected including those who were demoted with effect from 2013 when they were appointed to the positions.
18. Under cross-examination, the witness testified as follows:
19. She does not have experience on the human resources conditions of employment of Educators. The Learner Support Facilitators were supposed to be placed on correct notches in 2013 and not in 2017. She disputed that the Learner Support Facilitators are paid correctly.
20. In Closing, Advocate Mtyobo argued as follows;
21. The email which was writted by Mr Kollar should be considerd as a concession of wrong doing by the respondent and that he confirmed to have forwarded an application to the Institutional Operations for approval.
22. The late HOD (Mr Kojana’s) email dated 26 August 2019 is another concession wherein he wrote to the Chief Director to look at the plight of the applicants. The applicant’s representative made reference to some authoirties and finally submitted that the applicants have discharged the onus on balance of probabilities in proving that the respondent committed unfair labour practice against them.
23. Mr Buyana stated in his opening statement that the applicants case does not relate to demotion. He will call 2 witnesses to explain placement/grading of employees. The witnesses will also clarify the issue of downgrading and salary disparities.
24. The first respondent’s witness Mr. Joss Daniel Waliadhazhayi testified as follows;
25. When Eastern Cape Learner Support Facilitators claimed discrepencies in their salaries, their post levels were aligned, upgraded to post level 3 and were paid what was due to them in 2015. Some applicants were underpaid while others were overpaid and this was spotted after the files were audited during verification process (bundle E page 12).
26. The Learner Support Facilitators were upgraded in 2015 from post level 2 to post level 3 and no positions were advertised in 2015 (bundle E page 16 clause 12.1).
27. The witness further submitted lists/categories of applicants who were correctly paid and graded, overpaid and the 7 employees whose statuses were still being investigated at the time.
28. In closing, Mr Buyana argued as follows:
29. The applicant’s witness was based on assumptions that there were salary disparities between them and other employees although the key performance areas are exactly the same. This does not address the dispute as unfair labour practice but as a discrimination dispute.
30. Ms Toto’s evidence was based on assumptions as her evidence was not supported by any piece of legislation. The acknowledgement of the letter by Mr Kolla does not entile them (applicants) for an unfair labour practice claim and Mr Kolla was not called to testify.
31. Mr Danial testified that the applicants were correctly graded and those who were underpaid were correctly paid, meaning, they were also correctly graded.
32. Mr Buyana further submitted that the applicant’s case is premised around the fact that they are entitled to be graded from post level 2 to post level 3 with effect from 2016.
33. On the basis of the evidence adduced by parties, the applicants have failed to discharge the onus to prove any irregular or act or omission committed by the respondent in respect of unfair labour practice based on demotion. The applicants could not substantiate their claim against the respondent and their case must be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
34. It is common cause that the applicants were appointed to the positions of Learner Support Facilitators in 2013, post level 2 and according to the evidence of the respondent the positions were upgraded to post level 3 in 2016.
35. It is the applicants case that the respondent committed unfair labour practice based on demotion as there are disparities in terms of their post levels as well as their salaries which ranges between R218 388 to 545 968 per annum.
36. In terms of section 186 (2) of the LRA, “unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving-
(a) Unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
37. It is also common cause that the applicant’s dispute relates to the issue of demotion, salary and grade disparities caused by the fact that some of them were incorrectly placed and underpaid.
38. It must be noted that the evidence of the respondent to the fact that all Learner Support Facilitators including the applicants were correctly graded from post level 2 to post level 3 and paid accordingly in 2015, and that those who were overpaid and underpaid their salaries were adjusted accordingly.
39. The applicants representative argued in his closing arguments that the email from Mr Kolla should be considered as a concession of wrong doing by the respondent, he (Mr Kolla) was not called to testify.
40. It must also be noted that although the applicant’s witnesses testified that some of the applicants were demoted dating back from 2013, there was no specific evidence tabled during the arbitration specifying amongst 72 applicants who was demoted/incorrectly graded from which post level to which post level, salary grade, salary notch and what salary difference is being owed by the respondent in the circumstances.
41. Based on the above evidence, the applicant has failed to discharge the onus to prove the claim of unfair labour practice against the respondent pertaining to demotion/ incorrect grading.
42. In the circumstances, I deem it reasonable to make the following award:
43. The case is dismissed.
44. No order as to costs is made.