Panelist: Jonathan Gruss
Case No.: ELRC41-20/21EC
Date of Award: 28 March 2021
In the ARBITRATION between:
NAPTOSA obo Mzingaye Andrew Poni
Department of Education: Eastern Cape
Applicant’s representative: Mr Adams
Applicant’s address: PO Box 34700,
Newton Park, Port Elizabeth
6055 Telephone: 041 364 0399
Telefax: 041 364 0259
Respondent’s representative: Mr Mgidlana
Respondent’s address: Private Bag X 0032
Telephone: (040) 608 4541
Telefax: (040) 608 4313 / (047) 874 0422
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 3 March 2021 and the proceedings were electronically recorded. The applicant, NAPTOSA obo Mzingaye Andrew Poni referred an enforcement dispute to the ELRC. The applicant was represented by Mr Adams from NAPTOSA and the respondent, Department of Education: Eastern Cape was represented by Mr Mgidlana, an Assistant Director: Labour Relations. Written closing arguments were submitted by the applicant party on 10 March 2021
2. The applicant gave evidence under oath and no further witnesses testified at the arbitration hearing. The applicant’s evidence confirmed the common cause facts summarized below. This matter was previous postponed on 12 August 2020; 30 September 2020 and 2 December 2020 to afford the respondent to implement the resolution and verify the applicant’s claim and do the necessary calculations. From the onset, the entitlement was not disputed and this problem appeared to be a systemic within the Eastern Cape.
ISSUE TO BE DECIDED
3. This dispute concerns the refusal and or failure of the respondent to translate the applicant to Education Therapist Grade 2 in terms of ELRC Collective Agreement 1 of 2012.
BACKGROUND TO THE ISSUES
4. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
4.1 During 2005 the applicant qualified as a physiotherapist and before he started working for the respondent, he worked for 1 year first for the Department of Health doing community service as physiotherapist. In 2007 he became a junior therapist and start with the respondent in 2009 employed in terms of the Employment of Educators Act. When he commenced employment with the respondent he had already been registered since 2008 with the Health Professional Council of South Africa (HPCSA) and with the South African Council of Educators (SACE). At as July 2012 he had 4 years’ active service with the respondent and had an additional 3 years’ service experience as a physiotherapist prior to gaining employment with the respondent. He was appointed as a Senior Education Specialist and was informed later on that he would be upgraded as an Educational Therapist office-based, with salary grade entering the top notch of grade 1. He has not been upgraded. His current salary is that of the Senior Education Specialist in an Educational post. Since 2012, he had lodged numerous grievances. Since 2016, the respondent employed therapist as education therapist and he was told by his Chief Education Specialist that he would be transferred from Senior Education Specialist to Senior Educational Therapist Specials dated back to 2010.
4.2 He has not progressed to Grade 2 and was supposed to be progressed to Grade 2 in terms of the Resolution effective from 2010. He has also not received a grade progression.
4.3 During February 2016, the post of Senior Education Therapist were advertised with more lucrative OSD salary scales. He applied but was informed by the Chief Education Specialist: inclusive Education, Ms Njontini to withdraw his application as the Department of Education Eastern Cape was in the process of translating him from Senior Education Specialist to Education Therapist’s Specialist Grade 2.
4.4 The applicant’s request is informed by clause 5.1.10 in terms of ELRC Collective Agreement number 1 of 2012 on the recognition of relevant experience as well as Clause 5.1.12 on translation measures.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
6. It was submitted in written arguments by the applicant that he submitted numerous grievances to both the District and the Provincial Labour Relations office and only after months thereafter, the Labour Relations Section responded and he was informed that the HR Provincial Office was not conversant about the interpretation and implementation of OSD and as such, they would be attending a workshop planned for 13 to 14 June 2018. He was promised that they would call him for feedback after the workshop but he never received any feedback. The applicant also requests that his years of experience as a physiotherapist serving the Department of Education be recognised and he be remunerated accordingly. He seeking for the implementation thereof to be backdated.
7. It was further argued that the respondent does recognise the applicant’s experience in terms of clause 188.8.131.52 as per the inclusive education submission to the HR office submitted to HR to create this post. Furthermore, failure by the respondent to implement the collective agreement retrospectively as from 1 July 2010, prejudiced the applicant and he has not been afforded opportunity to be remunerated as an Education Therapist Specialist Grade 2.
8. The applicant was of the view that the management position of SES are equivalent to the position of an Education Therapist grade 2 and a translation is the obvious solution. In support thereof, by the signing of the collective agreement, the applicant had 6 years’ experience as a physiotherapist after registration with the HPCSA. He therefore met compliance with educational qualifications, statutory requirements, prescribe training and competence contained in the Collective Agreement.
9. It was further argued that clause 184.108.40.206 does not mean that all physiotherapist must submit proof of relevant experience to the Department as they were employed there in the entire career as in the education sector
10. The rules relating to the implementation of the resolution requires the Provincial Education Department to verify the information (qualification, registration with the HPCSA) by 7 November 2012. The respondent has failed to do so and is allegedly still in the process of verifying the information for all therapists, counsellors and psychologists employed by the respondent.
11. The business rules regarding the implementation of the resolution for employees employed under the Employment of Educators Act must be translated from their current post (in the applicant’s case (SES) to the appropriate posts, grades and salary scale provided for in terms of OSD taking into account the current duties and experience (service). It is also stated in the resolution that the OSD will be done in accordance with post (level) that an employer occupied on 30 June 2010.
12. Clause 220.127.116.11 of the business rules referred to the translation of education therapist and reads “current post 3 office- based Senior Education Specialist employed on or before 1 July 2010 must be translated as follows to the new OSD post and salary structures” and clause 18.104.22.168 indicates that paragraph 22.214.171.124 is also applicable to current office base post employed on or before 1 July 2010. Clause 3 .2.1.6 stipulates that deviations from the measures contained in the collective agreement are not permissible as it would constitute non-compliance with an agreement of the ELRC.
13. In conclusion, it was argued that the applicant should have been translated to the rank of Education Therapist Specialist Grade 2 office-based with the retrospect effect as from 1 July 2010 in terms of Collective Agreement number 1 of 2012.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. The entitlement based on the uncontested evidence and concessions made by the respondent was not in dispute.
12 Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
13 Clause 69.6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
14 Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
15. Clause 69.6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
16. ELRC Collective Agreement number 1 of 2012 Occupational Specific Dispensation (OSD) was concluded and signed on 7 September 2012. The collective agreement introduce an occupation specific remuneration and career progression dispensation for education therapists in the public education. Under the definition section, grade progression is defined as the salary movement from one salary grade (girl) to the first salary notch of the next higher salary grade (scale) attached to a post. Pay progression is a salary movement from one salary notch attached to a salary grade (scale) to the next higher salary notch attached to the same salary grade [scale). Salary grade (scale) is the set of salary notches attached to particular salary grade (scale).
17. In terms of the objectives of the resolution is to give effect to paragraph 4 of PCBC Resolution number 1 of 2007, agreement on improvement in salaries and other conditions of service for the financial year 2007/2008 to 2010/2 2011. To introduce an occupation specific remuneration and career progression dispensation (OSD) for physiotherapist, speech therapists, occupational therapist (the after referred to as education therapist), councillors and psychologist employed in the public service. To provide within the OSD the career pathing opportunity based on competence, expertise and performance; pay progression within the limits of the relevant grades (scales) based on performance; grade progression, where applicable, based on performance; recognition of appropriate experience for the purposes of grade progression and recognition of performance for accelerated progression to higher grade and pay progression within the salary grade.
18. Clause 126.96.36.199 provides for the recognition of relevant experience and that this agreement provides a basis for the recognition of appropriate/relevant experience on appointment as provided in Annexure A3, B3 and C3 of the agreement.
19. Clause 188.8.131.52 provides for the salary position of a serving education therapist, counsellor and psychologist upon translation to the OSD is protected against that of a new education therapist, Counsellor and psychologist as provided for in Annexure A3, B3 and C3 (translation tables) of the agreement.
20. Whereas, clause 184.108.40.206 provides for the recognition of relevant experience of serving education therapists, counsellors and psychologists covered by this agreement shall be based on verified proof of such experience. Proof of such experience, where not available on the personnel record of an employee, must be submitted to the employer by 30 September 2012 in order to qualify for any recognition with effect from 1 July 2010 in terms of this agreement. Where such proof of experience is submitted after 30 September 2012, recognition for salary purposes, where provided for in the agreement, shall be with effect from the first day of the month following the month in which the proof was submitted by the employee.
21. Clause 5.1.11 provides that all serving education therapists, counsellors and psychologists who are covered by this agreement, and who advance to a higher post or grade, shall gain at least one (1) notch on such appointment (promotion rule).
22. Clause 220.127.116.11 further provides that the translation from the existing dispensation to appropriate salary grades (scales) attached to the OSD based on the principle that no serving education therapist's, counsellor's or psychologist's salary position (notch or package) will be less favourable with the implementation of the revised salary.
23. According to the Department of Basic Education Notice No 689 dated 24 May 2019, Improvement in Conditions of Service: Annual Cost of Living Adjustment for Educators employed in terms of the Employment of Educators Act, 1998 as amended with effect 1 April 2019. This was promulgated in accordance with PSCBC Resolution 1 of 2018 and provides for the salary adjustment for the period 1 April 2019 to 31 March 2020, with effect from 1 April 2019 for educators on salary level 1-12 dealt with in Schedule 1 is as follows: Notch Code 1 to 191 – 6.2%: Notch Code 192 to 307 -5.7%: Notch Code 308 to 432 – 5.2% and inclusive package scale 5.2%. The salary adjustment for the period 1 April 2019 to 31 March 2020 for counsellors, therapists and psychologists, effective from 1 April 2019 is detailed in Schedule 2. The Personnel Administrative Measures (PAM) will be amended in order to include the scales as outlined in Schedule 1 and 2 respectively and other aspects of the above Resolution.
24. As submitted by the applicant in their written arguments that is confirmed by documentation submitted by the applicant such as NAPTOSA salary adjustments charts that is a copy of the translation scales , ELRC Collective Agreement 1 of 2012, paragraph A35 Translation of SES (Therapists Post level 3) on Pages 35 and 36 ; PAM Annexure B9 page B-123 ; applicant’s persal enquiry service record , the salary calculations for applicant is as follows:
24.1 The applicant’s salary is based on the OSD scales for educators:
24.2 As at 1 July 2010 the applicant’s salary as an educator was R263 478 whereas the Education Therapist Grade 2 was R 325 104 a difference of R 61 626. As confirmed by the salary and notch scales, the applicant would have reached the maximum notch for education therapist specialist grade 2 in 2018. He would have then only qualified for a yearly salary increase and not a salary progression on 1 July as from 2018.
Educator salary Education Therapist
Grade 2 difference
1 July 2010 263478 325104 61626
1 May 2011 302429 347 211 44782
1 July 2011 305514 352419 46905
1 May 2012 326901 377488 50587
1 July 2012 330159 382740 52581
1 April 2013 351948 408000 56052
1 July 2013 355494 414126 58632
1 April 2014 381801 444771 62970
1 July 2014 385605 451437 65832
1 April 2015 412596 483039 70444
1July 2015 416721 490287 73566
1 April 2016 448392 527560 79168
1 July 2016 452883 535464 82581
1 April 2017 485943 574654 88711
1 July 2017 488589 583164 94575
1 April 2018 520347 621069 100722
1 April 2019 555501 656469 100968
24.3 The amount owing to the applicant is R1 190 702 + R62 948, 24 (short payment on bonus since 2011) = R1 253 650, 24
25. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.” (emphasis added)
26. I therefore make the following declaratory order.
27. The respondent, the Department of Education: Eastern Cape is in breach of ELRC Resolution 1 of 2012 by not translating the applicant, Mzingaye Andrew Poni to the rank of Education Therapist Specialist grade 2 with retrospect to 1 July 2010.
28. The respondent, the Department of Education Eastern Cape is hereby ordered to amend the applicant’s service records (PERSAL) to reflect the applicant’s translation to the rank of Education Therapist Specialist grade 2 with retrospect to 1 July 2010. This must be done by no later than 16 April 2021.
29. The respondent is further ordered to pay the applicant an amount of R1 253 650.24 subject to tax and other lawful deductions by no later than 31 May 2021, that being the difference between the remuneration and benefits he would have earned had the respondent translated him to the rank of Education Therapist Grade 2 with effect from 1 July 2010 to date as reflected in paragraph 24.2 and 24.3 above.
Name: Jonathan Gruss