Commissioner: Victor Madula
Date of Award: 25 March 2021
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY
Case No. PSES 357-19/20LP
In the matter between
RAMAKGWAKGWA THOMAS MATOME AND 10 OTHRES Applicants
LIMPOPO DEPARTMENT OF EDUCATION Respondent
Details of hearing and representation
1. This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearing took place virtually on 05 March 2021 at 9:00AM. The applicants, Ramakgwakgwa T.M, Malatji M.N, Malatji N.A, Malatji E.M, Mokgotho N.M, Kadiaka M.L, Mogofe R.E, Mabelane E, Ndimana A, Malapane R.M and Sebake M.F were represented by Ramakgwakgwa Thomas Matome, (one of applicants), while the respondent, Limpopo Department of Education was represented by Matlou Mokgoba, its official. The proceedings were digitally voice recorded and conducted in English.
Nature of the dispute
2. The dispute was about the applicants’ alleged unfair labour practice related to benefits. The applicants are alleging that the respondent is failing to pay them Teachers incentive (rural allowance), even though their school Makhwese Secondary School do qualify.
Issues to be decided
3. I must decide whether or not the applicants qualify for Teacher Incentives (rural allowance). I must determine an appropriate relief, if it is found that the applicants qualify for Teacher Incentive.
Background to the dispute and common cause issues
4. The applicants have been employed by the respondent on different dates. They are employed at Makhwese Secondary School as Educators on different levels, earning different salaries. The school is quintile 2 and its weighted distance is above 140 kilometers. The RVQ levels of Educators are RVQ13 and above.
Survey of the Applicants’ evidence and argument
The applicants did not hand in bundle of documents, but referred to the one handed in by the respondent (BUNDLE B). One witness testified for the applicants. Romulus Asaph Mogofe testified under oath and in English that:
5. Makwese Secondary School is situated at Ga-Mokgotho under Fetakgomu Tubatse Local Municipality (ward 16). According to norms and standard the school is a non-fee school. The school is more remote than some of the schools receiving Teacher Incentives. There are other quintile 2 schools where Educators are receiving the teacher incentives. There were also Council’s matters (PSES188-17/18LP, PSES313-14/15LP, PSES554-15/16LP and PSES178-17/18EC) where the different Commissioners awarded Teacher Incentives to quintile 2 schools.
During cross examination, Mogofe testified that there are mainly two qualifications for the school to qualify for teacher incentives, these are that (i) the school must be rural, poor, no fee and either quintile 1 or 2 and (ii) combination of the above. In terms of page 16 of Bundle B, paragraph 2 they do not qualify for teacher incentives, but they are relying on the policy of the Department of Basic Education. The Limpopo Department of Education Circular No. 71 of 2017 is not a policy and it was not stamped. They believe that the circular is not authentic. Schools which are quintile 1 and 2 do qualify for teacher incentives.
Survey of the Respondent’s evidence and argument
The respondent handed in bundle of documents which I marked BUNDLE B. One witness testified for the respondent. Matloga Maria testified under oath and in English that:
6. She is a Senior Personnel Practitioner of the respondent, dealing with leave and all employees’ benefits. Makhwese Secondary School does not qualify for teacher incentives. The criteria they are using to identify qualifying schools are quintile 1 and 140 kilometers weighted distance. Makhwese Secondary School is quintile 2 and does not qualify as per the Limpopo Department of Education Circular No. 71 of 2017(page 16 of Bundle B). The Departmental Circular No. 71 of 2017 is a legal document, because it is on the Departmental letter head and signed by the Head of Department. It is the responsibility of the Head of Department to make sure that the Personnel Administrative Measures (PAM) is implemented. In terms of PAM quintile 2 schools do not qualify for teacher incentives.
Under cross examination, Matloga reiterated that Makhwese Secondary School does not qualify for teacher incentives, because it is a quintile 2 school, a school which is not the poorest, but next to the poorest.
Analysis of the evidence and arguments
7. In terms of Section 193 (4) of the Labour Relations Act, 66 of 1995 as amended, an Arbitrator appointed in terms of this Act may determine any unfair labour practice dispute on terms the Arbitrator deems reasonable. The applicants referred an unfair labour practice dispute related to benefits. They alleged that the respondent is failing to pay them Teacher Incentive even when their school qualifies.
8. The applicants’ testimony was that they qualified for the payment of Teacher Incentives, because their school is quintile 2. According to the applicants, quintile 2 schools qualify for teacher incentives as per Personnel Administrative Measures (PAM). The applicant went further to testify that some schools around theirs are getting these incentives and in some matters the Commissioners stated that even quintile 2 schools do qualify for teacher incentives.
9. The respondent disputed the evidence of the applicants by testifying that the applicants do not qualify for Teacher Incentives, because their school is quintile 2. The respondent relied on the Departmental Circular No. 71 of 2017, wherein the Head of Department put the criteria for qualifying for teacher incentives. The circular in paragraph 2 states that, only schools which are quintile 1 and have a weighted distance of 140 kilometers and above qualify for these teacher incentives. According to the respondent this circular 71 of 2017 was issued in order to explaining how the national policy on Teacher Incentives should be implemented.
10. Departmental Circular No. 71 of 2017, paragraph 2 states that ‘’The criteria determined by this Department where certain posts will be identified for incentives are:
2.1 Quintile 1 school and
2.2 Weighted distance of 140km and more’’.
It is common cause that the weighted distance of Makhwese Secondary School is above 140 kilometers and it is a quintile 2 school. In terms of the above mentioned circular only quintile 1 school qualify. During cross examination, the applicants conceded that in terms of this Circular, they do not qualify for teacher incentives, but in terms of PAM, they do. The testimony of the respondent to the effect that, the circular is explaining how as a province they should implement PAM is believable. The fact that the circular was on the letter head of the department and signed by the Head of Department makes me to believe that it is authentic. I could not believe the applicants’ testimony that the circular is unauthentic, because it was not stamped. The applicants should have challenged the authenticity of the circular in 2017, the time it was issued. I also could not rely on the testimony of the applicants in relation to the other matters where the Commissioner awarded in favour of the applicants, because the applicants never led any evidence which showed the similarities of those matters to this one. The only evidence led, which to me was not enough was that all the schools in those matters were quintile 2.
11. In any unfair labour practice dispute, the burden of prove rest with the applicants. The applicants had to prove that their school, Makhwese Secondary School qualifies for Teacher Incentives and the respondent has unfairly failed to pay them that Teacher Incentives. It is therefore my finding that the applicants have on the balance of probabilities failed to prove that the respondent has committed an unfair labour practice related to benefits by failing to pay them Teacher Incentives. The applicants do not qualify for Teacher Incentives.
12. I find that the respondent, Limpopo Department of Education did not commit an unfair labour practice related to benefits against the applicants, Ramakgwakgwa T.M, Malatji M.N, Malatji N.A, Malatji E.M, Mokgotho N.M, Kadiaka M.L, Mogofe R.E, Mabelane E, Ndimana A, Malapane R.M and Sebake M.F.
13. The applicants’ case is dismissed.