Commissioner: Jeffrey Nkuna
Case No. ELRC 433 -20/21 LP
Date of the Award: 30 June 2021
In the matter between:
DEPARTMENT OF EDUCATION: LIMPOPO
DETAILS OF THE HEARING AND REPRESENTATION
1. This award is rendered in terms of section 138(7) of the Labour Relations Act, 66 of 1995 as amended (the LRA).
2. The dispute was referred for arbitration in terms of section 33A of the Labour Relations Act 66 of 1995 as amended (“LRA”) read with Clause 69 of the Dispute Resolution Procedures of the Education Labour Relations Council. The hearing was held virtually on 26 May 2021.
3. The Applicant, Ms Ntsanana (Employee), was represented by Mr I Phala a legal practioner and the Respondent, Limpopo Department of Education (Employer), was not present in the proceedings
4. After having satisfied myself that the Respondent party was properly served with the Notice of Set down , I then proceeded with the arbitration in the absence of the Respondent
5. The hearing was digital recorded and was finalized on the same day.
BACKGROUND TO THE DISPUTE
6. The Employee has been employed by the Employer as an educator from the 01 July 2008 at the Kgalaka Secondary school, Sebediel to date. The Applicant was employed at REQV level 13 which was the minimum entry for Educators who only have Senior Certificate and national teacher’s diploma. The Applicant alleged that in addition to meeting the minimum requirements, she was also in possession of the ABET certificate which would have entitled her to be appointed at REQV Level 14. The Applicant is now claiming to have been remunerated at salary at REQV 14. The relief sought be the Applicant is to be paid the outstanding salary which she would have been entitled, if she was place in a proper level. The amount claimant by the Applicant is the sum of R412 932.00
7. I am required to determine whether the Applicant is entitled to have been paid at REQV 14. If so, I have to order an appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENTS
8. The Applicant, Ms Ntsanana Kekana, testified that she has been employed as an educator by the employer from 01 July 2008 to date. She further testified that during her employment she met the minimum requirements for a post. The requirement for the post were Senior Certificate and the National Diploma in Teaching. She further testified that in addition to the requirements, she also had a certificate in Adult Basic Education (ADET). She was incorrectly placed at REQV 13 which was the level for a person who met the minimum requirements. She further testified that she was supposed to have been placed at REQV level 14, by virtue of the fact that she also had a certificate in ABET. She was placed in the salary notch of R 248 000.00 per annum. She further testified that she was supposed to have been placed at the level salary notch of R280 000.00 per annum. She further testified that she only realized in 2015 that she was placed in an incorrect notch level. She then made some enquiries with the Employer’s circuit office and she discovered that the Employer had all her qualifications in its possession. She was then referred to engage with the District office but her problem could not be resolved. She further testified that, there was a time when the Employer attempted to adjust her salary. However, later she was requested to repay the amount because it was alleged that she was overpaid. The Applicant further testified that the Employer owed her the outstanding salary in the sum of R412 932.00. The amount is calculated as the difference between her current notch salary of REQV 13 and the entry notch of the REQV 14. The difference is that multiplied by the number of years of her employment. The Applicant’s relief is that the Employer be ordered to pay her the amount of R412 932.00.
9. The Respondent was not present and did not make any submissions
ANALYSIS OF THE EVIDENCE AND ARGUMENTS
10. I am required to issue an award with brief reasons. I do not wish to offer an exhaustive survey of all the evidence and arguments presented at the arbitration hearing. I have had regard to everything presented to me, and what follows is a brief summary of the evidence relevant to my findings only.
11. Clause 69.1 of the Constitution of the Education Labour Relations Council provides that: “the General Secretary of the Council may promote, monitor and enforce compliance with any collective agreement of the Council and in terms of section 33 and 33A of the Basics Condition of Employment Act.”
12. Clause 69.2 provides that: “For the purpose of this Article 69, collective agreement of the Council is deemed to include any basic condition of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA”.
13. The Applicant testified that she has been employed by the Employer as an educator from the 01 July 2008 at the Kgalaka secondary school, Sebediel to date. The Applicant was employed at REQV level 13 which was the minimum entry for Educators who only have Senior Certificate and National Teacher’s Diploma. The Applicant alleged that in addition to meeting the minimum requirements, she was also in possession of the ABET certificate which would have entitled her to be appointed at REQV level 14. The Applicant is now claiming the outstanding salary she would have been entitled, should she has been appointed at level REQV 14. The amount claimed by the Applicant is the sum of R412 932.
14. The minimum qualifications requirements for the educators is regulated by the professional administrative matters ( PAM) issued in regard to the terms and conditions of employment of educators determined in terms of section 4 of the Employment of Educators Act 1998. Section B.3.2.1 of PAM provides for the educational qualifications, statutory requirements and experience for the educator positions. The educational qualifications, statutory requirements and experience required for appointment in education for REQV 14 are a recognized four-year qualification, which includes professional teacher education. The Educator should also have a registration with SACE as professional educator.
The evidence placed before me is that the Applicant meets the minimum requirements for appointment in terms of the requirements of REQV 14. The Respondent was not present and did not make any submissions. I only had the benefit of the evidence by the Applicant. I have no reason not to believe her testimony. I therefore, find that the additional qualification of ABET by the Applicant entitled her to have a four year professional qualification.
15. I therefore find that the Respondent owed the Applicant the sum R412 932. The amount is calculated as the difference between her current notch salary of REQV 13 and the entry notch of the REQV 14. The difference is that multiplied by the number of years of her employment. The Applicant’s relief is that the Employer be ordered to pay her the amount of R412 932.00.
16. I accordingly, order that the Department of Education, Limpopo must pay the Applicant, Ms Ntsanana Kekane the sum of R412 932. ( Four Hundred and twelve rand, nine hundred and thirty thousand rand only )
17. The payment of the amount stated in paragraph 16 should be made on or not later than the 15 July 2021
18. As provided for by section 143(2) of the LRA, any unpaid amount due in terms of this award will attract interest at the rate prescribed in terms of section 2 of the Prescribed Rate of Interest, Act 55 of 1975, as from the date on which it was due.
Jeffrey Nkuna: ELRC Commissioner