Panelist: Clint Enslin
Case No.: ELRC558-20/21EC
Date of Award: 11 July 2021
In the ARBITRATION between:
(Union / Applicant)
Department of Education: Eastern Cape
Applicant’s representative: Mr Kwanele Ntantala
Applicant’s address: 39 Balfour Road
East London Telephone: 073 662 3275
Telefax: 086 527 7426
Respondent’s representative: Mr Asuduma Buyana
Respondent’s address: Department of Education Eastern Cape
Telephone: 083 372 6768
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 7 April, 4 May, 22 June and 25 June 2021. The proceedings were electronically recorded.
2. The Applicant, Mr Kabane, was represented by Mr Kwanele Ntantala, an attorney from Maphosa and Associates. The Respondent, Department of Education – Eastern Cape was represented by Mr Asuduma Buyana, an Assistant Director - Labour Relations, of the department.
ISSUE TO BE DECIDED
3. Whether the Respondent’s failure to pay the Applicant progression pay, amounts to an unfair labour practice as per Section 186(2)(a) of the LRA.
4. If so, determine appropriate relief.
BACKGROUND TO THE ISSUES
5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
5.1 The Applicant is employed as an educator.
5.2 The Applicant commenced employment with the Respondent on 13 February 1991.
5.3 The Applicant currently earns a gross salary of R 21 797, 00 per month.
5.4 The Applicant had not been paid progression pay from 2014 to date.
5.5 By not receiving pay progression, the Applicant’s pay adjustments were also affected. The cumulative amounts (adjustment and pay progression ) the Applicant would have lost, by not receiving pay progression, are as contained in the document marked RESP “F”. They were:
5.5.1 1 July 2015 to 31 March 2016 = R2529,00
5.5.2 1 April 2016 to 31 March 2017 = (R2721,00 + R2736,00) = R5457,00
5.5.3 1 April 2017 to 31 March 2018 = (R2922,00 + R5856,00) = R8778,00
5.5.4 1 April 2018 to 31 March 2019 = (R6237,00 + R9366,00) = R15603,00
5.5.5 1 April 2019 to 31 March 2020 = (R9927,00 + R9957,00) = R19884,00
5.5.6 The total amount that would be owing, if the Applicant had received his progression pay for the period in question, would be the sum of the amounts contained in the right hand column of RESP “F” and as is reflected in 5.5.1 to 5.5.5 above.
5.5.7 All such amounts would have been subject to normal deductions.
6. The Applicant handed in a bundle of documents, consisting of three pages. The first two pages were marked “ZK1” and the last page was marked “ZK2” The Respondent handed in a document, which I marked RESP “F”.
7. The Applicant seeks payment of pay progression for the years 2014 to date.
8. The parties submitted written closing arguments.
SURVEY OF EVIDENCE AND ARGUMENT
9. This is a brief summary of the relevant evidence and arguments considered as provided for in terms of Section 138(7)(a) of the LRA, pertinent to the dispute.
Mr Kabane – Applicant’s 1st witness
10. Mr Kabane, the Applicant in the matter, testified that he felt that he was unfairly treated by the Respondent. During 2008 he became visually impaired and was reskilled. During 2012, he was moved to do work at the Respondent’s office and still received his progression pay. He was not given any reason for his move to the office. He was thereafter sent back to his original mainstream school and informed that this was pending a post in a suitable school. From 2014 to date, he had not received progression pay.
11. He had lodged a grievance about the issue in 2019. The outcome of the grievance was that the Respondent agreed to pay him the progression pay from 2014 onwards. The Respondent had failed to action this outcome and he had not been paid. The Respondent had also never placed him in a suitable school. He was unable to perform in a mainstream school as he was visually impaired and had not been given any assistance.
12. The “ZK1” two-page document was the grievance he had submitted and the outcome thereof. The Respondent had told him that the outcome would be implemented, but had never done so. He wanted the Respondent to honour the outcome/recommendation and pay the monies due to him.
13. The Applicant confirmed that his understanding was that all educators were entitled to be paid pay progression. In order to qualify for same, an educator must obtain certain scores. He was unable to attain same as, despite his visual impairment, he was placed at a mainstream school. He understood that pay progression was a performance incentive and that a certain level of performance was required in order to be entitled to it, but felt that his environment was not conducive to him performing at the required standard. He agreed that since 2014 he had not met the required level, but believed that if he was placed in a conducive environment he would have met the required level. He also agreed that he did not have any scores for the period he was claiming.
14. He confirmed that prior to 2014 there had been evidence of his performance that was submitted by his seniors. During 2012 he had been office bound, but had still received the progression pay. No evidence of performance had been submitted from 2014 onwards, but he felt this was due to his misplacement at a mainstream school. He had received his full salary for all the years.
15. He confirmed that he had used the document marked “ZK 2” for his calculations and conceded that this document was not a monthly salary advice and could not be relied upon for calculation and as such his calculation would be inaccurate.
16. He was not aware of anyone with similar conditions being placed at a mainstream school.
Mr Ncedisa Mgidlana – Applicant’s 2nd witness
17. Mr Mgidlana testified that he was an Assistant Director, Labour Relations, of the Respondent. He was familiar with the document marked “ZK1”, which had been received on 18 February 2019. He confirmed that it was his name and signature reflected on the second page of this document and that next to his signature the document was dated 16 May 2019.
18. He was aware that the Applicant had brought the case as he had not been paid progression pay since 2014. They had resolved that the Respondent must consider payment of the claimed monies to the Applicant. He was not aware why the Respondent had not done so.
19. They had arrived at their resolution as they believed the Applicant was practically blind and as such had no work to do at the school. He had been taken for retraining and to the district office. He was placed back at the mainstream school with the view of looking for a suitable school. This had not happened and they felt that he was prejudiced as a result of this. He was further of the view that this was unfair.
20. He confirmed that the grievance committee, in the matter, consisted of himself, as the chairperson, and two other members. The Applicant was represented in the process, but there was no one present to represent the Respondent’s view. He further confirmed that no one present in the meeting worked with IQMS, which regulates the policy dealing with pay progression and as such no one present had specialist knowledge of the IQMS. He conceded that the decision had therefore been taken outside the presence of a specialist in IQMS.
21. He further confirmed that they had made a recommendation and that such recommendation was subject to approval as any decision with financial implications is subject to approval. He agreed that, in any performance based incentive, there must be proof of performance and that the Applicant had not submitted any scores. He believed the Applicant should be paid though as his case was different and the fact that the Applicant was not doing anything was not of his own making. He, however, agreed that both parties have a responsibility in the evaluation process.
22. The Applicant’s representative argued that the Applicant had continued to receive his pay progression after becoming visually impaired in 2008 also whilst stationed at the office during 2012 and 2013. Since 2014 he has been placed at his initial mainstream school, which is not conducive to him, and despite numerous requests, complaints and follow ups, he has not been paid any pay progression. The Applicant then lodged a grievance and on 16 May 2019. The grievance committee resolved that the Applicant must be considered for pay progression as from 2014.
23. The Applicant’s representative referred to the case of Arries v CCMA  11 BLLR 1062 [LC] where the court defined the term “unfair” to imply a failure by the employer to meet an objective standard and may be taken to include arbitrary, capricious, biased or inconsistent conduct, or conduct based on insubstantial reasons or wrong principles, whether negligent or intended.”
24. Reference was also made to the case of City of Cape Town v SA Municipal Workers Union obo Sylvester and Others, where it was confirmed that the overall test in disputes of alleged unfair labour practice is one of fairness.
25. They The Applicant believed that the Respondent’s actions were unfair as in their view the Respondent had an obligation to place the Applicant at a school which was suitable to his condition in order for him to be able to perform and be assessed. This they he argued, made it virtually impossible for the Applicant to perform his duties and be assessed. The expectation of the Respondent, for the Applicant to be assessed and obtain scores above 50 in terms of the IQMS policy was therefore unreasonable and unfair.
Ms Bulelwa Lindani – Respondent’s witness.
26. Ms Lindani testified that she had previously been a Senior Education Specialist - IQMS implementation and that since 1 April 2021, she has held the position of a Senior Education Specialist – Learner Enrichment.
27. She confirmed that an educator that has an average score that is acceptable, which has been captured by the school and submitted to the district office is entitled to progression pay. If no scores are submitted there will be no payment made.
28. She had knowledge of the IQMS policy and the said policy provided for payment upon submission of acceptable scores. Educators that obtained scores above 50, which was level 4 (outstanding), were entitled to the progression pay. Pay progression was 1,5% if the employee qualified. It used to be 1%, but was moved up to 1,5%. She was not certain when this increase in percentage had taken place.
29. As far as she was aware, it had never happened that a person had not met the 50 or above requirement as the employee first does a self-evaluation. The school submits the scores to the department. They also then submit a list of employees not evaluated with reasons therefore. The policy makes provision for default payment if the reason for non-evaluation is acceptable. This would explain why the Applicant received his progression pay whilst stationed at the district office. If no evaluation was done and acceptable reasons were submitted, the employee’s last scores would be used.
30. Once the Applicant was moved from the office back to the school, continued payment of the progression pay would depend on the school submitting evaluations or valid reasons for non-evaluations. These evaluations are done annually. She believed it would be unfair for a visually impaired person not to receive the progression pay if they did not meet the 50 or above requirement. The school was responsible for submitting reasons for non-evaluation.
31. She confirmed that, in her view if an educator was denied progression pay due to blindness it would be prejudicial. If there was no evaluation, or if the employee declined to be evaluated, the school must submit reasons therefore to the department. If the school fails to do so, the employee report it to his/her union to deal with at school level or fill out a grievance.
32. The Respondent’s representative argued that the Applicant had conceded to doing nothing at the school, for the period in question, and yet was claiming progression pay. This despite having conceded that for an educator to be entitled to progression pay, there must be evidence, in the form of scores, that must be submitted to the department. The Applicant had further conceded to being paid his full salary for the period.
33. He argued further that Mr Mgidlana had agreed that the outcome of the grievance meeting was a recommendation and that no one represented the Respondent in this process. As such, the recommendation was made after only hearing the Employee’s side. The recommendation was also made without the input of anyone with specialist knowledge of the IQMS system. The Applicant had not submitted anything to the department. The Applicant had failed to prove that he had met the requirements to receive pay progression. The Applicant had further failed to show any act or omission by the Respondent, which would amount to an unfair labour practice in terms of Section 186(2)(a) of the LRA, relating to benefits. The Respondent’s representative argued that that the matter should therefore be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
34. Section 186(2) of the LRA states that “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 the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of a benefit to an employee. (Own underlining)
35. The payment of pay progression is performance-based and is subject to a specified process and the educator meeting a set performance standard. The educator must obtain a mark of 50 or above in the evaluation in order to qualify for the progression pay. An educator is evaluated on what they do in class as well on their extra mural activities.
36. Ms Lindani, who is experienced in the IQMS policies, confirmed that if there was no evaluation done for an employee, the school would need to send confirmation of this together with the reasons therefore. She also confirmed that if the reason given was acceptable, the policy made provision for default payment.
37. If the educator does not receive pay progression, which may be due to the Principal of the school failing to submit reasons for non-evaluation, the educator can submit a grievance. The Applicant did in fact submit a grievance relating to the non-payment of his progression pay. Whilst I accept that the outcome of such grievance is subject to approval by the Respondent, particularly where it has a monetary implication, the Applicant has, in my view, attempted to use of the mechanism available to him.
38. The Applicant is visually impaired. He has been given no assistance and is placed at a mainstream school. Given these facts, the question is whether or not it is fair to expect him to perform to the standard required of an educator who is not visually impaired?
39. To my mind, the answer to this is no. The evaluation is performance-based. The Applicant, through no fault of his own, is placed in an environment where is it is extremely difficult, if not impossible, for him to perform to the required standard. The Respondent has not placed him in an environment where he has a fair chance of meeting the required standard. TheyThe Respondent have has also not given him any assistance in order for him to be in a position to meet the standard required in the environment he has been placed in. The standard he is being measured against does not take cognisance of the effect of his visual impairment on his ability to meet the required standards.
40. The process starts with the educator evaluating him/herself, however, I believe that given the visual impairment of the Applicant, this would be problematic. Even if the Applicant was capable of evaluating himself, which I do not believe he is, it is clear that he would in all probability not be able to meet the standards set, given his situation.
41. It would appear that the Respondent’s policy acknowledges that there may be instances where a proper evaluation of the educator, against the required performance standards, is not possible. For this, as testified to by Ms Lindani, there is a provision for default payment to be made if the school (Principal) supplies satisfactory reasons for the non-evaluation. If the Principal fails to do so, the educator can submit a grievance, which the Applicant did. Given the circumstances of this case, I cannot see how any fair evaluation could take place. This appears to be a prime example of a situation which such default payment is designed to cater for.
42. In summary, whilst I am of the view that it is the prerogative of any employer to set performance standards required of an employee, particularly where the meeting of such standards is coupled with a benefit/payment of some kind, the required performance standard must be capable of achievement by all being evaluated against this standard. If, as in this case, the employee is to be measured against a standard which he/she cannot attain, due to no fault of his/her own, I believe it is unfair.
43. The Respondent has therefore committed an unfair labour practice against the Applicant, by not paying the Applicant’s pay progression.
44. The Respondent, the Department of Education: Eastern Cape, has committed an unfair labour practice, in terms of Section 186(2)(a) of the LRA - relating to benefits, against the Applicant, Mr Zukile Kabane, by not paying him pay progression since 2014.
45. The Respondent, the Department of Education: Eastern Cape, is ordered to pay the Applicant, Mr Zukile Kabane, an amount of R52 221,00, less normal deductions.
46. The amount, as referred to in paragraph 45, must be paid to the Applicant by no later than 31 July 2021.
47. The Respondent, the Department of Education: Eastern Cape, must place the Applicant on a corrected salary scale of R R338 472,00 per annum, effective 31 March 2020. Any increments or pay progression which may be due after 31 March 2020, must be calculated using the amount of R338 472,00 per annum as the starting/base amount for such calculations.
Name: Clint Enslin