ELRC235-21/22EC
Award Date:
08 September 2021
Text
Case No ELRC235-21/22EC
In the matter between
NAPTOSA obo KJ Coates Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 27 August 2021
DATE OF AWARD: 08 September 2021
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 64 (4) – Unilateral change to terms and conditions of employment – ELRC Constitution Clause 5 (Read with Clause 17).
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for Arbitration in terms of Section 64 (4) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 5 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (As amended on 26 May 2021). The Arbitration was held on 27 August 2021 via a Virtual Hearing on Zoom.
2. The Applicant, Ms KJ Coates – Persal Nr 54622956, was present and represented by Mr A Adams from the National Professional Teachers’ Organisation of South Africa (NAPTOSA).
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr S Louw (Labour Relations Department).
4. On 15 June 2021 the parties concluded a Pre-Arbitration Meeting Minutes.
5. Due to the nature of the dispute and the fact that everything was common cause the parties requested that the matter be dealt with as a Stated Case.
6. The parties agreed to make their submissions by close of business on Friday 27 August 2021.
ISSUES IN DISPUTE
7. I am required to determine whether the Respondent has unilaterally changed the terms and conditions of employment of the Applicant, and if so, to instruct the Respondent to make the necessary amendments to the Applicant’s salary notch.
BACKGROUND TO THE DISPUTE
8. The Applicant was employed by the Respondent as an Occupational Therapist at Kuyasa Special School with her commencement date being 1 August 2018 on the salary notch R331 179.00 per annum.
9. The Applicant was appointed on the Persal system on the salary notch R317 179.00 per annum.
10. The Applicant requested that her salary notch be corrected on the Persal system back dated to 1 August 2018 and she be paid back pay from 1 August 2018 to date.
SURVEY OF EVIDENCE AND ARGUMENT
11. According to the Pre-Arbitration Minutes it is common cause between the parties:
- That the Applicant was offered the post of Occupational Therapist at Kuyasa Special School with effect from 1 August 2018 on salary notch R331 179.00 per annum.
- That the Applicant was appointed on the Persal system on salary notch R317 179.00 which meant the Applicant was underpaid and this has had an effect on her Grade Progressions and salary adjustments.
12. Due to the fact that everything is common cause the parties submitted a common bundle.
13. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
14. The Applicant’s Representative stated, amongst other things, the following in his submissions:
- That the Applicant was appointed with effect from 1 August 2018 at Kuyasa Special School.
- That the Applicant had accepted the offer on salary notch R331 179.00 per annum.
- That the Respondent had appointed the Applicant on salary notch R317 811 per annum.
- That the Applicant seeks to be appointed on the correct salary notch of R331 179.00 retrospectively from 1 August 2018.
- That the Respondent pay the Applicant the difference between the remuneration and benefits she would have earned had she been appointed on the correct salary notch on 1 August 2018.
The Respondent’s Submissions
15. The Respondent’s Representative stated the following in his submissions:
“THE ECDOE ACCEPTS AND ACKNOWLEDGE AS PER THE APPOINTMENT LETTER, THE APPLICANT WAS APPOINTED ON THE INCORRECT SALALRY NOTCH AND ENTITLED TO ANY BACKPAY RETROPECTIVELY TO 1 AUGUST 2018”.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
16. The dispute before the Council is whether the Respondent unilaterally changed the terms and conditions of the Applicant’s employment.
17. From the submissions made by the parties it is evident that the dispute before the Council does not reside under the auspices of Section 64 (4) of the LRA (Clause 5 of the Constitution) - Unilateral change to terms and conditions of employment and I therefore lack the necessary jurisdiction to proceed with the matter to Arbitration.
18. The matter may be better served under a Dispute for the Interpretation and Application of the collective agreement that specifically deals with salary notches.
AWARD
19. The matter is dismissed.
Panellist: AW Howden
ELRC
In the matter between
NAPTOSA obo KJ Coates Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 27 August 2021
DATE OF AWARD: 08 September 2021
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 64 (4) – Unilateral change to terms and conditions of employment – ELRC Constitution Clause 5 (Read with Clause 17).
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for Arbitration in terms of Section 64 (4) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 5 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (As amended on 26 May 2021). The Arbitration was held on 27 August 2021 via a Virtual Hearing on Zoom.
2. The Applicant, Ms KJ Coates – Persal Nr 54622956, was present and represented by Mr A Adams from the National Professional Teachers’ Organisation of South Africa (NAPTOSA).
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr S Louw (Labour Relations Department).
4. On 15 June 2021 the parties concluded a Pre-Arbitration Meeting Minutes.
5. Due to the nature of the dispute and the fact that everything was common cause the parties requested that the matter be dealt with as a Stated Case.
6. The parties agreed to make their submissions by close of business on Friday 27 August 2021.
ISSUES IN DISPUTE
7. I am required to determine whether the Respondent has unilaterally changed the terms and conditions of employment of the Applicant, and if so, to instruct the Respondent to make the necessary amendments to the Applicant’s salary notch.
BACKGROUND TO THE DISPUTE
8. The Applicant was employed by the Respondent as an Occupational Therapist at Kuyasa Special School with her commencement date being 1 August 2018 on the salary notch R331 179.00 per annum.
9. The Applicant was appointed on the Persal system on the salary notch R317 179.00 per annum.
10. The Applicant requested that her salary notch be corrected on the Persal system back dated to 1 August 2018 and she be paid back pay from 1 August 2018 to date.
SURVEY OF EVIDENCE AND ARGUMENT
11. According to the Pre-Arbitration Minutes it is common cause between the parties:
- That the Applicant was offered the post of Occupational Therapist at Kuyasa Special School with effect from 1 August 2018 on salary notch R331 179.00 per annum.
- That the Applicant was appointed on the Persal system on salary notch R317 179.00 which meant the Applicant was underpaid and this has had an effect on her Grade Progressions and salary adjustments.
12. Due to the fact that everything is common cause the parties submitted a common bundle.
13. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
14. The Applicant’s Representative stated, amongst other things, the following in his submissions:
- That the Applicant was appointed with effect from 1 August 2018 at Kuyasa Special School.
- That the Applicant had accepted the offer on salary notch R331 179.00 per annum.
- That the Respondent had appointed the Applicant on salary notch R317 811 per annum.
- That the Applicant seeks to be appointed on the correct salary notch of R331 179.00 retrospectively from 1 August 2018.
- That the Respondent pay the Applicant the difference between the remuneration and benefits she would have earned had she been appointed on the correct salary notch on 1 August 2018.
The Respondent’s Submissions
15. The Respondent’s Representative stated the following in his submissions:
“THE ECDOE ACCEPTS AND ACKNOWLEDGE AS PER THE APPOINTMENT LETTER, THE APPLICANT WAS APPOINTED ON THE INCORRECT SALALRY NOTCH AND ENTITLED TO ANY BACKPAY RETROPECTIVELY TO 1 AUGUST 2018”.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
16. The dispute before the Council is whether the Respondent unilaterally changed the terms and conditions of the Applicant’s employment.
17. From the submissions made by the parties it is evident that the dispute before the Council does not reside under the auspices of Section 64 (4) of the LRA (Clause 5 of the Constitution) - Unilateral change to terms and conditions of employment and I therefore lack the necessary jurisdiction to proceed with the matter to Arbitration.
18. The matter may be better served under a Dispute for the Interpretation and Application of the collective agreement that specifically deals with salary notches.
AWARD
19. The matter is dismissed.
Panellist: AW Howden
ELRC
ELRC 302 -20 /21 NW
Text