ELRC644-20/21 EC
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ELRC121-21/22EC
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Award Date:
16 September 2021
EDUCATION LABOUR RELATIONS COUNCIL
Date: 16 September 2021
CASE NO: ELRC121-21/22EC
In the matter between:
K.A. NTAMO APPLICANT
And
DEPARTMENT OF EDUCATION: EASTERN CAPE RESPONDENT
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(iv) of the Labour Relations Act No. 66 of 1995, as amended (the LRA). The Applicant, Mr K. A. Ntamo appeared in person and the Respondent, Department of Education:Eastern Cape was represented by Mr Walter Hena, the Labour Relations Officer.
2. The proceedings were held virtually through Zoom and were recorded electronically.
BACKGROUND TO THE DISPUTE
3. The Applicant holds the position of Principal at Imizamo High School in Mdantsane in the Buffalo City District. The school was upgraded as of July 2017 and a Deputy Principal was appointed in line with the upgrade of the school. The Respondent, however, failed to upgrade the principal’s position whilst it qualified for an upgrade. The Applicant therefore seeks upgrading of the principal’s position from post level 2 to post level 4, with backpay.
EVIDENCE AND ARGUMENT
4. Both parties agreed that the Applicant indeed is a Principal at Imizamo High School in the Buffalo City District. The school was indeed upgraded as of July 2019 and that the principal’s position was not upgraded. They both agreed that the principal’s position, held by the Applicant, be upgraded from Post Level 2 to Post Level 4 with backpay, with effect from July 2019.
5. The Applicant is a Post Level 2 at a salary of R432 129. 00 (R36 010.75 per month) and seeks to be moved to Post Level 4 at an entry level salary of R571 188.00 (R47 599.00 per month). He must therefore be paid the difference he would have earned from July 2019 to the date of this award. Such difference translates to R11 588.25 per month multiplied by 27 months including September 2021. The total amount due to the Applicant, in lieu of backpay is therefore R312 882.75.
6. The Respondent is not opposed to the proposed remedy and seeks an arbitration award to that effect.
ANALYSIS OF SUBMISSIONS
7. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices, giving effect to section 23 of the Constitution of the Republic of South Africa. This dispute is referred as an unfair labour practice dispute in which the onus rests on the employee to prove the conduct complained of.
8. In the matter of National Union of Mineworkers obo Coetzee v Eskom Holdings SOC Ltd and others [2020] 2 BLLR 125 (LAC), the LAC dealt with appeal regarding regrading/upgrading of posts. At paragraph [29] in the appeal the employee stated that since his appointment he had been performing the duties of a senior warehouse supervisor T12 and is still supervising the stores operations function. He asked to be appointed to the position as per the migration principles. He also alleged that he had been treated unfairly because “I was told that I will be upgraded to the current grading because the work that I am performing.” The other employees in the appeals stated that they were performed the duties of warehouse supervisor and want to be upgraded to T10 as per the migration principles. At paragraph [41] of the judgement it was recorded from the commissioner’s award that he formulated the issue of determination to be whether Eskom (committed an unfair labour practice in respect of the appellants’ claims for post reclassification.” The Commissioner in his award concluded that the dispute was (one concerning upgrading of posts” and that such dispute to be categorised as an unfair labour practice dispute in terms of section 186(2)(s) of the LRA, then one allegedly involving unfair conduct “relating to provision of benefits to an employee” in that should the job be upgraded, the employees will receive better benefits, being at an advantage or privilege to which an employee is entitled as a right or granted in terms of policy or practice subject to the employer’s discretion. The referral to arbitration intimated that the dispute related to promotion, and the Commissioner was satisfied that the documentation overall made it clear that the employee’s was seeking “upgrading the level at which they claim to be operating”. On across appeal by Eskom against the finding of the Labour Court that the dispute involve unfair labour practice relating to promotion. The LAC held that the failure to properly upgrade an employee in relation to the provision of benefits for simple reasons that benefits (include status, remuneration, eligibility for promotion etc” are normally determine by a grade. As Ms Harvey, on behalf, correctly submitted, an employee who complains that his or her job is wrong regraded does not seek promotion to a new, higher or different job. Any regrading of the job to coincide with the actual work done does not change the job content.
9. In this matter it is common cause that the Applicant was due for an upgrade in line with the upgrade of the school, for which he is the principal. The evidence presented is not contested by the Respondent, as they indicated they seek an award giving effect to the issues agreed upon by the parties as common cause. I must therefore find that the Respondent committed an unfair labour practice relating to benefits in not upgrading the Applicant’s position to Post Level 4 and adjust his remuneration accordingly.
10. In the circumstances, I must grant the remedy as prayed for by the Applicant and agreed upon by the Respondent as outlined in paragraph 5 above.
AWARD
11. The Respondent, Department of Education : Eastern Cape, committed an unfair labour practice relating to benefits in not upgrading the position of Principal at Imizamo High School, held by the Applicant, K. A. Ntamo.
12. The Respondent, Department of Education, is ordered to upgrade the Applicant’s position from Post Level 2 (R432 129. 00) to Post Level 4 (R571 188.00), with effect from July 2019 and compliance to be affected by no later than 31 October 2021.
13. Due to the retrospective nature of the upgrade, it follows therefore that the Respondent, Department of Education, pay to the Applicant, K. A. Ntamo, backpay of the difference in salary the Applicant would have earned effective from July 2019 up to and including September 2021, which is a total of 27 months.
14. The difference amounts to R312 882.75 at a monthly amount of R11 588.25 per month calculated from July 2019 to September 2021 (amounting to 27 months).
15. The Respondent, Department of Education, is ordered to pay the backpay to the Applicant, K. A. Ntamo, by no later than 31 October 2021
P. Ndabambi (signed)
PUMEZA NDABAMBI
PANELLIST
Date: 16 September 2021
CASE NO: ELRC121-21/22EC
In the matter between:
K.A. NTAMO APPLICANT
And
DEPARTMENT OF EDUCATION: EASTERN CAPE RESPONDENT
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(iv) of the Labour Relations Act No. 66 of 1995, as amended (the LRA). The Applicant, Mr K. A. Ntamo appeared in person and the Respondent, Department of Education:Eastern Cape was represented by Mr Walter Hena, the Labour Relations Officer.
2. The proceedings were held virtually through Zoom and were recorded electronically.
BACKGROUND TO THE DISPUTE
3. The Applicant holds the position of Principal at Imizamo High School in Mdantsane in the Buffalo City District. The school was upgraded as of July 2017 and a Deputy Principal was appointed in line with the upgrade of the school. The Respondent, however, failed to upgrade the principal’s position whilst it qualified for an upgrade. The Applicant therefore seeks upgrading of the principal’s position from post level 2 to post level 4, with backpay.
EVIDENCE AND ARGUMENT
4. Both parties agreed that the Applicant indeed is a Principal at Imizamo High School in the Buffalo City District. The school was indeed upgraded as of July 2019 and that the principal’s position was not upgraded. They both agreed that the principal’s position, held by the Applicant, be upgraded from Post Level 2 to Post Level 4 with backpay, with effect from July 2019.
5. The Applicant is a Post Level 2 at a salary of R432 129. 00 (R36 010.75 per month) and seeks to be moved to Post Level 4 at an entry level salary of R571 188.00 (R47 599.00 per month). He must therefore be paid the difference he would have earned from July 2019 to the date of this award. Such difference translates to R11 588.25 per month multiplied by 27 months including September 2021. The total amount due to the Applicant, in lieu of backpay is therefore R312 882.75.
6. The Respondent is not opposed to the proposed remedy and seeks an arbitration award to that effect.
ANALYSIS OF SUBMISSIONS
7. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices, giving effect to section 23 of the Constitution of the Republic of South Africa. This dispute is referred as an unfair labour practice dispute in which the onus rests on the employee to prove the conduct complained of.
8. In the matter of National Union of Mineworkers obo Coetzee v Eskom Holdings SOC Ltd and others [2020] 2 BLLR 125 (LAC), the LAC dealt with appeal regarding regrading/upgrading of posts. At paragraph [29] in the appeal the employee stated that since his appointment he had been performing the duties of a senior warehouse supervisor T12 and is still supervising the stores operations function. He asked to be appointed to the position as per the migration principles. He also alleged that he had been treated unfairly because “I was told that I will be upgraded to the current grading because the work that I am performing.” The other employees in the appeals stated that they were performed the duties of warehouse supervisor and want to be upgraded to T10 as per the migration principles. At paragraph [41] of the judgement it was recorded from the commissioner’s award that he formulated the issue of determination to be whether Eskom (committed an unfair labour practice in respect of the appellants’ claims for post reclassification.” The Commissioner in his award concluded that the dispute was (one concerning upgrading of posts” and that such dispute to be categorised as an unfair labour practice dispute in terms of section 186(2)(s) of the LRA, then one allegedly involving unfair conduct “relating to provision of benefits to an employee” in that should the job be upgraded, the employees will receive better benefits, being at an advantage or privilege to which an employee is entitled as a right or granted in terms of policy or practice subject to the employer’s discretion. The referral to arbitration intimated that the dispute related to promotion, and the Commissioner was satisfied that the documentation overall made it clear that the employee’s was seeking “upgrading the level at which they claim to be operating”. On across appeal by Eskom against the finding of the Labour Court that the dispute involve unfair labour practice relating to promotion. The LAC held that the failure to properly upgrade an employee in relation to the provision of benefits for simple reasons that benefits (include status, remuneration, eligibility for promotion etc” are normally determine by a grade. As Ms Harvey, on behalf, correctly submitted, an employee who complains that his or her job is wrong regraded does not seek promotion to a new, higher or different job. Any regrading of the job to coincide with the actual work done does not change the job content.
9. In this matter it is common cause that the Applicant was due for an upgrade in line with the upgrade of the school, for which he is the principal. The evidence presented is not contested by the Respondent, as they indicated they seek an award giving effect to the issues agreed upon by the parties as common cause. I must therefore find that the Respondent committed an unfair labour practice relating to benefits in not upgrading the Applicant’s position to Post Level 4 and adjust his remuneration accordingly.
10. In the circumstances, I must grant the remedy as prayed for by the Applicant and agreed upon by the Respondent as outlined in paragraph 5 above.
AWARD
11. The Respondent, Department of Education : Eastern Cape, committed an unfair labour practice relating to benefits in not upgrading the position of Principal at Imizamo High School, held by the Applicant, K. A. Ntamo.
12. The Respondent, Department of Education, is ordered to upgrade the Applicant’s position from Post Level 2 (R432 129. 00) to Post Level 4 (R571 188.00), with effect from July 2019 and compliance to be affected by no later than 31 October 2021.
13. Due to the retrospective nature of the upgrade, it follows therefore that the Respondent, Department of Education, pay to the Applicant, K. A. Ntamo, backpay of the difference in salary the Applicant would have earned effective from July 2019 up to and including September 2021, which is a total of 27 months.
14. The difference amounts to R312 882.75 at a monthly amount of R11 588.25 per month calculated from July 2019 to September 2021 (amounting to 27 months).
15. The Respondent, Department of Education, is ordered to pay the backpay to the Applicant, K. A. Ntamo, by no later than 31 October 2021
P. Ndabambi (signed)
PUMEZA NDABAMBI
PANELLIST