ELRC644-20/21 EC
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ELRC228-20/21EC
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Award Date:
12 October 2021
Panelist: Clint Enslin
Case No.: ELRC228-20/21EC
Date of Award: 12 October 2021
In the ARBITRATION between:
NAPTOSA obo A Dewitt and 4 others
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Ms Elrene Hart
Applicant’s address: 28, 6th Avenue
Newton Park
Port Elizabeth, 6005 Telephone: 041 3640399 / 082 9291501
Telefax: 041 3640510
Email ssec1@naptosa.org.za / antona@naptosa.org.za
Respondent’s representative: Ms Hendriena Stucki
Respondent’s address: Department of Education Eastern Cape
Port Elizabeth District
Telephone: 082 9294826
Telefax:
Email stuckihc@gmail.com
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 8 October 2021 and the proceedings were electronically recorded.
2. The Applicants, Ms Abigail de Witt, Ms Marissa van der Merwe, Ms Aneekoh Abrahams, Ms Magdelena Holloway and Ms Tania Roe were represented by Ms Elrene Hart, an official from NAPTOSA. The Respondent, Department of Education – Eastern Cape was represented by Ms Hendriena Stucki, a Labour Relations Officer. Ms Moira Coetzee, a Senior Education Specialist – HR, from the Respondent, was also present.
ISSUE TO BE DECIDED
3. Whether the Respondent’s failure to pay the Applicants’ pay progression and/or grade progression, 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 matters under case numbers ELRC228-20/21EC and ELRC61-21/22EC were consolidated under ELRC228-20/21EC.
6. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
6.1 The Applicants are all Education Therapists.
6.2 The Applicants start dates and PERSAL numbers are as follows:
3.2.1 A Dewitt - 18 February 2007 / 51398389
3.2.2 M van der Merwe – 1 April 2016 / 55929231
3.2.3 A Abrahams – 18 January 1985 / 50087631
3.2.4 M Halloway – 1 January 2007 / 54344719
3.2.5 T Roe – 1 January 2007 / 50095901
6.3 Ms Dewitt is owed pay progression for 2011, 2012, 2013, 2014, 2016, 2017, 2018, 2019 and 2020. She met all requirements for grade progression on 18 February 2019. Her correct salary notch should be R378 408 per annum. She is owed a total amount of R288 029.25, less normal deductions.
6.4 Ms van der Merwe is owed pay progression for 2019 and 2020. Her correct salary notch should be R326 064 per annum. She is owed a total amount of R14 051.00, less normal deductions.
6.5 Ms Abrahams is owed pay progression for 2014, 2015, 2016, 2017, 2018, 2019 and 2020. Her correct salary notch should be R509 688 per annum. She is owed a total amount of R222 948.25, less normal deductions.
6.6 Ms Halloway is owed pay progression for 2016, 2017, 2018, 2019 and 2020. She met all the requirements for grade progression on 30 December 2016. Her correct salary notch should be R389 859 per annum. She is owed a total amount of R204 398.50, less normal deductions.
6.7 Ms Roe is owed pay progression for 2013, 2016, 2017, 2018, 2019 and 2020. She met all the requirements for grade progression on 30 December 2016. Her correct salary notch should be R389 859 per annum. She is owed a total amount of R248 080.50, less normal deductions.
6.8 The Applicants are entitled to pay progression and/or grade progression, in terms of ELRC Collective Agreement 1 of 2012 and ELRC Collective Agreement 4 of 2003.
6.9 Pay progression, grade progression and monies owed in terms thereof amount to a benefit.
7. The Applicants handed in a bundle of documents.
8. The parties also provided a signed pre-arbitration minute as well as an annexure thereto, which sets out the breakdown/calculation of the amounts agreed upon.
SURVEY OF EVIDENCE AND ARGUMENT
9. Both parties were afforded an opportunity to lead any further evidence if they so wished. Both parties indicated that they had no further evidence to lead, as all facts were common cause.
ANALYSIS OF EVIDENCE AND ARGUMENT
10. Section 186(2) of the LRA states “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)
11. It is common cause between the parties that pay progression and grade progression amount to a benefit. The parties’ representatives agreed the enabling legislation and/or policies were ELRC Collective Agreements 1 of 2012 and 4 of 2003.
12. The Respondent agrees that the amounts contained in paragraphs 6.3 to 6.7 are correct and are owing to the Applicants, respectively, by the Respondent. The Respondent further agrees that the Applicants should be on the correct salary notch, respectively, as per the said paragraphs. As a result, I am of the view that the non-payment of the said monies and failure to place the Applicants on their correct salary notches amounts to an Unfair Labour Practice in that it is unfair conduct by the Respondent against the Applicants, relating to benefits, as contemplated in Section 186(2)(a) of the LRA.
13. The Respondent has therefore committed an Unfair Labour Practice against the Applicants.
AWARD
14. The Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice, relating to benefits, against the Applicants, Ms A De Witt, Ms M van der Merwe, Ms A Abrahams, Ms M Halloway and Ms T Roe, by failing to pay their pay progression and/or grade progression.
15. The Respondent, the Department of Education: Eastern Cape, is ordered to pay the Applicants the following amounts, respectively:
15.1 Ms A de Witt (Persal number 51398389) – R288 029.25, less normal deductions.
15.2 Ms M van der Merwe (Persal number 55929231) – R14 051.00, less normal deductions.
15.3 Ms A Abrahams (Persal number 50087631) - R222 948.25, less normal deductions.
15.4 Ms M Halloway (Persal number 54344719) – R204 398.50, less normal deductions.
15.5 Ms T Roe (Persal number 50095901) – R248 080.50, less normal deductions.
16. The amounts as reflected in paragraph 15 above, less normal deductions, must be paid to the Applicants respectively, by no later than 30 November 2021.
17. The Applicants must also be placed on their correct salary notches with immediate effect. The correct salary notches are respectively:
17.1 Ms A de Witt – R378 408 per annum.
17.2 Ms M van der Merwe – R326 064 per annum.
17.3 Ms A Abrahams – R509 688 per annum.
17.4 Ms M Halloway – R389 859 per annum.
17.5 Ms T Roe – R389 859 per annum.
Case No.: ELRC228-20/21EC
Date of Award: 12 October 2021
In the ARBITRATION between:
NAPTOSA obo A Dewitt and 4 others
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Ms Elrene Hart
Applicant’s address: 28, 6th Avenue
Newton Park
Port Elizabeth, 6005 Telephone: 041 3640399 / 082 9291501
Telefax: 041 3640510
Email ssec1@naptosa.org.za / antona@naptosa.org.za
Respondent’s representative: Ms Hendriena Stucki
Respondent’s address: Department of Education Eastern Cape
Port Elizabeth District
Telephone: 082 9294826
Telefax:
Email stuckihc@gmail.com
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 8 October 2021 and the proceedings were electronically recorded.
2. The Applicants, Ms Abigail de Witt, Ms Marissa van der Merwe, Ms Aneekoh Abrahams, Ms Magdelena Holloway and Ms Tania Roe were represented by Ms Elrene Hart, an official from NAPTOSA. The Respondent, Department of Education – Eastern Cape was represented by Ms Hendriena Stucki, a Labour Relations Officer. Ms Moira Coetzee, a Senior Education Specialist – HR, from the Respondent, was also present.
ISSUE TO BE DECIDED
3. Whether the Respondent’s failure to pay the Applicants’ pay progression and/or grade progression, 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 matters under case numbers ELRC228-20/21EC and ELRC61-21/22EC were consolidated under ELRC228-20/21EC.
6. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
6.1 The Applicants are all Education Therapists.
6.2 The Applicants start dates and PERSAL numbers are as follows:
3.2.1 A Dewitt - 18 February 2007 / 51398389
3.2.2 M van der Merwe – 1 April 2016 / 55929231
3.2.3 A Abrahams – 18 January 1985 / 50087631
3.2.4 M Halloway – 1 January 2007 / 54344719
3.2.5 T Roe – 1 January 2007 / 50095901
6.3 Ms Dewitt is owed pay progression for 2011, 2012, 2013, 2014, 2016, 2017, 2018, 2019 and 2020. She met all requirements for grade progression on 18 February 2019. Her correct salary notch should be R378 408 per annum. She is owed a total amount of R288 029.25, less normal deductions.
6.4 Ms van der Merwe is owed pay progression for 2019 and 2020. Her correct salary notch should be R326 064 per annum. She is owed a total amount of R14 051.00, less normal deductions.
6.5 Ms Abrahams is owed pay progression for 2014, 2015, 2016, 2017, 2018, 2019 and 2020. Her correct salary notch should be R509 688 per annum. She is owed a total amount of R222 948.25, less normal deductions.
6.6 Ms Halloway is owed pay progression for 2016, 2017, 2018, 2019 and 2020. She met all the requirements for grade progression on 30 December 2016. Her correct salary notch should be R389 859 per annum. She is owed a total amount of R204 398.50, less normal deductions.
6.7 Ms Roe is owed pay progression for 2013, 2016, 2017, 2018, 2019 and 2020. She met all the requirements for grade progression on 30 December 2016. Her correct salary notch should be R389 859 per annum. She is owed a total amount of R248 080.50, less normal deductions.
6.8 The Applicants are entitled to pay progression and/or grade progression, in terms of ELRC Collective Agreement 1 of 2012 and ELRC Collective Agreement 4 of 2003.
6.9 Pay progression, grade progression and monies owed in terms thereof amount to a benefit.
7. The Applicants handed in a bundle of documents.
8. The parties also provided a signed pre-arbitration minute as well as an annexure thereto, which sets out the breakdown/calculation of the amounts agreed upon.
SURVEY OF EVIDENCE AND ARGUMENT
9. Both parties were afforded an opportunity to lead any further evidence if they so wished. Both parties indicated that they had no further evidence to lead, as all facts were common cause.
ANALYSIS OF EVIDENCE AND ARGUMENT
10. Section 186(2) of the LRA states “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)
11. It is common cause between the parties that pay progression and grade progression amount to a benefit. The parties’ representatives agreed the enabling legislation and/or policies were ELRC Collective Agreements 1 of 2012 and 4 of 2003.
12. The Respondent agrees that the amounts contained in paragraphs 6.3 to 6.7 are correct and are owing to the Applicants, respectively, by the Respondent. The Respondent further agrees that the Applicants should be on the correct salary notch, respectively, as per the said paragraphs. As a result, I am of the view that the non-payment of the said monies and failure to place the Applicants on their correct salary notches amounts to an Unfair Labour Practice in that it is unfair conduct by the Respondent against the Applicants, relating to benefits, as contemplated in Section 186(2)(a) of the LRA.
13. The Respondent has therefore committed an Unfair Labour Practice against the Applicants.
AWARD
14. The Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice, relating to benefits, against the Applicants, Ms A De Witt, Ms M van der Merwe, Ms A Abrahams, Ms M Halloway and Ms T Roe, by failing to pay their pay progression and/or grade progression.
15. The Respondent, the Department of Education: Eastern Cape, is ordered to pay the Applicants the following amounts, respectively:
15.1 Ms A de Witt (Persal number 51398389) – R288 029.25, less normal deductions.
15.2 Ms M van der Merwe (Persal number 55929231) – R14 051.00, less normal deductions.
15.3 Ms A Abrahams (Persal number 50087631) - R222 948.25, less normal deductions.
15.4 Ms M Halloway (Persal number 54344719) – R204 398.50, less normal deductions.
15.5 Ms T Roe (Persal number 50095901) – R248 080.50, less normal deductions.
16. The amounts as reflected in paragraph 15 above, less normal deductions, must be paid to the Applicants respectively, by no later than 30 November 2021.
17. The Applicants must also be placed on their correct salary notches with immediate effect. The correct salary notches are respectively:
17.1 Ms A de Witt – R378 408 per annum.
17.2 Ms M van der Merwe – R326 064 per annum.
17.3 Ms A Abrahams – R509 688 per annum.
17.4 Ms M Halloway – R389 859 per annum.
17.5 Ms T Roe – R389 859 per annum.