ELRC644-20/21 EC
Text
ELRC23- 21/22 EC
Text
Award Date:
26 October 2021
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
Case No. ELRC23- 21/22 EC
In the matter between
NAPTOSA obo Jane Ingham Applicant
and
DEPARTMENT OF EDUCATION-EASTERN CAPE Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 27 SEPTEMBER 2021
DATE OF AWARD: 26 OCTOBER 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice is 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 benefits to an employee
SUMMARY: Whether the Applicant has been subjected to an Unfair Labour Practice by the employer’s refusal to place the Applicant on the correct grade level.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on the 27th of September 2021.
2. At the onset of the proceedings, the parties confirmed receipt of the notice of set down.
3. The Applicant requested that the matter proceed to be argued on paper by means of submissions as they averred that there were no disputes of facts.
4. The Applicant was requested to make the necessary Application in consideration of Section 18 of the ELRC Constitution.
5. The parties were directed in terms of when submissions were to be made. The Applicant was to file its submissions no later than the 30th of September 2021 and the Respondent to file its response no later than the 4th of October 2021. Unfortunately, the Applicant only filed on the 4th of October 2021, to which the Respondent did not object to the late filing nor did they file any submissions in opposition to the Applicant’s submissions. The Applicant was directed to explain the lateness to which it did.
THE ISSUES IN DISPUTE
6. Firstly, I am to determine whether the Applicant has made out a case in terms of Section 18 of the ELRC Constitution.
7. Furthermore, I am to determine whether the Applicant was subjected to an unfair labour practice in relation to the employer’s salary/ grade classification of her employment.
THE BACKGROUND TO THE DISPUTE
8. In these proceedings the Applicant referred a dispute pertaining to alleged unfair labour practice.
9. The Applicant is employed by the Respondent as an educational psychologist.
10. The Applicant had applied for the above vacancy in 2018 and was appointed as same in said year.
11. The Applicant complied with all the requirements and further specific requirements of the vacancy.
12. None of the above was disputed by the Respondent.
13. The Applicant’s representative raised that considering there were no disputes of facts, can the matter proceed as a Statement of Case in terms of section 18 of the ELRC Constitution. The latter submission was not disputed by the Respondent’s representative.
SURVEY OF EVIDENCE AND ARGUMENT
14. Before addressing the evidence and arguments subject to the submissions, I will address the Application in terms of section 18 of the ELRC Constitution.
15. After due consideration of the above, a ruling was made directing the parties to file their submissions on specified terms.
16. It is trite that the parties were directed to submit their submissions at a particular time and as such any late or further submissions ought to be done with the direction of the council or the commissioner presiding over the matter.
17. As the presiding commissioner, I anticipated that the party filing submissions after the fact or beyond the directions would have provided reasons for same filing to be condoned to which the Applicant’s representative had addressed correspondence explaining what had disturbed the filing of his submissions on the 30th of September 2021 as directed. To this, the late filing is condoned.
18. Furthermore, I will address fact that the Respondent failed to make any submissions to the contrary of the Applicant’s statement of case.
19. As stated above, the parties were directed to make submissions per a stated case and are to address Council on the applicable law to the matter.
20. Though no witnesses were called to testify, the submissions of the parties shall be considered in relation to their respective cases.
21. Considering that these proceedings were instigated by the Applicant, same party bears the onus of proof therefore I shall consider their submissions first.
22. The Applicant’s Submissions can be summarized as follows:
a. The Applicant applied for a vacancy that specified three grade levels, to which each had its unique requirements.
b. The Applicant qualified for a specific grade however was placed on a grade lower.
c. The Applicant queried her placement and requested that her placement be rectified to reflect her years of experience together with the further requirements she satisfied.
d. The Applicant’s queries were ignored therefore the proceedings before the Council were instigated.
23. The case of the Respondent was not placed before the Council as the Respondent failed to file any submissions.
24. I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
25. It is trite that when a party refers an unfair labour practice dispute, same party bears the onus to prove on a balance of probabilities that such unfair labour practice exists and same is administered against them.
26. Considering this matter, the arguments and submissions before myself will be assessed juxtaposed to the above premise.
27. Section 186(2) of the LRA defines unfair labour practice as meaning:
“any unfair act or omission that arises between an employer and an employee involving:
(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee,
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee,
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement or
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”
28. The Applicant referred this dispute on account of section 186(2)(a) and furthermore relied on ELRC Collective Agreement 1 of 2012 Clause 5.1.10 thereof which speaks to the Recognition of Relevant Experience.
29. In their submissions the Applicant explained how the Respondent ignored the extent of the Applicant’s experience in private practice when deciding which grade to place her upon her appointment.
30. The importance of the grade relates not only to salary however same also refers to the consequent benefits that are attached to the specific vacancy and grade level.
31. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
32. It is not disputed that although the Applicant qualifies for a specific grade level, the Respondent has without any specific justification placed her (the Applicant) incorrectly. The Applicant has furthermore established that the Respondent is failing to comply with the applicable collective agreement.
33. The Applicant has proven that there has been a unjustifiable disparity between the vacancy she qualified for upon her application and the vacancy she is currently recognised by at her employment.
34. In the premises I make the following award.
AWARD
35. I find that the employee has proven that the Respondent has committed an unfair labour practice.
36. The Applicant is to be placed on the correct grade level immediately.
37. The Respondent is to compensate the Applicant accordingly with an amount of no less than R385 617,50 as the sum reflecting the difference in salary and benefits due to her owing to the incorrect placement. The latter amount is to be paid no later than the 30th of November 2021.
Yolisa Ndzuta
Panelist: ELRC
HELD VIRTUALLY
Case No. ELRC23- 21/22 EC
In the matter between
NAPTOSA obo Jane Ingham Applicant
and
DEPARTMENT OF EDUCATION-EASTERN CAPE Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 27 SEPTEMBER 2021
DATE OF AWARD: 26 OCTOBER 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice is 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 benefits to an employee
SUMMARY: Whether the Applicant has been subjected to an Unfair Labour Practice by the employer’s refusal to place the Applicant on the correct grade level.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on the 27th of September 2021.
2. At the onset of the proceedings, the parties confirmed receipt of the notice of set down.
3. The Applicant requested that the matter proceed to be argued on paper by means of submissions as they averred that there were no disputes of facts.
4. The Applicant was requested to make the necessary Application in consideration of Section 18 of the ELRC Constitution.
5. The parties were directed in terms of when submissions were to be made. The Applicant was to file its submissions no later than the 30th of September 2021 and the Respondent to file its response no later than the 4th of October 2021. Unfortunately, the Applicant only filed on the 4th of October 2021, to which the Respondent did not object to the late filing nor did they file any submissions in opposition to the Applicant’s submissions. The Applicant was directed to explain the lateness to which it did.
THE ISSUES IN DISPUTE
6. Firstly, I am to determine whether the Applicant has made out a case in terms of Section 18 of the ELRC Constitution.
7. Furthermore, I am to determine whether the Applicant was subjected to an unfair labour practice in relation to the employer’s salary/ grade classification of her employment.
THE BACKGROUND TO THE DISPUTE
8. In these proceedings the Applicant referred a dispute pertaining to alleged unfair labour practice.
9. The Applicant is employed by the Respondent as an educational psychologist.
10. The Applicant had applied for the above vacancy in 2018 and was appointed as same in said year.
11. The Applicant complied with all the requirements and further specific requirements of the vacancy.
12. None of the above was disputed by the Respondent.
13. The Applicant’s representative raised that considering there were no disputes of facts, can the matter proceed as a Statement of Case in terms of section 18 of the ELRC Constitution. The latter submission was not disputed by the Respondent’s representative.
SURVEY OF EVIDENCE AND ARGUMENT
14. Before addressing the evidence and arguments subject to the submissions, I will address the Application in terms of section 18 of the ELRC Constitution.
15. After due consideration of the above, a ruling was made directing the parties to file their submissions on specified terms.
16. It is trite that the parties were directed to submit their submissions at a particular time and as such any late or further submissions ought to be done with the direction of the council or the commissioner presiding over the matter.
17. As the presiding commissioner, I anticipated that the party filing submissions after the fact or beyond the directions would have provided reasons for same filing to be condoned to which the Applicant’s representative had addressed correspondence explaining what had disturbed the filing of his submissions on the 30th of September 2021 as directed. To this, the late filing is condoned.
18. Furthermore, I will address fact that the Respondent failed to make any submissions to the contrary of the Applicant’s statement of case.
19. As stated above, the parties were directed to make submissions per a stated case and are to address Council on the applicable law to the matter.
20. Though no witnesses were called to testify, the submissions of the parties shall be considered in relation to their respective cases.
21. Considering that these proceedings were instigated by the Applicant, same party bears the onus of proof therefore I shall consider their submissions first.
22. The Applicant’s Submissions can be summarized as follows:
a. The Applicant applied for a vacancy that specified three grade levels, to which each had its unique requirements.
b. The Applicant qualified for a specific grade however was placed on a grade lower.
c. The Applicant queried her placement and requested that her placement be rectified to reflect her years of experience together with the further requirements she satisfied.
d. The Applicant’s queries were ignored therefore the proceedings before the Council were instigated.
23. The case of the Respondent was not placed before the Council as the Respondent failed to file any submissions.
24. I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
25. It is trite that when a party refers an unfair labour practice dispute, same party bears the onus to prove on a balance of probabilities that such unfair labour practice exists and same is administered against them.
26. Considering this matter, the arguments and submissions before myself will be assessed juxtaposed to the above premise.
27. Section 186(2) of the LRA defines unfair labour practice as meaning:
“any unfair act or omission that arises between an employer and an employee involving:
(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee,
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee,
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement or
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”
28. The Applicant referred this dispute on account of section 186(2)(a) and furthermore relied on ELRC Collective Agreement 1 of 2012 Clause 5.1.10 thereof which speaks to the Recognition of Relevant Experience.
29. In their submissions the Applicant explained how the Respondent ignored the extent of the Applicant’s experience in private practice when deciding which grade to place her upon her appointment.
30. The importance of the grade relates not only to salary however same also refers to the consequent benefits that are attached to the specific vacancy and grade level.
31. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
32. It is not disputed that although the Applicant qualifies for a specific grade level, the Respondent has without any specific justification placed her (the Applicant) incorrectly. The Applicant has furthermore established that the Respondent is failing to comply with the applicable collective agreement.
33. The Applicant has proven that there has been a unjustifiable disparity between the vacancy she qualified for upon her application and the vacancy she is currently recognised by at her employment.
34. In the premises I make the following award.
AWARD
35. I find that the employee has proven that the Respondent has committed an unfair labour practice.
36. The Applicant is to be placed on the correct grade level immediately.
37. The Respondent is to compensate the Applicant accordingly with an amount of no less than R385 617,50 as the sum reflecting the difference in salary and benefits due to her owing to the incorrect placement. The latter amount is to be paid no later than the 30th of November 2021.
Yolisa Ndzuta
Panelist: ELRC