ELRC644-20/21 EC
Text
ELRC-646-21/22EC
Award Date:
27 January 2022
Case Number: ELRC-646-21/22EC
Commissioner: Catherine Willows
Date of Award: 27 January 2022
In the matter between
NAPTOSA obo MRS KIM FARR
(Applicant)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
Respondent
DETAILS OF HEARING AND REPRESENTATION
1. This award is rendered in terms of section 138(7) of the Labour Relations Act, 66 of 1995 as amended (the LRA).
2. The dispute was referred for arbitration in terms of Clause 69: Dispute Resolution Procedure contained in Schedule 1 to the Constitution of the ELRC (enforcement of the BCEA and Collective Agreement provisions) and was held on the 27th January 2022 via Zoom Virtual Conferencing.
3. The Applicant, Mrs Kim Farr, was represented by Advocate GD Saayman of NAPTOSA. The Respondent, Department of Education Eastern Cape, was present and represented by their Senior Labour Relations Officer, Mr W Hena.
4. The Applicant submitted three (3) bundles of documents, to be utilised in the presentation of her case. These were accepted into evidence and not placed in dispute and were categorised as Applicant Bundle “A”; “B” and “C”.
5. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.
BACKGROUND TO THE DISPUTE
6. The Applicant is employed as an HOD (Level 2) at Hudson Park Primary School in East London and commenced such position on 2 April 2019.
7. The Applicant’s claim is two-fold. Firstly, in terms of Collective Agreement 5 of 2003 (“Measures dealing with the recognition of experience of educators gained outside public education prior to 1 July 1996”) and Collective Agreement 4 of 2003 (“Post and salary structures for educators”). The period for which the Applicant claims is from 1 April 2003 to 31 January 2022. The second relates to Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures (”PAM”). The period for which the Applicant claims is from 1 January 2008 to 31 January 2022.
8. The Applicant submitted a grievance on 15 October 2021 which was not resolved. She subsequently lodged her dispute with the Council.
ISSUE TO BE DECIDED
9. I am required to determine whether there has been failure by the Respondent to evaluate and apply the provisions of Collective Agreement 5 of 2003 (“Measures dealing with the recognition of experience of educators gained outside public education prior to 1 July 1996”); Collective Agreement 4 of 2003 (“Post and salary structures for educators”) and Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures (“PAM”).
10. The Respondent does not dispute the Applicant’s claim and is in agreement with the calculations provided by her submitted in her Bundle “A” on pages 2; 3; and 4.
11. I am therefore required to assess the claim of the Applicant and order appropriate relief in this regard.
SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant’s evidence:
12. The Applicant submitted that she was appointed on 2 April 2019 and is currently the Head of Department (“HOD”) Level 2 at Hudson Park Primary School in East London.
13. When she was appointed she should have been appointed on REQV 15 but was appointed on REQV14. She submitted that the period of 1 April 2003 to 31 December 2003 and 1 January 2004 to 31 December 2004 was not considered for her previous experience and employment at Strand on the Green Infant & Nursery School, Thames Road, Chiswick, London Borough of Hounslow.
14. In addition, the period of time within which she was employed in a School Governing Board (“SGB”) post for Hudson Park Primary School from 1 January 2007 to 31 December 2007 and from 1 January 2008 to 31 March 2019 was not considered. As a result of such previous experience not being considered in terms of Collective Agreement 4 of 2003, she was placed on notch code 210 but should have been placed on notch code 236. The total notches claim is that of two years, nine months; eleven years and three months which calculates to fourteen percent (14%). This calculation was completed in terms of Collective Agreement 4 of 2003 (for the period of 1 April 2003 to 31 December 2003; 1 January 2004 to 31 December 2004 and 1 January 2007 to 31 December 2007) and equates to a total of two (2) years and nine (9) months (2 notches). In addition to such, in terms of Collective Agreement 4 of 2009 (for the period of 1 January 2008 to 31 March 2019) equates to a total of eleven (11) years and three (3) month.
15. The calculations submitted by the Applicant are to the value of R180 330. 60 (one hundred and eighty thousand three hundred and thirty rand and sixty-cents) due and owing to her. This is the difference between notch code 210 (R348 747.00 per annum) and notch code 236 (R399 039.00 per annum).
16. In terms of the claim of the Applicant relating to Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures “PAM”. (The period for which the Applicant claims for is from 1 April 2003 to 31 January 2022 and 1 January 2008 to 31 January 2022), the Applicant was placed on REQV 14 at date of appointment. She improved her qualifications in 11 May 2011 with an Advanced Certificate in Education with specialization in Special Needs Education from University of Pretoria and Postgraduate Certificate in Professional Studies in Education conferred by Kingston University on 29 September 2005.
17. The Applicant submitted that she was on REQV 14 (but should have been at REQV15) at the time of her appointment but received the improved qualifications on 11 May 2011. In terms of the recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures, the Applicant is entitled to a cash bonus of ten percent (10%) of the notch code 85 amounting to twenty-eight thousand and three rand and eighty cents (R28 003.80).
18. The Applicant submitted that she had sent communication with all her documentary proof to the Human Resource Office in Rubusane, Mdantsane on 29 April 2019. She re-submitted on 15 October 2021 but to no avail.
19. The Applicant submitted (with supporting documentation in her bundle of evidence) that she meets the criteria as reflected in Collective Agreement 5 of 2003 (“Measures dealing with the recognition of experience of educators gained outside public education prior to 1 July 1996”); Collective Agreement 4 of 2003 (“Post and salary structures for educators”) and Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures “PAM”.
20. As a result of the non-compliance, she has been prejudiced and the total value of her claim (outstanding remuneration) is that of two hundred and eight thousand three hundred and thirty-four rand and eighty cents (R208 334. 40).
21. This amount is calculated on the basis of the value of R180 330. 60 (one hundred and eighty thousand three hundred and thirty rand and sixty-cents) due and owing to her. This is the difference between notch code 210 (R348 747.00 per annum) and notch code 236 (R399 039.00 per annum) added to the amount of the cash bonus of ten percent (10%) of the notch code 85 amounting to twenty-eight thousand and three rand and eighty cents (R28 003.80).
22. Therefore the Applicant claims for relief of the amounts cited above.
The Respondent’s Evidence:
23. The Respondent indicated at the outset of the proceedings that they did not dispute the claim of the Applicant and having sight of the calculations of amounts as provided in the Applicant’s bundle, the Respondent did not dispute those calculations were correct and due and owing to the Applicant.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS
24. The dispute before me relates to enforcement of Collective Agreement 5 of 2003 (“Measures dealing with the recognition of experience of educators gained outside public education prior to 1 July 1996”); Collective Agreement 4 of 2003 (“Post and salary structures for educators”) and Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures “PAM”.
25. The matter was set down in terms of Clause 69 of ELRC Constitution: Part C: Dispute Resolution Procedures which relates to the enforcement of the BCEA and Collective Agreement provisions.
26. The purpose of this section is to enforce any terms and conditions of employment which constitute a term of contract of employment of any employee covered by a collective agreement in terms of Section 49 (1) of the BCEA. The Applicant has relied upon the provisions of Collective Agreement 4 of 2003; 5 of 2003 and the provisions of PAM to compel the Respondent to correct her appointment level and alter the salary notches in line with previous experience.
27. It is trite that the PAM document is a regulation which is based upon the provisions of Collective Agreements entered into at the ELRC. Chapter B 8.4.3 of PAM is based upon ELRC Collective Agreements 4 of 2003.
28. The Respondent did not oppose the claim of the Applicant and agreed that the calculations performed and submitted by the Applicant in her bundle of documents were correct and a true reflection of the amounts due and owing to her.
29. I am therefore persuaded that the Applicant has satisfactorily proven that when she was appointed she should have been on REQV 15 but was appointed on REQV14. As a result of such previous experience not being considered in terms of Collective Agreement 4 of 2003, she was placed on notch code 210 but should have been placed on notch code 236. The total notches claim is that of two years, nine months; eleven years and three months which calculates to fourteen percent (14%). The Applicant submitted (with supporting documentation in her bundle of evidence) that she meets the criteria as reflected in Collective Agreement 5 of 2003 (“Measures dealing with the recognition of experience of educators gained outside public education prior to 1 July 1996”); Collective Agreement 4 of 2003 (“Post and salary structures for educators”) and Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures “PAM”.
30. As a result of the non-compliance, she has been prejudiced and the total value of her claim (outstanding remuneration) is that of two hundred and eight thousand three hundred and thirty-four rand and eighty cents (R208 334. 40) comprised of the amounts of R108 330.60 and R28 003. 80 as detailed in paragraphs 31 and 32 below.
31. This calculation was completed in terms of Collective Agreement 4 of 2003 (for the period of 1 April 2003 to 31 December 2003; 1 January 2004 to 31 December 2004 and 1 January 2007 to 31 December 2007) and equates to a total of two (2) years and nine (9) months (2 notches). In addition to such, in terms of Collective Agreement 4 of 2009 (for the period of 1 January 2008 to 31 March 2019) equates to a total of eleven (11) years and three (3) month.
31. In addition, I am furthermore persuaded that the Applicant has also satisfactorily proven that in terms of the recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures, the Applicant is entitled to a cash bonus of ten percent (10%) of the notch code 85 amounting to twenty-eight thousand and three rand and eighty cents (R28 003.80).
32. The Applicant has succeeded in discharging the onus to prove her claim and upon such basis, I grant her the relief sought.
33. In light of the above I make the following award.
AWARD
34. The Respondent, Department of Education, Eastern Cape is hereby ordered to comply with the provisions of the Personnel Administrative Measures (“PAM”) which is based on ELRC Collective Agreement 4 of 2003 and 5 of 2003 by doing the following:
35. Rectify the salary notch code of the Applicant, Mrs Kim Farr, (Persal No. 57150206/PG39) to that of notch code 241 (R409 095.00) per annum by no later than 28 February 2022.
36. The Respondent is ordered to make payment of the amount of two hundred and eight thousand three hundred and thirty-four rand (R208 334.00) as detailed in the calculations of paragraph 30; 31 and 32 above.
37. The Respondent is ordered to pay the amounts referred to in paragraph 36 to the Applicant by no later than 28 February 2022.
Signature:
Catherine Willows
ELRC Panellist
Commissioner: Catherine Willows
Date of Award: 27 January 2022
In the matter between
NAPTOSA obo MRS KIM FARR
(Applicant)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
Respondent
DETAILS OF HEARING AND REPRESENTATION
1. This award is rendered in terms of section 138(7) of the Labour Relations Act, 66 of 1995 as amended (the LRA).
2. The dispute was referred for arbitration in terms of Clause 69: Dispute Resolution Procedure contained in Schedule 1 to the Constitution of the ELRC (enforcement of the BCEA and Collective Agreement provisions) and was held on the 27th January 2022 via Zoom Virtual Conferencing.
3. The Applicant, Mrs Kim Farr, was represented by Advocate GD Saayman of NAPTOSA. The Respondent, Department of Education Eastern Cape, was present and represented by their Senior Labour Relations Officer, Mr W Hena.
4. The Applicant submitted three (3) bundles of documents, to be utilised in the presentation of her case. These were accepted into evidence and not placed in dispute and were categorised as Applicant Bundle “A”; “B” and “C”.
5. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.
BACKGROUND TO THE DISPUTE
6. The Applicant is employed as an HOD (Level 2) at Hudson Park Primary School in East London and commenced such position on 2 April 2019.
7. The Applicant’s claim is two-fold. Firstly, in terms of Collective Agreement 5 of 2003 (“Measures dealing with the recognition of experience of educators gained outside public education prior to 1 July 1996”) and Collective Agreement 4 of 2003 (“Post and salary structures for educators”). The period for which the Applicant claims is from 1 April 2003 to 31 January 2022. The second relates to Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures (”PAM”). The period for which the Applicant claims is from 1 January 2008 to 31 January 2022.
8. The Applicant submitted a grievance on 15 October 2021 which was not resolved. She subsequently lodged her dispute with the Council.
ISSUE TO BE DECIDED
9. I am required to determine whether there has been failure by the Respondent to evaluate and apply the provisions of Collective Agreement 5 of 2003 (“Measures dealing with the recognition of experience of educators gained outside public education prior to 1 July 1996”); Collective Agreement 4 of 2003 (“Post and salary structures for educators”) and Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures (“PAM”).
10. The Respondent does not dispute the Applicant’s claim and is in agreement with the calculations provided by her submitted in her Bundle “A” on pages 2; 3; and 4.
11. I am therefore required to assess the claim of the Applicant and order appropriate relief in this regard.
SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant’s evidence:
12. The Applicant submitted that she was appointed on 2 April 2019 and is currently the Head of Department (“HOD”) Level 2 at Hudson Park Primary School in East London.
13. When she was appointed she should have been appointed on REQV 15 but was appointed on REQV14. She submitted that the period of 1 April 2003 to 31 December 2003 and 1 January 2004 to 31 December 2004 was not considered for her previous experience and employment at Strand on the Green Infant & Nursery School, Thames Road, Chiswick, London Borough of Hounslow.
14. In addition, the period of time within which she was employed in a School Governing Board (“SGB”) post for Hudson Park Primary School from 1 January 2007 to 31 December 2007 and from 1 January 2008 to 31 March 2019 was not considered. As a result of such previous experience not being considered in terms of Collective Agreement 4 of 2003, she was placed on notch code 210 but should have been placed on notch code 236. The total notches claim is that of two years, nine months; eleven years and three months which calculates to fourteen percent (14%). This calculation was completed in terms of Collective Agreement 4 of 2003 (for the period of 1 April 2003 to 31 December 2003; 1 January 2004 to 31 December 2004 and 1 January 2007 to 31 December 2007) and equates to a total of two (2) years and nine (9) months (2 notches). In addition to such, in terms of Collective Agreement 4 of 2009 (for the period of 1 January 2008 to 31 March 2019) equates to a total of eleven (11) years and three (3) month.
15. The calculations submitted by the Applicant are to the value of R180 330. 60 (one hundred and eighty thousand three hundred and thirty rand and sixty-cents) due and owing to her. This is the difference between notch code 210 (R348 747.00 per annum) and notch code 236 (R399 039.00 per annum).
16. In terms of the claim of the Applicant relating to Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures “PAM”. (The period for which the Applicant claims for is from 1 April 2003 to 31 January 2022 and 1 January 2008 to 31 January 2022), the Applicant was placed on REQV 14 at date of appointment. She improved her qualifications in 11 May 2011 with an Advanced Certificate in Education with specialization in Special Needs Education from University of Pretoria and Postgraduate Certificate in Professional Studies in Education conferred by Kingston University on 29 September 2005.
17. The Applicant submitted that she was on REQV 14 (but should have been at REQV15) at the time of her appointment but received the improved qualifications on 11 May 2011. In terms of the recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures, the Applicant is entitled to a cash bonus of ten percent (10%) of the notch code 85 amounting to twenty-eight thousand and three rand and eighty cents (R28 003.80).
18. The Applicant submitted that she had sent communication with all her documentary proof to the Human Resource Office in Rubusane, Mdantsane on 29 April 2019. She re-submitted on 15 October 2021 but to no avail.
19. The Applicant submitted (with supporting documentation in her bundle of evidence) that she meets the criteria as reflected in Collective Agreement 5 of 2003 (“Measures dealing with the recognition of experience of educators gained outside public education prior to 1 July 1996”); Collective Agreement 4 of 2003 (“Post and salary structures for educators”) and Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures “PAM”.
20. As a result of the non-compliance, she has been prejudiced and the total value of her claim (outstanding remuneration) is that of two hundred and eight thousand three hundred and thirty-four rand and eighty cents (R208 334. 40).
21. This amount is calculated on the basis of the value of R180 330. 60 (one hundred and eighty thousand three hundred and thirty rand and sixty-cents) due and owing to her. This is the difference between notch code 210 (R348 747.00 per annum) and notch code 236 (R399 039.00 per annum) added to the amount of the cash bonus of ten percent (10%) of the notch code 85 amounting to twenty-eight thousand and three rand and eighty cents (R28 003.80).
22. Therefore the Applicant claims for relief of the amounts cited above.
The Respondent’s Evidence:
23. The Respondent indicated at the outset of the proceedings that they did not dispute the claim of the Applicant and having sight of the calculations of amounts as provided in the Applicant’s bundle, the Respondent did not dispute those calculations were correct and due and owing to the Applicant.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS
24. The dispute before me relates to enforcement of Collective Agreement 5 of 2003 (“Measures dealing with the recognition of experience of educators gained outside public education prior to 1 July 1996”); Collective Agreement 4 of 2003 (“Post and salary structures for educators”) and Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures “PAM”.
25. The matter was set down in terms of Clause 69 of ELRC Constitution: Part C: Dispute Resolution Procedures which relates to the enforcement of the BCEA and Collective Agreement provisions.
26. The purpose of this section is to enforce any terms and conditions of employment which constitute a term of contract of employment of any employee covered by a collective agreement in terms of Section 49 (1) of the BCEA. The Applicant has relied upon the provisions of Collective Agreement 4 of 2003; 5 of 2003 and the provisions of PAM to compel the Respondent to correct her appointment level and alter the salary notches in line with previous experience.
27. It is trite that the PAM document is a regulation which is based upon the provisions of Collective Agreements entered into at the ELRC. Chapter B 8.4.3 of PAM is based upon ELRC Collective Agreements 4 of 2003.
28. The Respondent did not oppose the claim of the Applicant and agreed that the calculations performed and submitted by the Applicant in her bundle of documents were correct and a true reflection of the amounts due and owing to her.
29. I am therefore persuaded that the Applicant has satisfactorily proven that when she was appointed she should have been on REQV 15 but was appointed on REQV14. As a result of such previous experience not being considered in terms of Collective Agreement 4 of 2003, she was placed on notch code 210 but should have been placed on notch code 236. The total notches claim is that of two years, nine months; eleven years and three months which calculates to fourteen percent (14%). The Applicant submitted (with supporting documentation in her bundle of evidence) that she meets the criteria as reflected in Collective Agreement 5 of 2003 (“Measures dealing with the recognition of experience of educators gained outside public education prior to 1 July 1996”); Collective Agreement 4 of 2003 (“Post and salary structures for educators”) and Recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures “PAM”.
30. As a result of the non-compliance, she has been prejudiced and the total value of her claim (outstanding remuneration) is that of two hundred and eight thousand three hundred and thirty-four rand and eighty cents (R208 334. 40) comprised of the amounts of R108 330.60 and R28 003. 80 as detailed in paragraphs 31 and 32 below.
31. This calculation was completed in terms of Collective Agreement 4 of 2003 (for the period of 1 April 2003 to 31 December 2003; 1 January 2004 to 31 December 2004 and 1 January 2007 to 31 December 2007) and equates to a total of two (2) years and nine (9) months (2 notches). In addition to such, in terms of Collective Agreement 4 of 2009 (for the period of 1 January 2008 to 31 March 2019) equates to a total of eleven (11) years and three (3) month.
31. In addition, I am furthermore persuaded that the Applicant has also satisfactorily proven that in terms of the recognition of improvement of qualification (REQV) Government Gazette No. 24948 (1 February 2003) read with Chapter B.10.2.5 of Personnel Administrative Measures, the Applicant is entitled to a cash bonus of ten percent (10%) of the notch code 85 amounting to twenty-eight thousand and three rand and eighty cents (R28 003.80).
32. The Applicant has succeeded in discharging the onus to prove her claim and upon such basis, I grant her the relief sought.
33. In light of the above I make the following award.
AWARD
34. The Respondent, Department of Education, Eastern Cape is hereby ordered to comply with the provisions of the Personnel Administrative Measures (“PAM”) which is based on ELRC Collective Agreement 4 of 2003 and 5 of 2003 by doing the following:
35. Rectify the salary notch code of the Applicant, Mrs Kim Farr, (Persal No. 57150206/PG39) to that of notch code 241 (R409 095.00) per annum by no later than 28 February 2022.
36. The Respondent is ordered to make payment of the amount of two hundred and eight thousand three hundred and thirty-four rand (R208 334.00) as detailed in the calculations of paragraph 30; 31 and 32 above.
37. The Respondent is ordered to pay the amounts referred to in paragraph 36 to the Applicant by no later than 28 February 2022.
Signature:
Catherine Willows
ELRC Panellist