ELRC913 21/22NW
Award  Date:
  18 July 2022

Case No. ELRC913 21/22NW

In the matter between





HEARD: 3 MAY 2022 and 10 JUNE 2022


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 an Unfair Labour Practice has been committed by the Employer (the respondent) due to delay of regrading of the Employee’s school.



1. The matter was set down for arbitration on the 3rd of May 2022. The applicant was represented by Dr J Kruger of the SAOU while the respondent (the Employer) was represented by Mr Ketile of the Department of Education- North West. The matter was set down again on the 10th of June 2022 for consideration and determination of quantum.

2. The parties advised that there was no dispute of fact and requested that that matter be argued by means of verbal submissions relating to the matter at hand.

3. The Employee representative advised that he had not received the set down notice timeously however advised that he would nonetheless proceed with the matter.


5. I am to determine whether the Applicant as a referring party is being subjected to an unfair labour practice relating to alleged incorrect grading of her school (Rustenburg Technical High School). The dispute pertains to the interpretation of the Collective Agreement Number 3 of 2006- School Grading Norms specifically in relation to the PPN (post provision norms) of a school and subsequently how same affects the applicants own salary.


4. At the commencement of the proceedings, the applicant representative requested that that proceedings conducted similar to a statement of case wherein the parties would make verbal submissions pertaining the interpretation and application of the collective agreement applicable in this dispute. The basis of the applicant’s request was in relation to the understanding that the issue at hand is a question of law as there was no dispute relating to the facts thus testimony would not be necessary. The respondent representative concurred with the applicant’s representative as such the matter proceeded as per the applicants request.

6. It is pertinent that we understand what a statement of case is as such note the definition below .
A statement of case is defined as a statement of facts and submissions by parties once same have agreed that they do not intend adducing any oral evidence.

7. Having due regard to the matter at hand subject to the applicable provision, I permitted as the parties requested and the proceedings were conducted in the absence of any testimony rather oral submissions pertaining to the interpretation and application of a collective agreement.


8. In these proceedings the applicant referred a dispute relating to the interpretation of a collective agreement bearing reference: Collective Agreement Number 3 of 2006- School Grading Norms.

9. The applicant is the principal of Rustenburg Technical High School, a high school located in Rustenburg within the jurisdiction of the Respondent employer.

10. The applicant at the time of the dispute had been a principal in the same school for a substantial time and had allegedly observed the increase in number of educators and learners however also noticed how the school’s grading was not (allegedly) in compliance with neither collective agreement nor the Personnel Administrative Measures (PAM).

11. The applicant raised an issue with this as the grading of the school also affects her salary as per the collective agreement.


11. The applicant had filed a bundle consisting of several annexures. The respondent’s representative conceded to the contents of the applicant’s bundle and confirmed that he would not be challenging the veracity of information enclosed therein.

12. As placed above, the parties both accepted that considering that there would be submissions regarding the interpretation and interpretation of law, there are no disputes of fact however there are disputes of law which require adjudication.

13. Though no witnesses were called to testify, the submissions of the parties shall be considered in relation to their respective cases.

14. The applicant’s Submissions can be summarized as follows:

14.1 The Respondent is subject to national Collective Agreement Number 3 of 2006- School Grading Norms and the PAM regulations);

14.2 The abovementioned legislation regulates the grading of schools by considering the number of learners attending same school and the number of educators appointed in same school under assessment;

14.3 The respondent is obliged to conduct the annual assessment to determine the school’s specific post provisioning applicable;

14.4 The applicant’s salary notch is influenced by the grading of the school as such her salary has not been rectified considering the respondent’s noncompliance with the abovementioned legislation.

14.5 The applicants school has held the following numbers for the previous three years:

(i) 25 posts in 2019;
(ii) Increase from 25 to 29 posts in 2020;
(iii) 29 posts in 2021; and
(iv) 29 posts in 2022 (to date)

14.6 The respondent failed to conduct the aforementioned assessment for the applicants school.

14.7 The school is currently graded as a level 3 although upon consideration of its post allocations read with the application legislation relating to post provisioning norms, the school ought to be a level 4 school.

14.8 The school has exceeded the current grade level (grade level 3) for the past two years which the respondent has failed to rectify to date. The latter incorrect grading has a direct effect on the Applicants salary range (and loss) which same effect has been aggravated by the salary increases applicable in the past two years.

14.9 The respondent failed to apply Collective Agreement Number 3 of 2006 and the PAM regulations in its considerations of the applicant’s school and the applicants salary respectively.

14.10 The Respondent is liable for the Applicant’s loss, due to continual payment of an incorrect salary to her which same persists to date.

14.11 Even on application of paragraph 4 strict requirement of two consecutive years of the collective agreement, the Respondent ought to have executed an assessment in the beginning of 2022 because as early as 2022 it fell within the range of a grade P 4.

15. The case of the Respondent can be summarised as follows:
15.1 The applicant is misinterpreting the applicable legislation.

15.2 The assessment subject to the applicant’s dispute is only executed in the beginning of the year when considering the post provisioning of the preceding two consecutive years to determine if there has been an increase in educator posts.

15.3 Considering that 2022 has not been completed, the assessment for the school will be executed in 2023 wherein the posts of 2021 and 2022 will considered. The Respondent is therefore in compliance with the collective agreement and the PAM regulations.

15.4 The reason for the above is a safeguard for in favour of the Respondent in its administrative responsibility because should a school reduces its educator post allocation then the regrading may results in a down grade.

15.5 The school must first complete its two consecutive years and comply with the rule under paragraph 4.1 (a) of the collective agreement. The school will be regraded once this requirement is met.

15.6 It is integral that the educator post allocation for a school is maintained by the school for the entire two years in order for the school to be considered for regrading in the beginning of the following year in compliance with paragraph 4.1 (a).

16. I now turn to the analysis of the submissions in relation to the applicable law.


17. In considering the submissions, I shall depart from the premise of what defines an unfair labour practice. Section 186(2) of the Labour Relations Act 66 of 1995 defines an unfair labour practice as “an 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 benefits to an employee;
(b) the unfair suspension of an employee or any other 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; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
[S. 186 amended by s. 41 (a) of Act No. 12 of 2002. Sub-s. (2) added by s. 41 (c) of Act No. 12 of 2002.]

18. In considering the above, my task is to evaluate whether the applicant’s dispute pertaining the respondent’s conduct as constituting an unfair labour practice or not.

19. As established in case law, in such disputes the applicant bears the onus to prove the existence of an unfair labour practice thus must in its case establish how the conduct of the employer (respondent) satisfies the above definition.

20. The matter at hand pertains to an evaluation of the respondent’s actions when juxtaposed to their legislative duty per the collective agreement referred to herein above. Upon perusal of the
collective agreement one notes that same advises of its purpose as “ to establish norms in terms of which public schools are to be graded and how such norms are to be implemented”. The importance of the latter shall be explained hereinbelow.

21. It is evident that parties remain in dispute of the interpretation and application of the collective agreement with one advocating for a literal (strict) application as enclosed within the legislation whilst the other advocates for a flexible application.

22. It is further evident that the school’s education post allocation is and has been within a specific range (of 25 – 45) for the past two years as it remains in same range to date. It is also evident that the school has held a grading of P3 for these years and remain with a grading of P3 to date. This was not disputed by the respondent. What the respondent raised was that only in the year 2023 is the school due for the regrading assessment to place it in an amended grade. I find difficulty with that argument considering that the range referred to above is applicable for a P4 grading.

23. If we are to consider the principles of substantial compliance then we are to refer to the SCA decision in Weenen Transitional Local Council v Van Dyk which considered the application and interpretation of delegated legislation. The court places that where there isn’t compliance with legislation by an authoritative party, said non compliance cannot be excused (my interpretation).

24. The above principle was also applied in PSA obo CHOKOE v ELRC wherein the court -in dismissing the Applicant’s Review-commented that wherein the Applicant had formed part of a meeting that was constituted to comply with the applicable collective agreement then the employer cannot be seen not to have complied with the applicable collective agreement (my interpretation).

25. The legislation applicable advocates for a purposive interpretation of it, this assists in understanding the application of the necessary legislation too.

26. When one considers that the undisputed evidence directs how the school has maintained 29 educator posts for two consecutive years -2020, 2021-, one questions how come a grading assessment was not conducted in the beginning of 2022. The only logical conclusion is that of a misinterpretation by the respondent that lead to its delay.
27. It is evident that the school qualified for regrading in the beginning of 2022, even by relying on the respondent’s line of argument, if we consider the two previous consecutive years.

28. Had an assessment been conducted and the school been graded adequately, the applicant’s salary would have been amended to the correct notch.

29. Now I turn to the applicant’s request for a retrospective reimbursement.

30. As stated above, the parties were called to make submissions pertaining to the relief sought more importantly the parties were granted a further opportunity to make submissions to quantum on the 10th of June 2022 wherein both were directed to file written submissions to substantiate their respective arguments towards quantum on the 20th of June 2022 however only the applicant made written submissions substantiating the relief sought nonetheless sections 193(4) and section 194 of the Labour Relations Act 66 of 1995 shall be considered in these deliberations.

31. Although the applicant’s school requires immediate regrading, one must firstly consider how long has the school been operating under the incorrect grading as such the parallel to that is how long the principal has been placed in the incorrect notch. It is evident from the submissions and evidence that the school has been a P4 from the year 2020 however the integral question is whether in 2020 did the school qualify for a regrading. To answer the latter, one would have to consider the two consecutive years preceding the year of assessment. Unfortunately, we do not enjoy the luxury of such evidence.

32. Upon perusal of the legislation (including the PAM regulations), it does not permit the retrospective reimbursement to the essence of amending the salary notch from the date of the first year wherein the school exceeded its educator posts however directs that a high salary notch is only applicable for the date of up-grading. It must be reiterated that the upgrading in this dispute was due from the 1st of January 2022 therefore the salary notch adjustment is due from then.

33. In considering the relief sought, I am directed by section 193(4) and section 194 (4) of the Labour Relations Act 66 of 1995 which respectively read:

Section 193(4) “An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.”
Section 194 (4) The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months remuneration.”

34. It stands to determine that a commissioner must consider relief that is just and equitable and in this regard one must consider the submissions subject to the listed ground. Therefore considering when the school qualified as a P4 (per the PPN) and the evidence submitted. I make the following award.


35. The applicant has established that Respondent has failed to comply with the collective agreement. The contravention of the collective agreement constitutes an unfair labour practice.

36. The respondent is to upgrade Rustenburg Technical High School from a P3 to a P4 within 30 days of this award and to back date same as though it was from the 1st of January 2022 when it was due.

37. The respondent is directed to adjust the salary notch of the applicant from OSD code 286 to OSD code 308 and to back date same as though it was from the 1st of January 2022 when it was due.

38. The respondent is to compensate the Applicant an amount of Thirty Thousand Rands, One Hundred and Sixty-Three Rands & Fifty cents (R30 163.50) for the loss incurred since January 2022 when the applicant (and her school) qualified as a P4 school.

Yolisa Ndzuta
Panelist: ELRC
261 West Avenue
8h00 to 16h30 - Monday to Friday
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