ELRC130-21/22NW
Text
ELRC130-21/22NW
Award Date:
08 August 2022
Panellist: Themba Manganyi
Case No.: ELRC130-21/22NW
Dates of Hearing: 05 April 2022
Date of Arguments: 12 April 2022, 04 May 2020 & 12 May 2022
Date of Award: 08 August 2022
In the Arbitration Proceedings between
NAPTOSA OBO NTLETLANG MOKGATLE APPLICANT
And
DEPARTMENT OF EDUCATION – NORTH WEST RESPONDENT
Applicant’s representative: Mr Frans Motaung
Respondent’s representative: Ms Boitumelo Phuswane
Details of hearing and representation
1. The Applicant referred an interpretation and / or application dispute to the Education Labour Relations Council. The matter was set-down for arbitration on 05 April 2022 to be heard at the Madibeng Area Office in Brits.
2. Mr Frans Motaung, a NAPTOSA Official, represented the Applicant, Ms Ntetlang Mokgatle. Ms Boitumelo Phuswane, the Acting Deputy Director: Labour Relations, represented the Respondent, Department of Education – North West.
3. Parties agreed that the dispute to be determined is a legal dispute and not a dispute of facts. Therefore, it was agreed to dispose of the dispute through written heads of arguments. It was agreed that the Applicant would submit its heads of arguments on 12 April 2022 and the Respondent would respond on 19 April 2022. Then, the Applicant would have the right to reply on 22 April 2022. However, for reason unbeknown to me, the Respondent alleged that the Applicant’s heads of arguments only came to her attention on 29 April 2022. Hence, she submitted the Respondent’s heads of arguments on 04 May 2022 and the Applicant replied on 12 May 2022. All the submissions have been duly considered in the writing of this award.
Issue/s to be decided
4. I am enjoined in these proceedings to determine the correct interpretation and / or application of clause F.5.2.2 of the Personnel Administration Measures (“PAM”) read with paragraph 4.2 of the ELRC Collective Agreement 02 of 2007.
Background
5. The Applicant is employed as an Educator PL1 and she was on secondment duties from 2013 to 2014 as trade union shop steward. In the year 2015, at the completion of her secondment duties, she was placed to co-ordinate the National School Nutrition Program (“NSNP”) as an office based Educator. In 2017, after the restructuring of the NSNP, the Applicant was placed to co-ordinate the Integrated Quality Management Systems (“IQMS”). During the year 2021, the Applicant was required to return to school as a PL1 Educator.
6. The clause that I am called upon to interpret, for ease of reference, reads thus:
F.5.2.2. A SS who returns to his/her educator duties must be assigned the post he/she left prior to his appointment. If this is impossible and/or impractical or not in the best interest of education, the provincial department of education must offer the SS a suitable alternative, commensurate with the post that the SS held prior to his/her appointment as a SS.
7. The Applicant contends that the Respondent re-applied the clause (clause F.5.2.2 of the PAM) that was used to place her to co-ordinate NSNP to return her back to school in 2021 and that this clause is only utilized to shop stewards at the end of their secondment. The Applicant further contends that the Respondent disregarded clause F.4.1.4.5 of the PAM.
8. On the other hand, the Respondent contends that the Applicant was temporarily placed (seconded) in a SL 8 post then to PL 3 post and that both these posts are not equivalent to a PL 1 post. The Respondent further contends that the then Acing Area Manager (Ms Ramagofu) acted ultra vires by offering the Applicant a senior post because it is the Head of Department (“HOD”) that has the authority to appoint and that authority is delegated to the District Manager. In her reply, the Applicant refuted this assertion and stated that the Acting Area Manager exercised a prerogative delegated to her position by the HOD. The Applicant prays that she be placed as an office based employee at PL 1.
Survey of evidence and arguments
9. All the submissions are a matter of record and as such, they will not be restated herein. However, they were fully considered in the making of this determination.
Analysis of evidence and argument
10. This is an award in terms of section 138(7) of the LRA. Therefore, what follows hereunder, are my brief reasons. The dispute relates to an interpretation and / or application of clause F.5.2.2 of the PAM read with clause 4.2 of the CA 02 of 2007.
11. Frederick J. De Sloovere, Contextual Interpretation of Statutes, 5 Fordham L. Rev. 219 (1936) had this to say in interpreting statutes:
“Very often the obvious meaning is the correct one, but until one can say that it is the only sensible meaning, the statute has not been fully interpreted. At this point in the process the context must be studied so as to be sure there is no other equally justifiable meaning that the text will bear by fair use of language. Moreover, if the obvious meaning is not in accord with the meanings of other parts of the statute and with the subject-matter and purpose or reason of the statute, it is no longer persuasive. A statute is therefore only tentatively plain and explicit until the necessary interpretative techniques have been applied and a critical analysis of the meanings of all other parts of the statute or of other statutes in pari materia or of relevant common law doctrines confirms the obvious meaning so chosen. Hence, every statute must be interpreted in the light of (1) the subject-matter with which it deals; (2) the reason or purpose behind its enactment as found in the text and the evil toward which it was directed (including here extrinsic aids and the common law); and (3) the meanings of the several other relevant parts of the same statute or of statutes in pari materia. Likewise, the obvious meaning is not the correct one unless it is sensible. If, then, the literal or obvious meaning is sensible and fulfills these several demands, any other conflicting meaning (contextual or otherwise) not meeting these essentials cannot be regarded as the proper one. Thus the obvious or primary meaning-the one which is first gleaned by reading the statute in the light of the case to which it is to be applied-may not accord with the subject-matter, purpose or other parts of the statutes. If it does not, it is clearly inferior to any other meaning, contextual or otherwise, that does actually meet these tests, provided the latter is a meaning that the statute will justifiably bear by a fair use of language.'
12. It is my considered view that there is no incongruity in the manner in which both parties interpret clause F.5.2.2 of the PAM. The clause is so perfectly crafted thus leaving little room, if any, for different interpretations. What the clause seeks to achieve is not to disadvantage Educators who were seconded to perform trade union duties as shop stewards upon the end of their terms as shop stewards. However, what I find the parties to be at odds with is how this clause was applied when the Applicant’s secondment term came to an end.
13. It is common cause that the Applicant’s secondment term ended in 2014. It is common cause that the Applicant was not assigned the post she left prior her appointment as a shop steward. Instead, she was placed to co-coordinate the NSNP (SL 8 post). After the restructuring of the NSNP, the Applicant was placed to co-ordinate the IQMS (PL 3 post) until 2021. Both these post (NSNP and IQMS) are not equivalent to the Applicant’s PL 1 post. It therefore follows that the posts that the Applicant was placed in were not commensurate with the post that she held prior to her secondment.
14. I am in agreement with the Applicant that clause F.5.2.2 of the PAM may be applied only once upon the Educator’s return from her trade union duties. In this instance, the Respondent placed the Applicant in an office based post upon her return from her shop steward duties. The NSNP post was not commensurate with the post that the Applicant held prior her secondment. Thus, applying the clause incorrectly. The move from the NSNP post to the IQMS post could not be effected through the prescripts of the clause in question. I am alive to the fact that the Applicant was at all material times paid according to her PL 1 post level. Therefore, it cannot be said that the Applicant was promoted. I am also in agreement with the Respondent that clause F.4.1.4.5 of the PAM is only applicable to officials who are appointed as National negotiators.
15. Clause F.5.2.2 also states that if it is impossible and / or impractical or not in the best interest of education to place the shop steward in her previous post, the provincial department of education must offer the shop steward a suitable alternative, commensurate with the post that the shop steward held prior to his / her appointment as a shop steward. Now, the question that would beg an answer would be: Will it be in the best interest of education to return the Applicant to her previous position (school-based Educator) after being out of the system for almost seven (7) years? My answer will be a NO. My answer is informed by the fact that the Applicant does not have the necessary CAPS training required for her to be on par with the school environment. Consequently, I find that Clause F.5.2.2 is correctly interpreted by the parties. However, I find that the Respondent applied the clause incorrectly by placing the Applicant in positions senior to her PL 1 post and kept her there for over seven (7) years. I also find that it would be impractical and not in the interest of education to place the Applicant in the school-based post.
16. I have intentionally not dealt with the allegation of discrimination that the Applicant raised in her submissions simply because that was not the dispute that was before me.
Award
I find that
17. The parties’ interpretation Clause F.5.2.2 of the PAM is correct. However, the application of the clause is incorrect.
18. The Applicant was supposed to be placed in her previous position prior to the secondment. Alternatively, be placed in a position equivalent to her previous position of PL 1.
19. The Applicant’s placement to the school-based environment would not be in the best interest of education.
Arbitrator: Themba Manganyi
Case No.: ELRC130-21/22NW
Dates of Hearing: 05 April 2022
Date of Arguments: 12 April 2022, 04 May 2020 & 12 May 2022
Date of Award: 08 August 2022
In the Arbitration Proceedings between
NAPTOSA OBO NTLETLANG MOKGATLE APPLICANT
And
DEPARTMENT OF EDUCATION – NORTH WEST RESPONDENT
Applicant’s representative: Mr Frans Motaung
Respondent’s representative: Ms Boitumelo Phuswane
Details of hearing and representation
1. The Applicant referred an interpretation and / or application dispute to the Education Labour Relations Council. The matter was set-down for arbitration on 05 April 2022 to be heard at the Madibeng Area Office in Brits.
2. Mr Frans Motaung, a NAPTOSA Official, represented the Applicant, Ms Ntetlang Mokgatle. Ms Boitumelo Phuswane, the Acting Deputy Director: Labour Relations, represented the Respondent, Department of Education – North West.
3. Parties agreed that the dispute to be determined is a legal dispute and not a dispute of facts. Therefore, it was agreed to dispose of the dispute through written heads of arguments. It was agreed that the Applicant would submit its heads of arguments on 12 April 2022 and the Respondent would respond on 19 April 2022. Then, the Applicant would have the right to reply on 22 April 2022. However, for reason unbeknown to me, the Respondent alleged that the Applicant’s heads of arguments only came to her attention on 29 April 2022. Hence, she submitted the Respondent’s heads of arguments on 04 May 2022 and the Applicant replied on 12 May 2022. All the submissions have been duly considered in the writing of this award.
Issue/s to be decided
4. I am enjoined in these proceedings to determine the correct interpretation and / or application of clause F.5.2.2 of the Personnel Administration Measures (“PAM”) read with paragraph 4.2 of the ELRC Collective Agreement 02 of 2007.
Background
5. The Applicant is employed as an Educator PL1 and she was on secondment duties from 2013 to 2014 as trade union shop steward. In the year 2015, at the completion of her secondment duties, she was placed to co-ordinate the National School Nutrition Program (“NSNP”) as an office based Educator. In 2017, after the restructuring of the NSNP, the Applicant was placed to co-ordinate the Integrated Quality Management Systems (“IQMS”). During the year 2021, the Applicant was required to return to school as a PL1 Educator.
6. The clause that I am called upon to interpret, for ease of reference, reads thus:
F.5.2.2. A SS who returns to his/her educator duties must be assigned the post he/she left prior to his appointment. If this is impossible and/or impractical or not in the best interest of education, the provincial department of education must offer the SS a suitable alternative, commensurate with the post that the SS held prior to his/her appointment as a SS.
7. The Applicant contends that the Respondent re-applied the clause (clause F.5.2.2 of the PAM) that was used to place her to co-ordinate NSNP to return her back to school in 2021 and that this clause is only utilized to shop stewards at the end of their secondment. The Applicant further contends that the Respondent disregarded clause F.4.1.4.5 of the PAM.
8. On the other hand, the Respondent contends that the Applicant was temporarily placed (seconded) in a SL 8 post then to PL 3 post and that both these posts are not equivalent to a PL 1 post. The Respondent further contends that the then Acing Area Manager (Ms Ramagofu) acted ultra vires by offering the Applicant a senior post because it is the Head of Department (“HOD”) that has the authority to appoint and that authority is delegated to the District Manager. In her reply, the Applicant refuted this assertion and stated that the Acting Area Manager exercised a prerogative delegated to her position by the HOD. The Applicant prays that she be placed as an office based employee at PL 1.
Survey of evidence and arguments
9. All the submissions are a matter of record and as such, they will not be restated herein. However, they were fully considered in the making of this determination.
Analysis of evidence and argument
10. This is an award in terms of section 138(7) of the LRA. Therefore, what follows hereunder, are my brief reasons. The dispute relates to an interpretation and / or application of clause F.5.2.2 of the PAM read with clause 4.2 of the CA 02 of 2007.
11. Frederick J. De Sloovere, Contextual Interpretation of Statutes, 5 Fordham L. Rev. 219 (1936) had this to say in interpreting statutes:
“Very often the obvious meaning is the correct one, but until one can say that it is the only sensible meaning, the statute has not been fully interpreted. At this point in the process the context must be studied so as to be sure there is no other equally justifiable meaning that the text will bear by fair use of language. Moreover, if the obvious meaning is not in accord with the meanings of other parts of the statute and with the subject-matter and purpose or reason of the statute, it is no longer persuasive. A statute is therefore only tentatively plain and explicit until the necessary interpretative techniques have been applied and a critical analysis of the meanings of all other parts of the statute or of other statutes in pari materia or of relevant common law doctrines confirms the obvious meaning so chosen. Hence, every statute must be interpreted in the light of (1) the subject-matter with which it deals; (2) the reason or purpose behind its enactment as found in the text and the evil toward which it was directed (including here extrinsic aids and the common law); and (3) the meanings of the several other relevant parts of the same statute or of statutes in pari materia. Likewise, the obvious meaning is not the correct one unless it is sensible. If, then, the literal or obvious meaning is sensible and fulfills these several demands, any other conflicting meaning (contextual or otherwise) not meeting these essentials cannot be regarded as the proper one. Thus the obvious or primary meaning-the one which is first gleaned by reading the statute in the light of the case to which it is to be applied-may not accord with the subject-matter, purpose or other parts of the statutes. If it does not, it is clearly inferior to any other meaning, contextual or otherwise, that does actually meet these tests, provided the latter is a meaning that the statute will justifiably bear by a fair use of language.'
12. It is my considered view that there is no incongruity in the manner in which both parties interpret clause F.5.2.2 of the PAM. The clause is so perfectly crafted thus leaving little room, if any, for different interpretations. What the clause seeks to achieve is not to disadvantage Educators who were seconded to perform trade union duties as shop stewards upon the end of their terms as shop stewards. However, what I find the parties to be at odds with is how this clause was applied when the Applicant’s secondment term came to an end.
13. It is common cause that the Applicant’s secondment term ended in 2014. It is common cause that the Applicant was not assigned the post she left prior her appointment as a shop steward. Instead, she was placed to co-coordinate the NSNP (SL 8 post). After the restructuring of the NSNP, the Applicant was placed to co-ordinate the IQMS (PL 3 post) until 2021. Both these post (NSNP and IQMS) are not equivalent to the Applicant’s PL 1 post. It therefore follows that the posts that the Applicant was placed in were not commensurate with the post that she held prior to her secondment.
14. I am in agreement with the Applicant that clause F.5.2.2 of the PAM may be applied only once upon the Educator’s return from her trade union duties. In this instance, the Respondent placed the Applicant in an office based post upon her return from her shop steward duties. The NSNP post was not commensurate with the post that the Applicant held prior her secondment. Thus, applying the clause incorrectly. The move from the NSNP post to the IQMS post could not be effected through the prescripts of the clause in question. I am alive to the fact that the Applicant was at all material times paid according to her PL 1 post level. Therefore, it cannot be said that the Applicant was promoted. I am also in agreement with the Respondent that clause F.4.1.4.5 of the PAM is only applicable to officials who are appointed as National negotiators.
15. Clause F.5.2.2 also states that if it is impossible and / or impractical or not in the best interest of education to place the shop steward in her previous post, the provincial department of education must offer the shop steward a suitable alternative, commensurate with the post that the shop steward held prior to his / her appointment as a shop steward. Now, the question that would beg an answer would be: Will it be in the best interest of education to return the Applicant to her previous position (school-based Educator) after being out of the system for almost seven (7) years? My answer will be a NO. My answer is informed by the fact that the Applicant does not have the necessary CAPS training required for her to be on par with the school environment. Consequently, I find that Clause F.5.2.2 is correctly interpreted by the parties. However, I find that the Respondent applied the clause incorrectly by placing the Applicant in positions senior to her PL 1 post and kept her there for over seven (7) years. I also find that it would be impractical and not in the interest of education to place the Applicant in the school-based post.
16. I have intentionally not dealt with the allegation of discrimination that the Applicant raised in her submissions simply because that was not the dispute that was before me.
Award
I find that
17. The parties’ interpretation Clause F.5.2.2 of the PAM is correct. However, the application of the clause is incorrect.
18. The Applicant was supposed to be placed in her previous position prior to the secondment. Alternatively, be placed in a position equivalent to her previous position of PL 1.
19. The Applicant’s placement to the school-based environment would not be in the best interest of education.
Arbitrator: Themba Manganyi