ELRC705-21/22EC
Text
ELRC705-21/22EC
Award Date:
10 August 2022
Panelist: Clint Enslin
Case No.: ELRC705-21/22EC
Date of Award: 10 August 2022
In the ARBITRATION between:
Luthando Magandela
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Advocate G Saayman (NAPTOSA)
Applicant’s address:
Telephone: 083 720 13 54
Telefax:
Email antona@naptosa.org.za
Respondent’s representative: Mr N Mashoai
Respondent’s address:
Telephone: 081 046 9892
Telefax:
Email Loyiso.moshoai@edoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) 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 March, 10 May, 14 June and 20 July 2022. The proceedings were electronically recorded.
2. The Applicant, Mr Magandela, was represented by Advocate Gavin Saayman, a Legal Executive Officer of NAPTOSA, a registered trade union. The Respondent, Department of Education – Eastern Cape was represented by Mr Nelson Mashoai, a Chief Education Specialist – Employee Relations, of the Respondent.
ISSUE TO BE DECIDED
3. Whether the Respondent’s failure to pay the Applicant progression pay, 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 following facts were agreed to between the parties as common cause and there existed no dispute of fact.
5.1 The Applicant is employed as an educator (Principal).
5.2 The Applicant commenced employment with the Respondent on 29 August 1990.
5.3 The Applicant currently earns a gross salary of R615 711 per annum.
5.4 The Applicant was displaced to the district office from 2015 until September 2019.
5.5 The Applicant did not receive progression pay for 2014, 2015, 2016 and 2017.
5.6 The Applicant did receive progression pay for 2018, 2019, 2020 and 2021, but same was based on his salary which excluded the pay progression for the years set out in paragraph 5.5 above.
5.7 By not receiving pay progression, the Applicant’s pay adjustments and bonus were also affected. The cumulative amounts (adjustment and pay progression) the Applicant would have lost, by not receiving pay progression, are as contained in the document marked “B”. They were:
5.5.1 1 July 2014 to 31 March 2015 = R3244.50 (pay progression)
5.5.2 1 April 2015 to 30 June 2015 = R501.75 (annual increase shortfall)
5.5.3 1 July 2015 to 31 March 2016 = R4 995.00 (pay progression)
5.5.4 1 April 2016 to 30 June 2016 = R2 504.25 (annual increase shortfall)
5.5.5 1 July 2016 to 31 March 2017 = R11 310.75 (pay progression)
5.5.6 1 April 2017 to 30 June 2017 = R4 045.50 (annual increase shortfall)
5.5.7 1 July 2017 to 31 March 2018 = R16 266.00 (pay progression)
5.5.8 1 April 2018 to 30 June 2018 = R5 747.25 (annual increase shortfall)
5.5.9 1 July 2019 to 31 March 2019 = R21 672.00 (pay progression)
5.5.10 1 April 2019 to 30 June 2019 = R6 599.75 (annual increase shortfall)
5.5.11 1 July 2019 to 30 June 2020 = R36 780.00 (pay progression)
5.5.12 1 July 2020 to 30 June 2021 = R34 152.00 (pay progression
5.5.13 R21 259.70 in total bonus for the entire period.
5.5.14 The total amount that would be owing, if the Applicant had received his progression pay for the entire period in question, would be the sum of the amounts contained document “B” and as is reflected in 5.5.1 to 5.5.13 above.
5.5.15 The monies claimed are a benefit.
6. The Respondent handed in 2 bundles of documents, marked “A” and “B” respectively. It was agreed that the documents in bundle “A” were what they purported to be.
7. The Applicant seeks payment of the monies set out in paragraphs 5.5.1 to 5.13 above.
8. The parties submitted written closing arguments.
9. The matter was recorded electronically.
SURVEY OF EVIDENCE AND ARGUMENT
10. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
evidence and arguments heard and considered in deciding this matter.
APPLICANT’S CASE
Mr Luthando Magandela
11. Mr Magandela, the Applicant in the matter, testified that he was appointed as principal on 12 June 1996. As a principal he was involved in IQMS scoring for teachers and the scoring is done for a period running from January to December of each year. He was displaced as principal, after June in 2015. He could not be evaluated for the period starting in 2014 until 2017 as the Respondent had not placed him in an area where he could be evaluated. He accordingly did not receive pay progression for this period.
12. He did submit scores for 2014. It was submitted in Mount Frere, however, he could not recall to who he submitted same. His manager had evaluated him. He disputed that he had submitted 2015 scores late. The Respondent had not informed him that even though he was not in the school, he must still submit documents. He did not submit any documents for 2016, 2017 and 2018 as he was displaced during this period. The IQMS evaluation is for a period of January to December and if successful the pay progression is the received on 1 July of the following year. He had received pay progression on 1 July 2018, despite the fact that he was still displaced in 2017 and had not submitted any documents for this period.
13. ELRC Collective Agreement 8 of 2003, “A” page 2, under step 2 states: “If the IQMS structures are not in place, the WSE team leader to request the Regional/District/Area Manager to provide advocacy and training around QMS. The Regional/District/Area Office to make the necessary arrangements with the school principal to do so……..” He found himself in such special circumstances as there was no IQMS structures in place for him to be evaluated. The District Manager was aware of this, but failed to make arrangements for him to be evaluated. He could not understand why the Respondent claimed that they would not pay him for 2014 to 2017 due to lack of papers being submitted, yet they had paid him for 2018 without any papers being submitted. He was still displaced during this period.
14. Page 14 of “A” indicated that he had been evaluated for 2015 (January to December) and found to be satisfactory. He was, however, not paid for this period. He believed the Respondent’s systems were inconsistent. Page 15 of “A” indicated that he was evaluated for 2019 (January to December) and that he was found to be satisfactory. He had only returned from the office late in 2019 and yet he was evaluated for the year according to the document on page 15.
15. He was initially displaced in 2015. He believed it was in July, but knew it was definitely after June. In 2014 he was still at the school. In 2015 he was also at the school until he was displaced. In 2016 & 2017 he was at the local office in Mount Ayliff. He had therefore been reporting at the said office since approximately July 2015. As a principal he reported to his line/circuit manager. He was at the school in 2014 and had been accessed. His circuit manager from 2014 to 2017 was Mr G Spencer. In 2014 he had submitted his IQMS documents to the office of the IQMS co-ordinator. He could not recall the exact person it was submitted to. He did not have a submission book. He normally did submissions without a book. He had not submitted any evaluation documents for 2015, 2016, 2017 or 2018. He did not know what the event numbers on page 5 of “Ä” signified. Although the code for 2018 may not indicate that it was pay progression, the notch column indicated an increase.
16. He was aware of the IQMS Collective Agreement, which required a performance evaluation with a satisfactory outcome. Although he had not submitted any documents for 2015, 2016, 2017 or 2018 he believed it was an exceptional situation as he was not placed where he could perform his duties where they could be evaluated. He had not asked the employer to be assessed. He had also not spoken with Mr Spencer, who was at the office where he was reporting, about his submission as he believed Mr Spencer was aware of him and would deal with the situation. He had spoken with the IQMS co-ordinator who said that his matter was with HR. There was no IQMS structure at the district office where he was placed.
RESPONDENT’S CASE
Mr Ntsikilelo Salukazana
17. Mr Salukazana testified that he was an IQMS co-ordinator from 2017 to 2021. There was a revision in terms of Collective Agreement 2 of 2020 and as such he is now a QMS co-ordinator. The process is driven by 3 programs which are integrated. They are development appraisal, performance management and whole school evaluation. The reason the Applicant was not paid relates to the performance management portion. QMS is evidence based and the school should have a master file with duplicates of all documents used in the process. This evidence should include pre and post evaluation minutes, minutes of meetings and performance standard rating. After all is done the principal submits the documents for the year to the district office by the end of the year. There is usually a circular giving guidance on the cut-off date. If the documents are not submitted by the cut-off date, no payment is made.
18. The Applicant submitted his documents late for 2015 and as such he was not paid for same. If there is no evidence of evaluation the individual will receive a 1 rating and falls below the minimum requirement for pay progression, which is 104 out of 208. The QMS system is mostly done at school and if an educator is not at school he/she won’t have all the requirements and won’t qualify. This means that if an educator is displaced he can’t qualify. There is no provision in Collective Agreement 8 of 2003 for same.
19. The QMS payments were a benefit payed at the discretion of the employer. He was aware that the Applicant had been placed at the district office by the District Director and Circuit Manager. There was no exceptions in the QMS; the educator either qualifies or not. The only “exception” list he knew of was when evaluation has taken place and the educator was not paid; they would be placed on a list to be paid later. The Collective Agreement also did not cover female educators who were at home for 4 months due to pregnancy, for accreditation for the said period. He could not say if there was a practice to accredit educators in circumstances where it was impossible for them to be accredited, but was adamant that the Collective Agreement did not cover same.
20. He disagreed that both Collective Agreements 4 of 2003 as well as 8 of 2003 were applicable. According to him Collective Agreement 4 of 2003 dealt with pay progression and backlogs from 1996, and IQMs started in August 2003 and was covered by Collective Agreement 8 of 2003 only.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. Section 186(2) of the LRA states that “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)
22. The payment of pay progression is performance based and is subject to a specified process and the educator meeting a set performance standard. The educator must obtain a specified mark in the evaluation in order to qualify for the progression pay. The documentation, in this regard must be submitted to the department within a specified timeframe. The Applicant did not receive progression pay for the periods of 2014 to 2017. The Respondent claims that for 2014 the Applicant failed to submit the required documentation and that in 2015 he submitted same late. On the other hand the Applicant claims that he indeed submitted same.
23. In 2014 and up to approximately July 2015, the Applicant was still placed as principal at Ntsizwa Senior Secondary School. I am accordingly of the view that there is no reason that any possible exceptions should apply to this period. The Applicant conceded that he failed to keep a submission book or any record of having made the submissions at all, let alone within the cut off period. The Applicant is bringing the claim and as such, I can see no reason for the normal principle, of he who alleges must prove, not to apply. He has not provided any proof that the said documentation was submitted at all, let alone on time. He conceded further that he was aware of the requirements and how the process worked. In view of this I do not believe that he was entitled to the payments for 2014 and 2015 years.
24. As for 2016 and 2017, it is common cause that no documents were submitted. The version of the Respondent’s witness is that only Collective Agreement 8 of 2003 is applicable and that same makes no room for any exceptions. As such if no document were submitted for this period no payments could be due. In direct response to a clarity seeking question from myself, the witness confirmed his view that if displaced to the office no evaluation could be done. Put differently, it was impossible to qualify for pay progression if displaced to the office. Based on this, I fail to understand the other argument that seems to be put forward by the Respondent, to the effect that the Applicant should still have submitted his self-evaluation whilst at the office and taken up any issues thereafter with his manager. If it is impossible to qualify whilst displaced to the office, what would the point of this be?
25. The Applicant claims that Collective Agreement 4 of 2003 is also applicable and that in terms of paragraph 4.2(d) and 4.4(b) thereof, an educator who through no fault of his own is not subjected to implementation of the evaluation instrument will qualify for salary and grade progression. As stated previously, the Respondent argues that this Collective Agreement is not applicable as it relates to historical systems being integrated into a new system.
26. The heading of Collective Agreement 4 of 2003 is “Post and Salary Structure for Educators”. Paragraph 4.1 deals with adjustment to the new salary structure. Paragraph 4.1(c) states; “The implementation of the system is with effect from 1 April 2003.” From this it is clear that a new salary structure has been introduced and that same is then affective from the aforementioned date. Paragraph 4.2 then goes on to specifically deal with Salary Progression. Paragraph 4.2(a) states; “Provision is made for a salary progression of a 1% notch increment per year based on and educator’s acceptable/satisfactory performance.” (Own underlining.) Paragraph 4.2(c) states, “That the first pay progression (notch increment) shall take place on 1 July 2003.” (Own underlining.) From the aforementioned paragraphs and specifically the potions I have underlined, it is to my mind clear that this agreement firstly deals with the very essence of this dispute, being pay progression and secondly, contemplates further increments after the first one on 1 July 2003. There is also no evidence in front of me that this Collective Agreement has come to an end or been repealed or replaced. I therefore do not accept that Collective Agreement 8 of 2003 must be viewed in isolation or as the only agreement applicable to the current matter.
27. In view of the above, I find that paragraphs 4.2(d) and 4.4(b) of Collective Agreement 4 of 2003 find application to this matter. As such, if the educator, through no fault of his own, is not subjected to the implementation of the evaluation instrument, he/she will qualify for salary and grade progression. It is common cause that the Applicant was displaced to the office during this period and that he was not subjected to evaluation. There is no evidence before me that such displacement was the fault of the Applicant. On the version of the Applicant’s own witness, once displaced to the office, no evaluation is possible. Having found that Collective Agreement 4 of 2003 is, in my view, applicable and in the absence of any evidence that the Applicant’s displacement to the office was the fault of the Applicant, I find that he is entitled to payment for the periods that he was displaced.
28. The Respondent has therefore committed an Unfair Labour Practice against the Applicant, by not paying the Applicant’s pay progression for the years of 2016 and 2017.
29. Although the Respondent disputed that any monies were owing, the parties agreed to figures as common cause in the event that the monies claimed were in fact owing. These figures take the entire claim into account and the amounts build on/affect each other. Having found that only part of the claim is payable, the agreed figures are clearly no longer correct. I have therefore recalculated the amounts owing based on the method used by the parties, as contained in bundle “B” and repeated in the Applicant’s closing arguments, with the necessary changes. In doing so, I have also used the tables provided.
30. As a result of the above, I conclude that the Applicant is in fact owed as follows:
30.1 R4007.25 (Pay progression shortfall – 1 July 2017 to 31 March 2018) (Old Notch 165)
30.2 R1416.00 (Annual increase shortfall – 1 April 2018 to 30 June 2018) (Old Notch 165)
30.3 R8545,50 (Pay progression shortfall – 1 July 2018 to 30 June 2019) (Old Notch 166)
30.4 R2996.25 (Annual increase shortfall – 1 April 2019 to 30 June 2019) (Old Notch 166)
30.5 R12024.00 (Pay progression shortfall – 1 July 2019 to 30 June 2020) (Old Notch 167)
30.6 R12204.00 (Pay progression shortfall – 1 July 2020 to 30 June 2021) (Old Notch 168)
30.7 R9159.30 (Bonus shortfall)
AWARD
31. The Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice, in terms of Section 186(2)(a) of the LRA - relating to benefits, against the Applicant, Mr Luthando Magandela, by not paying him pay progression for 2016 and 2017.
32. The Respondent, the Department of Education: Eastern Cape, is ordered to pay the Applicant, Mr Luthando Magandela, an amount of R50 352.30, less normal deductions.
33. The amount, as referred to in paragraph 32, must be paid to the Applicant by no later than 30 September 2022.
Name: Clint Enslin
(ELRC) Arbitrator
Case No.: ELRC705-21/22EC
Date of Award: 10 August 2022
In the ARBITRATION between:
Luthando Magandela
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Advocate G Saayman (NAPTOSA)
Applicant’s address:
Telephone: 083 720 13 54
Telefax:
Email antona@naptosa.org.za
Respondent’s representative: Mr N Mashoai
Respondent’s address:
Telephone: 081 046 9892
Telefax:
Email Loyiso.moshoai@edoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) 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 March, 10 May, 14 June and 20 July 2022. The proceedings were electronically recorded.
2. The Applicant, Mr Magandela, was represented by Advocate Gavin Saayman, a Legal Executive Officer of NAPTOSA, a registered trade union. The Respondent, Department of Education – Eastern Cape was represented by Mr Nelson Mashoai, a Chief Education Specialist – Employee Relations, of the Respondent.
ISSUE TO BE DECIDED
3. Whether the Respondent’s failure to pay the Applicant progression pay, 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 following facts were agreed to between the parties as common cause and there existed no dispute of fact.
5.1 The Applicant is employed as an educator (Principal).
5.2 The Applicant commenced employment with the Respondent on 29 August 1990.
5.3 The Applicant currently earns a gross salary of R615 711 per annum.
5.4 The Applicant was displaced to the district office from 2015 until September 2019.
5.5 The Applicant did not receive progression pay for 2014, 2015, 2016 and 2017.
5.6 The Applicant did receive progression pay for 2018, 2019, 2020 and 2021, but same was based on his salary which excluded the pay progression for the years set out in paragraph 5.5 above.
5.7 By not receiving pay progression, the Applicant’s pay adjustments and bonus were also affected. The cumulative amounts (adjustment and pay progression) the Applicant would have lost, by not receiving pay progression, are as contained in the document marked “B”. They were:
5.5.1 1 July 2014 to 31 March 2015 = R3244.50 (pay progression)
5.5.2 1 April 2015 to 30 June 2015 = R501.75 (annual increase shortfall)
5.5.3 1 July 2015 to 31 March 2016 = R4 995.00 (pay progression)
5.5.4 1 April 2016 to 30 June 2016 = R2 504.25 (annual increase shortfall)
5.5.5 1 July 2016 to 31 March 2017 = R11 310.75 (pay progression)
5.5.6 1 April 2017 to 30 June 2017 = R4 045.50 (annual increase shortfall)
5.5.7 1 July 2017 to 31 March 2018 = R16 266.00 (pay progression)
5.5.8 1 April 2018 to 30 June 2018 = R5 747.25 (annual increase shortfall)
5.5.9 1 July 2019 to 31 March 2019 = R21 672.00 (pay progression)
5.5.10 1 April 2019 to 30 June 2019 = R6 599.75 (annual increase shortfall)
5.5.11 1 July 2019 to 30 June 2020 = R36 780.00 (pay progression)
5.5.12 1 July 2020 to 30 June 2021 = R34 152.00 (pay progression
5.5.13 R21 259.70 in total bonus for the entire period.
5.5.14 The total amount that would be owing, if the Applicant had received his progression pay for the entire period in question, would be the sum of the amounts contained document “B” and as is reflected in 5.5.1 to 5.5.13 above.
5.5.15 The monies claimed are a benefit.
6. The Respondent handed in 2 bundles of documents, marked “A” and “B” respectively. It was agreed that the documents in bundle “A” were what they purported to be.
7. The Applicant seeks payment of the monies set out in paragraphs 5.5.1 to 5.13 above.
8. The parties submitted written closing arguments.
9. The matter was recorded electronically.
SURVEY OF EVIDENCE AND ARGUMENT
10. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
evidence and arguments heard and considered in deciding this matter.
APPLICANT’S CASE
Mr Luthando Magandela
11. Mr Magandela, the Applicant in the matter, testified that he was appointed as principal on 12 June 1996. As a principal he was involved in IQMS scoring for teachers and the scoring is done for a period running from January to December of each year. He was displaced as principal, after June in 2015. He could not be evaluated for the period starting in 2014 until 2017 as the Respondent had not placed him in an area where he could be evaluated. He accordingly did not receive pay progression for this period.
12. He did submit scores for 2014. It was submitted in Mount Frere, however, he could not recall to who he submitted same. His manager had evaluated him. He disputed that he had submitted 2015 scores late. The Respondent had not informed him that even though he was not in the school, he must still submit documents. He did not submit any documents for 2016, 2017 and 2018 as he was displaced during this period. The IQMS evaluation is for a period of January to December and if successful the pay progression is the received on 1 July of the following year. He had received pay progression on 1 July 2018, despite the fact that he was still displaced in 2017 and had not submitted any documents for this period.
13. ELRC Collective Agreement 8 of 2003, “A” page 2, under step 2 states: “If the IQMS structures are not in place, the WSE team leader to request the Regional/District/Area Manager to provide advocacy and training around QMS. The Regional/District/Area Office to make the necessary arrangements with the school principal to do so……..” He found himself in such special circumstances as there was no IQMS structures in place for him to be evaluated. The District Manager was aware of this, but failed to make arrangements for him to be evaluated. He could not understand why the Respondent claimed that they would not pay him for 2014 to 2017 due to lack of papers being submitted, yet they had paid him for 2018 without any papers being submitted. He was still displaced during this period.
14. Page 14 of “A” indicated that he had been evaluated for 2015 (January to December) and found to be satisfactory. He was, however, not paid for this period. He believed the Respondent’s systems were inconsistent. Page 15 of “A” indicated that he was evaluated for 2019 (January to December) and that he was found to be satisfactory. He had only returned from the office late in 2019 and yet he was evaluated for the year according to the document on page 15.
15. He was initially displaced in 2015. He believed it was in July, but knew it was definitely after June. In 2014 he was still at the school. In 2015 he was also at the school until he was displaced. In 2016 & 2017 he was at the local office in Mount Ayliff. He had therefore been reporting at the said office since approximately July 2015. As a principal he reported to his line/circuit manager. He was at the school in 2014 and had been accessed. His circuit manager from 2014 to 2017 was Mr G Spencer. In 2014 he had submitted his IQMS documents to the office of the IQMS co-ordinator. He could not recall the exact person it was submitted to. He did not have a submission book. He normally did submissions without a book. He had not submitted any evaluation documents for 2015, 2016, 2017 or 2018. He did not know what the event numbers on page 5 of “Ä” signified. Although the code for 2018 may not indicate that it was pay progression, the notch column indicated an increase.
16. He was aware of the IQMS Collective Agreement, which required a performance evaluation with a satisfactory outcome. Although he had not submitted any documents for 2015, 2016, 2017 or 2018 he believed it was an exceptional situation as he was not placed where he could perform his duties where they could be evaluated. He had not asked the employer to be assessed. He had also not spoken with Mr Spencer, who was at the office where he was reporting, about his submission as he believed Mr Spencer was aware of him and would deal with the situation. He had spoken with the IQMS co-ordinator who said that his matter was with HR. There was no IQMS structure at the district office where he was placed.
RESPONDENT’S CASE
Mr Ntsikilelo Salukazana
17. Mr Salukazana testified that he was an IQMS co-ordinator from 2017 to 2021. There was a revision in terms of Collective Agreement 2 of 2020 and as such he is now a QMS co-ordinator. The process is driven by 3 programs which are integrated. They are development appraisal, performance management and whole school evaluation. The reason the Applicant was not paid relates to the performance management portion. QMS is evidence based and the school should have a master file with duplicates of all documents used in the process. This evidence should include pre and post evaluation minutes, minutes of meetings and performance standard rating. After all is done the principal submits the documents for the year to the district office by the end of the year. There is usually a circular giving guidance on the cut-off date. If the documents are not submitted by the cut-off date, no payment is made.
18. The Applicant submitted his documents late for 2015 and as such he was not paid for same. If there is no evidence of evaluation the individual will receive a 1 rating and falls below the minimum requirement for pay progression, which is 104 out of 208. The QMS system is mostly done at school and if an educator is not at school he/she won’t have all the requirements and won’t qualify. This means that if an educator is displaced he can’t qualify. There is no provision in Collective Agreement 8 of 2003 for same.
19. The QMS payments were a benefit payed at the discretion of the employer. He was aware that the Applicant had been placed at the district office by the District Director and Circuit Manager. There was no exceptions in the QMS; the educator either qualifies or not. The only “exception” list he knew of was when evaluation has taken place and the educator was not paid; they would be placed on a list to be paid later. The Collective Agreement also did not cover female educators who were at home for 4 months due to pregnancy, for accreditation for the said period. He could not say if there was a practice to accredit educators in circumstances where it was impossible for them to be accredited, but was adamant that the Collective Agreement did not cover same.
20. He disagreed that both Collective Agreements 4 of 2003 as well as 8 of 2003 were applicable. According to him Collective Agreement 4 of 2003 dealt with pay progression and backlogs from 1996, and IQMs started in August 2003 and was covered by Collective Agreement 8 of 2003 only.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. Section 186(2) of the LRA states that “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)
22. The payment of pay progression is performance based and is subject to a specified process and the educator meeting a set performance standard. The educator must obtain a specified mark in the evaluation in order to qualify for the progression pay. The documentation, in this regard must be submitted to the department within a specified timeframe. The Applicant did not receive progression pay for the periods of 2014 to 2017. The Respondent claims that for 2014 the Applicant failed to submit the required documentation and that in 2015 he submitted same late. On the other hand the Applicant claims that he indeed submitted same.
23. In 2014 and up to approximately July 2015, the Applicant was still placed as principal at Ntsizwa Senior Secondary School. I am accordingly of the view that there is no reason that any possible exceptions should apply to this period. The Applicant conceded that he failed to keep a submission book or any record of having made the submissions at all, let alone within the cut off period. The Applicant is bringing the claim and as such, I can see no reason for the normal principle, of he who alleges must prove, not to apply. He has not provided any proof that the said documentation was submitted at all, let alone on time. He conceded further that he was aware of the requirements and how the process worked. In view of this I do not believe that he was entitled to the payments for 2014 and 2015 years.
24. As for 2016 and 2017, it is common cause that no documents were submitted. The version of the Respondent’s witness is that only Collective Agreement 8 of 2003 is applicable and that same makes no room for any exceptions. As such if no document were submitted for this period no payments could be due. In direct response to a clarity seeking question from myself, the witness confirmed his view that if displaced to the office no evaluation could be done. Put differently, it was impossible to qualify for pay progression if displaced to the office. Based on this, I fail to understand the other argument that seems to be put forward by the Respondent, to the effect that the Applicant should still have submitted his self-evaluation whilst at the office and taken up any issues thereafter with his manager. If it is impossible to qualify whilst displaced to the office, what would the point of this be?
25. The Applicant claims that Collective Agreement 4 of 2003 is also applicable and that in terms of paragraph 4.2(d) and 4.4(b) thereof, an educator who through no fault of his own is not subjected to implementation of the evaluation instrument will qualify for salary and grade progression. As stated previously, the Respondent argues that this Collective Agreement is not applicable as it relates to historical systems being integrated into a new system.
26. The heading of Collective Agreement 4 of 2003 is “Post and Salary Structure for Educators”. Paragraph 4.1 deals with adjustment to the new salary structure. Paragraph 4.1(c) states; “The implementation of the system is with effect from 1 April 2003.” From this it is clear that a new salary structure has been introduced and that same is then affective from the aforementioned date. Paragraph 4.2 then goes on to specifically deal with Salary Progression. Paragraph 4.2(a) states; “Provision is made for a salary progression of a 1% notch increment per year based on and educator’s acceptable/satisfactory performance.” (Own underlining.) Paragraph 4.2(c) states, “That the first pay progression (notch increment) shall take place on 1 July 2003.” (Own underlining.) From the aforementioned paragraphs and specifically the potions I have underlined, it is to my mind clear that this agreement firstly deals with the very essence of this dispute, being pay progression and secondly, contemplates further increments after the first one on 1 July 2003. There is also no evidence in front of me that this Collective Agreement has come to an end or been repealed or replaced. I therefore do not accept that Collective Agreement 8 of 2003 must be viewed in isolation or as the only agreement applicable to the current matter.
27. In view of the above, I find that paragraphs 4.2(d) and 4.4(b) of Collective Agreement 4 of 2003 find application to this matter. As such, if the educator, through no fault of his own, is not subjected to the implementation of the evaluation instrument, he/she will qualify for salary and grade progression. It is common cause that the Applicant was displaced to the office during this period and that he was not subjected to evaluation. There is no evidence before me that such displacement was the fault of the Applicant. On the version of the Applicant’s own witness, once displaced to the office, no evaluation is possible. Having found that Collective Agreement 4 of 2003 is, in my view, applicable and in the absence of any evidence that the Applicant’s displacement to the office was the fault of the Applicant, I find that he is entitled to payment for the periods that he was displaced.
28. The Respondent has therefore committed an Unfair Labour Practice against the Applicant, by not paying the Applicant’s pay progression for the years of 2016 and 2017.
29. Although the Respondent disputed that any monies were owing, the parties agreed to figures as common cause in the event that the monies claimed were in fact owing. These figures take the entire claim into account and the amounts build on/affect each other. Having found that only part of the claim is payable, the agreed figures are clearly no longer correct. I have therefore recalculated the amounts owing based on the method used by the parties, as contained in bundle “B” and repeated in the Applicant’s closing arguments, with the necessary changes. In doing so, I have also used the tables provided.
30. As a result of the above, I conclude that the Applicant is in fact owed as follows:
30.1 R4007.25 (Pay progression shortfall – 1 July 2017 to 31 March 2018) (Old Notch 165)
30.2 R1416.00 (Annual increase shortfall – 1 April 2018 to 30 June 2018) (Old Notch 165)
30.3 R8545,50 (Pay progression shortfall – 1 July 2018 to 30 June 2019) (Old Notch 166)
30.4 R2996.25 (Annual increase shortfall – 1 April 2019 to 30 June 2019) (Old Notch 166)
30.5 R12024.00 (Pay progression shortfall – 1 July 2019 to 30 June 2020) (Old Notch 167)
30.6 R12204.00 (Pay progression shortfall – 1 July 2020 to 30 June 2021) (Old Notch 168)
30.7 R9159.30 (Bonus shortfall)
AWARD
31. The Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice, in terms of Section 186(2)(a) of the LRA - relating to benefits, against the Applicant, Mr Luthando Magandela, by not paying him pay progression for 2016 and 2017.
32. The Respondent, the Department of Education: Eastern Cape, is ordered to pay the Applicant, Mr Luthando Magandela, an amount of R50 352.30, less normal deductions.
33. The amount, as referred to in paragraph 32, must be paid to the Applicant by no later than 30 September 2022.
Name: Clint Enslin
(ELRC) Arbitrator