ELRC2-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HEARD VIRTUALLY VIA ZOOM

Case No ELRC2-22/23EC

In the matter between

NAPTOSA obo KAPP, AMANDA Applicant

and

THE DEPARTMENT OF EDUCATION: EASTERN CAPE First Respondent


Arbitrator: Pumeza Ndabambi

Date of award: 6 September 2022

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) - unfair conduct relating to the provision of benefits - re-appointment on a lower salary scale.


ARBITRATION AWARD


DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC)for arbitration, in terms of section 191(5)(a)(iv) of the Labour Relations Act 66, 1995, (the LRA). The Applicant, Ms Amanda Kapp, was represented by Adv G. D. Saayman, an official of NAPTOSA and the Respondent, Department of Education: Eastern Cape, was represented by Ms Annelie Slabbert, the Employee Relations Officer.

2. The proceedings were held virtually through Zoom and were recorded electronically.

ISSUE TO BE DECIDED

3. I am required to determine whether the conduct of the Respondent in re-appointing the Applicant on a lower salary notch amounts to an unfair labour practice, and if so, determine an appropriate remedy.

BACKGROUND TO THE DISPUTE

4. The Applicant holds the position of a Post Level 1 Educator to which she was re-appointed on 1 February 2018, after a break in service and her re-appointment was made on an incorrect salary scale as she was previously a Post Level 2 Educator. The Applicant seeks re-adjustment of her salary scale and back pay from the date of re-appointment to 30 September 2022.

EVIDENCE AND ARGUMENT

5. It is the parties stated case that the Applicant was re-appointed with effect from 1 February 2018 after a break in service. She previously held the position of a Level 2 Educator but was re-appointed as a Post Level 1 Educator with the salary scale thereof.

6. The Respondent is not in dispute with the Applicant’s evidence and led by a witness, Ms Bonita Weitz who confirmed that indeed the Applicant’s re-appointment is as what the Applicant claims and that it should be rectified to reflect the correct post level. She stated that the re-appointment will be rectified and that the back pay due to the Applicant is R133 017 up to and including 30 September 2022. The Respondent is therefore not opposed to the proposed remedy and seeks an arbitration award to that effect.


ANALYSIS OF SUBMISSIONS

7. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices, giving effect to section 23 of the Constitution of the Republic of South Africa. This dispute is referred as an unfair labour practice dispute in which the onus rests on the employee to prove the conduct complained of.

8. In this matter it is common cause that the Applicant’s re-appointment was effected on a lower salary scale and that the remedy sought is for rectification of such an error as it is common cause that the Applicant previously held a Post Level 2 Educator position. The evidence presented is not contested by the Respondent, as they indicated they seek an award giving effect to the issues agreed upon by the parties as common cause. The parties further agreed that the amount of R133 017. 00 is subject to tax and other lawful deductions.

9. I must therefore find that the Applicant discharged the onus as required in showing that the Respondent committed an unfair labour practice in re-appointing her at a lower scale.

10. In the circumstances, I must grant the remedy as prayed for by the Applicant and agreed upon by the Respondent.

11. In the circumstances, the following award is issued:

AWARD

12. The conduct of the Respondent, Department of Education: Eastern Cape, in re-appointing the Applicant, Ms Amanda Kapp, on a lower salary scale, constitutes an unfair labour practice.

13. The Respondent, Department of Education: Eastern Cape, is ordered to rectify the Applicant’s re-appointment to a Post Level 2 Educator, as it is the position she previously held before her re-appointment, with effect from 1 February 2018 by no later 1 October 2022.

14. The Respondent, Department of Education: Eastern Cape, is further ordered to pay the amount of R133 017. 00, being the backpay due to the Applicant, Ms Amanda Kapp, as a result of the incorrect salary scale, up to and including 30 September 2022, subject to tax and other legal deductions.

15. The Respondent, Department of Education: Eastern Cape, is ordered to pay the amount in paragraph 14 above by no later than 30 September 2022.


PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COU