ELRC1014-21/22EC

Panelist: Sally-Jean Pabst
Case No.: ELRC1014-21/22EC
Date of Award: 18 September 2022

In the ARBITRATION between:

NAPTOSA obo Ms Lorraine Bonani
(Union / Applicant)

and

Education Department of the Eastern Cape
(Respondent)

Applicant: Email: nolamiya2@gmail.com
Persal number: 11096551

Applicant’s representative: Mr Anton Adams – NAPTOSA
Email: AntonA@naptosa.org.za

Respondent’s representative: Ms Annalie Slabbert – EC DOE
Email: Ansie68LRO@gmail.com

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration into the abovementioned alleged unfair labour practice dispute, referred to the ELRC for arbitration in terms of section 186(2) of the Labour Relations Act 66 of 1995 (“the LRA”), was conducted on 26 August 2022 virtually via Zoom and video-recorded with the consent of the parties.
2. The Applicant, Ms Lorraine Bonani (“Ms Bonani”) was present and represented by Mr Anton Adams, Senior Executive Officer of the union NAPTOSA (“Mr Adams”).
3. The Respondent, the Eastern Cape Department of Education (“the ECDOE”) was represented by Ms Annalie Slabbert, its Labour Relations Practitioner (“Ms Slabbert”).
4. The parties handed up a combined bundle of documents consisting of 23 pages which were agreed to be what they purport to be. The contents would be dealt with in evidence by both parties.
5. The parties submitted written closing arguments – the last of which reached me on 2 September 2022.

ISSUE TO BE DECIDED
6. I must determine whether the Respondent committed an unfair labour practice by failing or refusing to upgrade the school from a P3-level school to a P4-level school, with Ms Bonani’s accompanying salary increase to that of a P4-level principal, with effect from 1 January 2022.
7. In terms of the LRA the Applicant bears the onus to prove that the Respondent committed the alleged unfair act or omission that may be construed as an unfair labour practice (“ULP”) as described in s186(2) of the LRA.
8. If a ULP has been confirmed, I must determine the appropriate remedy in terms of sections 193 and 194 of the LRA.
9. In relief Ms Bonani wishes for the school to be upgraded to a P4 school, and for her salary to be retrospectively adjusted to R 47,599.00 – effective from 1 January 2022.

BACKGROUND TO THE MATTER
10. Ms Bonani is the Principal of James Ndulula Primary School (“the school”) in Uitenhage, and had been appointed as such by the ECDOE on 1 October 2019.
11. She is currently earning a gross salary of R 43,719.75 per month.
12. Ms Bonani alleges that the ECDOE had unfairly neglected or refused to:
12.1. upgrade the school from an P3 to an P4 school on 1 January 2022, and
12.2. to adjust her gross salary on 1 January 2022 to R 47,599.00 per month in accordance with the school being a P4 school.
13. The parties agreed to rely on the interpretation of both ELRC Collective Agreement 3 of 2006 (“the Collective Agreement”) and the Personnel Administrative Measures (“the PAM”) at section A.3 to prove the alleged eligibility or ineligibility to the upgrade of the school and Ms Bonani’s salary.
14. The parties further agreed that in terms of the Collective Agreement, at 4.1, under the heading “Re-grading of schools”, at (c), every school is annually graded.
15. The grading-level of a school is in terms of the number of educators allocated to the school, which in turn affects the grading and salary level of the principal – see the PAM at A.3.1.
16. The number of educators allocated to a school is in turn determined by the number of learners registered for the succeeding year, to that school.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s Evidence
17. Mr Anton Adams testified under oath that in 2019, when Ms Bonani was appointed, the school had a staffing establishment of 25 educators. In 2020 it was 26, and in 2021 also 26 educators.
18. The Collective Agreement holds, in 4.1, under the heading “Re-grading of schools” that:
“(a) A school is up-graded to a higher grading level if, for two consecutive years, the educator post-allocation to the school reaches or exceeds the number of posts required for the up-grading of the school as indicated in the table.”
and at (c):
“(c) Re-grading of schools should be done on an annual basis and should be effective from 1 January, based on the school’s post establishments of the previous year and of the current year.”
19. The school was an S10 school, referred to as grade level P3, up until the end of 2021.
20. In the years 2020 and 2021 the school had 26 educators allocated.
21. Therefore it is the Applicant’s case that the school should have been up-graded on 1 January 2022 in terms of 2 consecutive years with 26 educators.
22. For the school to move up to an S11 / P4 level, it needs to be allocated 26 or more posts allocated to the school.
Respondent’s Evidence
23. Ms Nosipho Mduma testified under oath that she is the Assistant Director of Human Resources (HR) for the Respondent.
24. She explained the grading of schools is capacitated in the Provincial Office, to which she is in turn instructed to effect the grading.
25. Regarding the school, James Ndulula Primary School, the PPN (post establishments) for each year she had set out in evidence in her below handwritten notes:

26. Ms Mduma introduced the “Final Post Establishments” for each year from 2018 to 2022, in the evidence bundle, corroborating her summarised handwritten notes.
27. She asserts that the school is not graded as a P4 this year (2022), even though the “Final Post Establishments 2022” in evidence shows the school as “Grading: P4”.
28. She reiterated it is the Respondent’s case that “Grading: P4” is an error on the 2022 document, as in terms of the “Total Posts” allocated to the school on the same document, it is clearly “22” allocated for 2022.
29. She agreed that, in 2020 and 2021, in terms of 26 posts allocated in two years, the school should have been P4, but not now in 2022.
30. She explained that one must look at the trend of the school, over the years.
31. During cross-questioning the witness was referred to both the Collective Agreement and to A.3.3 of the PAM:
“A.3.3 A school is up-graded to a higher grading level if, for two consecutive years, the educator post allocation to the school reaches or exceeds the number of posts required for the up-grading of the school as indicated in the table.”

32. This is notably the exact same wording as stated in the Collective Agreement, which has in addition, at
“(b) A school is down-graded to a lower grading level if, for two consecutive years, the educator post allocation to the school drops to or below the number of posts that will effect such down-grading as indicated in the table.”
33. Mr Adams put to the witness that grading must be done every year, but an up- or down-grade is only to be effected at the end of the year after which a school was on either the higher, or the lower, post-allocation for two consecutive years.
34. This was indeed the case for James Ndulula Primary School in 2020 and 2021 having had 26 educators allocated. Only then at the end of 2021 the school should have been upgraded in terms of the PAM and the Collective Agreement to P4 level from 1 January – as is also indicated on the “Final Post Establishments 2022” in evidence, correctly showing the school as “Grading: P4”.
35. Ms Mduma reiterated her disagreement with the “Grading: P4” indicated on the “Final Post Establishments 2022” being correct, and stated she agrees with the school the previous two years having to have been graded as P4-level, but not now anymore – not in 2022 with it having an allocation of only 22 educators for this year.
36. Mr Adams explained that in light of the re-grading being done annually, this does not mean that the school’s grading will be amended every year. In any specific year, it might or might not be, up- or down-graded.
37. He reiterated that it is only when either the higher- or the lower-level of post-allocations persist for 2 consecutive years – only then the a school’ grading is changed at the usual annual re-grading time.
38. Ms Mduma expressed her contention that her interpretation is different from that of Mr Adams, to which Mr Adams said that the EC DOE made no mistake stipulating “Grading: P4” as indicated on the “Final Post Establishments 2022” in evidence. Adams is convinced the document is correct in terms of the PAM and the Collective Agreement, as it is an undisputed fact that the school had 26 posts in both 2020 and 2021.
39. He went on explaining that if James Ndulula Primary School end up having 22 posts in 2023, as it does now in 2022, then the current P4 level will have to be down-graded again, at the end of 2023, to P3.
40. Mr Adams avers that will be compliant to the PAM A.3.3 and the Collective Agreement in evidence, because it will be correct in terms of 2022 and 2023 having been the 2 consecutive years at the lower staff-allocation. But for at least the 2 years – 2022 and 2023 – the school must remain, as correctly stated in the “Final Post Establishments 2022”, a P4-graded school.
41. Ms Slabbert next explored with Ms Mduma the required procedure that a school must follow for up-grading of the school, and the effect it has on the post of the school’s principal.
42. Ms Mduma explained that a school, specifically the school governing body (SGB), must direct a request in writing to the ECDOE, stating that in terms of a school being eligible for up-grading, the SGB would also like to request the principal be retained and said principal’s post also be accordingly upgraded to the higher grade-level.
43. She further testified that to her knowledge the SGB of James Ndulula Primary School did not direct any such written request to this extent to ask firstly for the school to be up-graded, nor secondly for an upgrade to be coincide with Ms Bonani being retained as principal and her position to be up-graded with that of the school’s.
44. Ms Mduma explained that the SGB not having made this request may also result in the school principal’s position becoming a vacant position and the post advertised.
45. Ms Annalie Slabbert testified under oath, and referred to a letter in the evidence bundle showing that in November 2019 the SGB of James Ndulula Primary School in fact wrote exact such a letter as set out above to the Respondent, and had made the abovementioned request for the school to be upgraded and Ms Bonani to be retained. This shows the policy and procedure is known to this school’s SGB and even to Ms Bonani. Yet, no such letter was at the end of 2021 directed to the Respondent the ECDOE.
46. She referred to the PAM at section B.7, in terms of the Respondent contending that the school SGB should have directed a letter specifically at the end of 2021 (again) asking for the school to be up-graded to P4 and to recommend Ms Bonani to be retained in her post.
“B.7 POSITION OF A PRINCIPAL IN A CASE WHERE A SCHOOL IS REGRADED (UPGRADED OR DOWNGRADED)
B.7.1 When a school is regraded, the post of the principal is regarded as a new and, therefore, vacant post. Such a post must, subject to these measures, be filled in terms of paragraph B.5 without undue delay.
B.7.2 If the permanent incumbent of a principal post that has been upgraded, qualifies to be upgraded to the new level and the SGB recommends in writing that the person may be upgraded to the higher level, such appointment may be made without having to advertise the post. If the SGB does not make such a recommendation, the post must be advertised in which case the incumbent will be entitled to apply for the upgraded post and he/she must be short-listed.
B.7.3 If such a principal’s application for appointment to the upgraded post is unsuccessful, he/she will be regarded as in addition to the establishment as a result of operational requirements and must be dealt with in terms of paragraph B.6.
B.7.4 A principal whose post has been downgraded, will retain …”
47. Mr Adams retorted that the Head of Department (HOD) is tasked with informing the SGB that a school is eligible for an up-grade. The Respondent’s witnesses both agreed it is indeed the responsibility of the HOD – that it is usually done with the Final Post Establishment, and conceded it had not been done in this case.
48. Mr Adams went on explaining that the letter in 2019 is indicative that the SGB of James Ndulula Primary School have already recommended Ms Bonani to be retained when the school reaches eligibility to be up-graded from a P3 to a P4 school. To this, as the HOD neglected to inform the SGB that the school now qualifies, but the HOD never did this, which was an unfair act or omission by the Respondent.
49. The commissioner enquired as to why the Head of Department – the entity who issued the “Final Post Establishments 2022” in evidence – is not testifying to this document and whether the “Grading: P4” on the document is, or is not, a mistake. The parties both informed the commissioner that in terms of the ELRC Constitution as amended the HOD may not testify at an arbitration.
50. In conclusion Ms Slabbert stressed the importance of a school to always submit a written letter approved by the SGB to the ECDOE, requesting the re-grading of the school when eligible, particularly more so when it is the wish of the school to retain the school’s current principal.
51. In conclusion, Mr Adams reiterated that the “Final Post Establishments 2022” of James Ndulula Primary School is an official document from the Department of Education, and no retraction or variation of this document has since been issued by the HOD or the Department to withdraw or amend it
52. The “Final Post Establishments 2022” states clearly, and in accordance with both the PAM A.3.3 and Collective Agreement 3 of 2006, that this school must in terms of its 2020-2021 post establishments to be a P4-grade school from 1 January 2022. Ms Bonani’s salary must accordingly also be adjusted.

ANALYSIS OF EVIDENCE AND ARGUMENT
53. Much time was spent gyrating the below excerpt from both the PAM and the Collective Agreement:
“A school is up-graded to a higher grading level if, for two consecutive years, the educator post allocation to the school reaches or exceeds the number of posts required for the up-grading of the school as indicated in the table.”
54. To this, the Applicant wishes for the 2020 and 2021 post allocations to be applied, whereas the Respondent wishes for the 2021 and 2022 post allocations to be applied in light of its interpretation of the evidenced excerpt of the Collective Agreement, in 4.1, under the heading “Re-grading of schools”, at (c) that:
“(c) Re-grading of schools should be done on an annual basis and should be effective from 1 January, based on the school’s post establishments of the previous year and of the current year.”
55. Interpretation of the above excerpt (c) is in my view the actual contentious issue in this dispute. As it stands, its interpretation is dependent on which side of the year-end (1 January) you read it in.
56. For this dispute, the Respondent wants it read and interpreted as at 1 January 2022 or thereafter – making the current year 2022 and the previous year 2021. Contrarily, the Applicant party wishes for it to be read and interpreted as at 31 December 2021 or before, because the end of 2021 was the 2nd year the post establishments of James Ndulula Primary School was 26.
57. I note that the various “Post Establishments”-documents in evidence for every year is signed off around September/October/November of the previous year. In my view this clarifies the misinterpretation of the Respondent, as clearly it must be the end of every year that the annual re-grading must be assessed for any possible grade-amendment to be effected from 1 January of the following year, as clearly stated in Collective Agreement, in 4.1, under the heading “Re-grading of schools”, at (c) “from 1 January”.
58. The HOD earmarked James Ndulula Primary School as “Grading: P4” at the top-right of the “Final Post Establishments 2022” – this document dated 16 November 2021 – not 1 January 2022. Whereas the Respondent claims “Grading: P4” to be a mistake made on the document, and the Applicant claims “Grading: P4” is absolutely correct. I must agree with Mr Adams – to date the Respondent, in terms of disputing the school’s upgrade and the associated salary increase for Ms Bonani, have not brought any contradictory submissions from the elusive HOD who authored this document.
59. I do fully agree that at the end of 2021, with effect from 1 January 2022, James Ndulula Primary School should have been made a P4 school, and this status will only be amendable once there is either a higher or a lower post establishment persistent for two consecutive years. Until then, as correctly noted on the “Final Post Establishments 2022”, the school is definitely correctly a P4 school from 2022, with effect from 1 January 2022.
60. I found no application of the two arbitration awards Mr Adams added to the evidence bundle at the end of the testimony, as in both awards the dispute related to principals newly-appointed in posts not having been remunerated in accordance with the school’s grade-level. That is not the case here. James Ndulula Primary School upgrade is in dispute, and it is not in dispute that a principal’s salary should coincide with a school’s grade-level.
61. Mr Adams testified that the letter from the SGB of James Ndulula Primary School the Respondent introduced into evidence to show the school knows about the need to direct such a request is also indicative that the SGB already recommended Ms Bonani to be retained when the school becomes eligible to be up-graded from a P3 to a P4 school – no need to do this again. I agree with this, and therefore see no need for the SGB to have done this again in light particularly of at the time in 2019 the school was not having been eligible for an upgrade, but now it may well be in terms of the 2020-2021 staff establishments. The Respondent clearly – from it being the party who introduced this into evidence – cannot claim it was unaware of the SGB’s wishes to have an upgrade to P4 effected, and to retain Ms Bonani with the accordingly increased P4-level salary.
62. Interestingly, if the Respondent had won this argument, from a bird’s eye view in this dispute the two consecutive years’-requirement then would have essentially been a three consecutive years’ requirement – contrary to the PAM and the Collective Agreement. This because of the 26-staff establishment in 2020 which was wholly disregarded by the Respondent, who in its arguments blindly insisted 2022 stands at 22 staff, thereby disqualifying the school from upgrade.
Relief
63. Ms Bonani expressed her wish for James Ndulula Primary School to be officially upgraded from P3 to a P4 school, and for her salary to be accordingly increased retrospectively from 1 January 2022, to R 47,599.00.
64. As no evidence was lead of any additional consequent changes to the upgrade of a school from a P3 to P4 school – other than it being noted on the “Final Post Establishments 2022” together with the salary increase of the school principal – I order that the school be officially up-graded to a P4-level grade school and should therefore have any and all such consequences applicable.
65. Ms Bonani’s salary must be increased from R 43,719.75 per month to R 47,599.00 per month with effect from 1 November 2022, and she must receive retrospective backpay of the difference between the P4 and the P3 level salaries for the 10 months from 1 January 2022 to 31 October 2022.

AWARD
66. I find that the Respondent, the Eastern Cape Department of Education, perpetrated an unfair labour practice as set out in section 186(2)(a) of the LRA in that it did not up-grade James Ndulula Primary School to a P4-level school with effect from 1 January 2022, and in that it did not up-grade the Applicant Ms Lorraine Bonani to a P4-level principal of James Ndulula Primary School with effect from 1 January 2022.
67. The Respondent is ordered to effect the up-grade of James Ndulula Primary School to a P4-level school retrospectively with effect from 1 January 2022, and to up-grade the employment status of the Applicant Ms Lorraine Bonani to that of a P4 Principal with effect from 1 January 2022.
68. The Respondent must comply with paragraph 69 by no later than 31 October 2022.
69. Further in terms of the unfair labour practice perpetrated, the Applicant is also entitled to the retrospective salary increase in relief that she wished for. Therefore further to paragraph 69 above, the Respondent is ordered to pay the Applicant the difference between a P4 salary of R 47,599.00 and a P3 salary of R 43,719.75, for the 10 (ten) retrospective months from 1 January 2022 to 31 October 2022, calculated as follows:
R 47,599.00 (P4) – R 43,719.75 (P3) = R 3,879.25
R 3,879.25 X 10 (retrospective months) = R 38,792.25
70. The Respondent, the Eastern Cape Department of Education, must pay the Applicant, Ms Lorraine Bonani, with Persal Number 11096551 the amount of R 38,792.25 by no later than 31 October 2022.

Commissioner Sally-Jean Pabst
ELRC Arbitrator