ELRC1024-21/22EC

Panelist: Sally-Jean Pabst
Case No.: ELRC1024-21/22EC
Date of Award: 14 December 2022

In the ARBITRATION between:

NAPTOSA obo KLEYI, Mr Mzwandile
(Union / Applicant)


and


Eastern Cape Department of Education
(Respondent)


Applicant: Email: kleyim1@gmail.com
Persal number: 54086574

Applicant’s representative: Adv Gavin Duncan Saayman - NAPTOSA
Email: cosec@naptosa.org.za


Respondent’s representative: Mr Samuel Liphant Louw – Eastern Cape Education Department
Email: samuel.louw@ecdoe.gov.za

DETAILS OF HEARING AND REPRESENTATION
1. The Applicant referred an unfair labour practice dispute to the ELRC in terms of 191(5)(a)(iv) of the LRA. The arbitration hearing was conducted virtually via Zoom and recorded with the consent of the parties, on 25 November 2022. The Applicant, Mr Mzwandile Kleyi, was present and represented by Advocate Saayman from the National Professional Teachers' Organisation of South Africa (NAPTOSA). The Respondent, the Eastern Cape Education Department, was represented by Mr Samuel Louw.
2. The parties each submitted a bundle of evidence, to which all documents were agreed to be what they purport to be. After the conclusion of the arbitration, the parties submitted written closing arguments by 29 November 2022.

ISSUE TO BE DECIDED
3. I am required to determine whether or not the Respondent, the Eastern Cape Education Department, committed an unfair labour practice as set out in section 186(2)(a) of the LRA in not appointing the Applicant, Mr Mzwandile Kleyi, as a P4 Principal at Nathaniel Nyaluza High School.
4. The Applicant’s expressed wish is to be compensated up to the amount of 12 months’ salaries, if an unfair labour practice is confirmed.

BACKGROUND
5. In terms of narrowing the issues at the commencement of the arbitration hearing as well as contained in the pre-arbitration minute, the parties agreed that the following were accepted as common cause facts:
5.1. The Applicant was employed by the Respondent as a Principal (P3) at Nathaniel Nyaluza High School from 24 May 2021, and he commenced his duties as Principal on 29 May 2021. Prior to his appointment he was a Deputy Principal P3.
5.2. The Applicant’s current salary is R519,270.00 per annum, that equating to a current salary of R43,272.50 per month.
5.3. The position the Applicant applied for at Nathaniel Nyaluza High School had been erroneously advertised as a P4, instead of a P3 Principal position, in terms of the common cause fact that the school is indeed graded as a P3 school.

SURVEY OF EVIDENCE AND ARGUMENT
6. As provided for in terms of Section 138(1) of the LRA I conducted the arbitration in a manner that I considered appropriate in order to determine the dispute fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities.
7. In terms of s138(7)(a) of the LRA, I only include evidence I found particularly relevant in making a decision. Accordingly, below is a brief summary of the evidence I found pertinent in determining the outcome of the dispute.
Applicant’s Evidence
8. Witness testimony under oath was brought by Advocate Saayman and by the Applicant, Mr Kleyi.
9. Advocate Saayman testified under oath to a detailed explanation of the pay progression and adjustment document in evidence, and to the various notches with relation to the grades in terms of the tables in evidence, to illustrate the extent of the Applicant’s financial prejudice brought about by him accepting a P3 grade position as opposed to a P4 grade position.
10. Adv Saayman testified that Mr Kleyi’s post was advertised at number 243 in Bulletin Volume 4 of 2020 in evidence, and that in terms of said advertisement the school's name is Nathaniel Nyaluza High School, in the district of Sarah Baartman, Grahamstown, and the advert bulletin indicates the grading of the school as P4 graded level, that accordingly it may be inferred that the Principle should be paid a P4 grade level salary. He added that all Principals are P4, but the grading of the school determines your salary grade – the higher the grade of the school, the higher the salary of the Principal of the specific school.
11. The mere fact that Mr Kleyi was placed at the school under the impression that it was a P3 school, to which the Respondent never informed him otherwise before issuing him with his appointment letter – the Respondent essentially denied the Applicant the opportunity to rather choose a school that is at a P4 grade level. In fact, the Applicant was at the time also successfully recommended for another P4 grade level Principal post, in Humansdorp, which he could have rather accepted. It is the Applicant’s case that this constitutes an unfair labour practice relating to promotion that Mr Kleyi was brought and left under this misrepresentation which ultimately, because he declined the other post, he is now in a situation where he has to made do with a lower salary – that of a P3 Principal, whereas he is qualified to fill a P4 grade level position – which is what he applied for.
12. Right after Mr Kleyi became aware of the mistake when he received his first salary as Principal, lodged a grievance in September 2021. In his grievance he requested his salary be rectified as he feels the advert misled him, as he applied for P4 and not P3.
13. Based also on the grievance that Mr Kleyi lodged, the District Director even made and supported a request to upgrade the Principal post of the school, in other words they admitted they were in the wrong, and the Applicant was prejudiced to the extent the unfairness should be rectified. They wrote a motivation saying the Principal post at Nathaniel Nyaluza High School was advertised on the bulletin volume 4 of 2020 as a Principal P4, to which Mr Kleyi applied for the post and was appointed as the Principal of the school.
14. The offer letter indicated the salary notch R 496 698 which was contrary with the advert that indicated Principal P4 which has a salary notch R569 625 but Mr Kleyi did not notice it when accepting the offer. The offer was implemented and Mr Kleyi assumed duties.
15. The District Director and also the Chief Director Cluster B recommended that the Head of Department approves the request to pay Mr Kleyi as post level 4 Principal at Nathaniel Nyaluza. The final say was with the Department Head, because he has the power to make the decision.
16. The Chief Director also recommended that the school grading must be from P3 to P4, which was the wrong request, but be that as it may, the Acting Chief Director HRMD responded the request is not in line with provisions of the PAM and therefore not supported, the DDG Corporate Services did not support because the Applicant had accepted the offer letter, and finally the acting Chief Financial Officer also did not support the request.
17. However, the request was never put before the actual person who must make the decision – the Head of Department. Adv Saayman testified that in any administrative function in the public sector, in terms of the Constitution, there is a right to fair, just administrative action. This means that any action taken by the State and its delegates must be a reasonable, must be in writing, and must be fair.
18. In this instance, Adv Saayman testified, it was not reasonable, and it was not fair. There was also a duty on the Head of Department to apply his mind because he is the only person that can upgrade or not, who can approve or not approve, but we can assume the Head of Department never saw this application because he never pinned this decision down. Therefore in terms of the Constitution, Mr Kleyi was denied the right to just administrative action, also a violation of his Constitutional right to fair labour practices.
19. Advocate Saayman reiterated that Mr Kleyi had followed the internal grievance procedures, and that in spite thereof he is now still worse off, as it impacts on his income, his status, and ultimately his pension. If he was appointed to a P4 school he would have retired on a higher pension. For years he will now earn a lower salary and not enjoy the status of a P4 school which is much higher than the status of a P3 school. This constitutes an unfair labour practice relating to promotion.
20. Mr Louw did not dispute any evidence from Advocate Saayman, and did not wish to cross-question the witness.
21. The Applicant, Mr Mzwandile Kleyi, Principal of Nathaniel Nyaluza High School testified under oath that after being a Deputy Principal, he wished for a promotion and applied for P4 posts. To this he was interviewed and nominated for 2 Principal posts – both advertised in Bulletin Volume 4 of 2020 as P4 graded posts – as seen in the Applicant’s evidence bundle. The Applicant subsequently elected to accept the post at Nathaniel Nyaluza High School in Grahamstown, rather than the post at Lungiso High School in Humansdorp, because he prefers to live in Grahamstown.
22. The Applicant’s Letter of Employment (signed 7 June 2021) stated his salary as R 496 698 per annum at the time of his appointment – however the letter did not specify it as either P3 or P4 – to which the Applicant also did not notice at the time that the salary specified is not that of the P4 level.
23. As aforementioned, the vacancy Bulletin stated the position as graded P4 level, and the Assumption of Duty form (24 May 2022) also stated the P4 level – both documents supporting his assumption that the salary would be consistent with P4 grade level status.
24. Three months later, when the Applicant received his first salary as Principal, he noticed the amount was lower than he expected of a P4 level salary. He investigated, discovered the mistake, and lodged a formal grievance dated 27 September 2022 to have his salary corrected to that of a P4 level in terms of the post having been advertised in the aforementioned vacancy Bulletin, supported by the Assumption of Duty.
25. In support of this, the District Director and Chief Cluster Director then launched a request memo addressed to the HOD recommending the Applicant’s salary level rectified to that of P4. However, this request was not supported by the Human Resources department, and the request memo seem to never have reached the attention of the HOD, who has the final decision on the matter.
26. The HOD did not yield a decision, and the Applicant’s salary level remained at P3 level in terms of Human Resources not approving the request to change his salary to the P4 level.
27. The Assumption of Duty dated the 24th of May 2021 was issued and completed by the Applicant’s EDO, Mrs Parabelle, his immediate superior, and the Education District official, District Director Mr Carlo.
28. The Applicant testified that he did you not go and check the amount of R 496 698.00 per annum on the contract because he was so excited at getting a position as a Principal that firstly he assumed the Department would not make an error with the salary, and secondly he was in any event not aware of the P4 salary amount as it is his first time as a Principal and he was unaware of all the dynamics of staff having to be more than 25 in order to be a P4.
29. The Applicant explained he applied for – and was recommended for – the two different Principal posts on the same Bulletin – in evidence. He received a phone call saying ‘Congratulations, you are recommended to be a Principal at Lungiso High School in Humansdorp’, which he knew from the Bulletin as also being graded a P4 school. Because Grahamstown was familiar to him he chose Nathaniel Nyaluza High School - also listed as a P4 school in the Bulletin – so it would not have made any difference in salary. He received the offer Nathaniel Nyaluza High School first, but a day or two later also that he was successful with Lungiso High School.
30. The Applicant expressed feeling that the Respondent had “deliberately enticed” him to apply to Nathaniel Nyaluza High School due to the fact that the Respondent stated P4 in the Bulletin advertisement. He testified that – had he had the correct information – he would have opted for the position in Humansdorp rather. But he took the bulletin as an official document, and assumed that no one would make such a grave and life-changing error on an official document.
31. The Respondent never approached Mr Kleyi to rectify the mistake – it was the Applicant who realized that there was an error, and only when he first got a salary – which is why he is wishing to be compensated for the unfairness he is suffering.
32. During cross questioning of the witness, the Applicant Mr Kleyi, the following was relevant.
33. Mr Louw put to the Applicant that he received the offer, which he have signed and agreed to it, that the correct salary was on that offer letter, and that the Respondent cannot now be held liable for an offer Mr Kleyi agreed to and signed without raising his disagreement with said salary amount.
34. The Applicant responded that all the letters from the Respondent that he had thus far signed since he was first employed by the Respondent in 2005 had no errors – thus he assumed that the Respondent would not make an error such as this one – especially after he had been serving this Respondent since 2005, and in any event the Assumption of Duty he signed when he started also clearly stated P4.
35. Mr Kleyi added that, if things had been ‘the other way around’ – if he had been overpaid, they would have had the Department’s lawyers deduct the money from his salary. In this case Mr Kleyi had applied for a P4 position, but the Department will not pay him according to P4. He explained that if the bulletin had said it was a P3 school he would not have applied as he was already a P3 Deputy Principal. For just a margin of say about R3000, he would not have applied, if it was P3.
Respondent’s Evidence
36. Mr Qaphela Luthuli testified under oath, as the only witness of the Respondent, that he was appointed in 2021 by the East Cape Department of Education as acting Chief Director responsible for Human Resource Management and Development.
37. In summary, why the Applicant was appointed as a P3 Principal and not a P4 Principal as advertised was because the post was erroneously advertised as P4. The post was supposed to be advertised as P3 because the school is graded P3. The Letter of Appointment in the Applicant’s bundle has the correct P3 salary, for which the Applicant signed acceptance.
38. Accordingly, he is convinced that the Respondent is within its rights to be of the view that the Applicant cannot be compensated because he agreed to the salary and nothing is due to Mr Kleyi in terms of solatium for the admitted mistake of the Bulletin advert and the Assumption of Duty form stating ‘P4’.
39. Mr Luthuli explained how the grading of schools and the post levels of Principals work. That in terms of the provisions of the PAM, each year schools are graded, and that the salary of the Principal is aligned to the grading of the school. In the case of Nathaniel Nyaluza High School, from 2019 to now the school has been graded as P3, meaning that the Principal must be compensated at grade P3.
40. He expressed his conviction that the error that was on the advertisement was rectified by the correct appointment letter – with the correct salary – having been given to the Applicant, and the Applicant has accepted that salary.
41. He further explained that the determinants for a school to be graded is the learner enrollment, leading logically the post establishment in terms of number of educators for the school.
42. Mr Luthuli explored in testimony the various recommendations for and against the memo request from the District in terms of the Applicant’s grievance, and how the request is not in line with the provisions of the PAM.
43. He specified the first issue to be that the Applicant accepted the offer letter, with its conditions as is; secondly, that the Applicant only brought his unhappiness to the attention of the Respondent 3 months later; thirdly, that he is of the view that Mr Kleyi should embrace the status of Principal and should rather endeavor to grow the school by increasing the learner numbers, leading to a higher number of educator posts, which would in turn result in the upgrade of the school to P4, leading to the salary of P4 Mr Kleyi wishes for.
44. During cross-questioning Mr Luthuli conceded that the Head of Department did not yield a decision on the Applicant’s formal request memo directed at the HOD, but retorted that, as the key role-players in advisory positions to the HOD have all given their inset on the request – ordinarily such a request would then not find its way to the Head of Department – which is common practice.
45. Mr Luthuli added that the offer letter the Applicant received states, “In spite of all precautions, reference checks and vetting, it is possible that errors may occur or further information may be brought to the attention of this office within a reasonable period of your appointment. Such error situations will be rectified and brought to your attention.” This paragraph, Mr Luthuli declares, essentially covers the Respondent and the Department with regards to this particular mistake on an advertisement which may occur.
46. Under cross-questioning Adv Saayman explored with the witness the salary differences between Principal P3 and Principal P4, to which Mr Luthuli conceded to the difference in salary suffered by the Applicant, but he again retorted that Mr Kleyi may grow the numbers of the learners in his school to work towards achieving P4 grade level.
47. Advocate Saayman put to Mr Luthuli that, as an organ of the State, in terms of the Constitution, at section 33, everyone has the right to just and fair administrative action, which Mr Luthuli agreed to, but he retorted that he opines it quite reasonable to accept an administrative error occurring in light of the fact that said error was duly rectified with the correct salary in black and white on the Applicant’s Appointment Letter, to which he also expects a reasonable Principle to accept the position of P3 and then he can grow his school’s numbers to achieve P4.
48. To this Advocate Saayman asked the witness what the appropriate procedures are to follow when an advertisement through the bulletin is found to have been incorrect – how the mistake must be rectified – to which Mr Luthuli explained the mechanism is to either go ahead if the error can be rectified with the Appointment Letter – which was the case here – or else the advert may be withdrawn, depending on the impact this would have on the institution. In this case, it was necessary to get a Principal appointed without delay, so the Appointment Letter cured the error.
49. In re-examination Mr Luthuli reiterated that if there is a submission or request that is wrong or inconsistent with what the law provided for it is incumbent on HR – not the District – to not approve such a request. Accordingly, the request for the Applicant that the District Director have made was not lawful in terms of the PAM, and not in line with the provisions of the law.

ANALYSIS OF EVIDENCE AND ARGUMENT
50. I have considered all the evidence and argument lead by the parties in coming to my decision on this matter.
51. The Respondent admits it made a mistake indicating ‘P4’ on the two documents – the Bulletin Volume 4 of 2020 and the Assumption of Duty document.
52. Such a mistake is most unfortunate as it creates instability in the Department as a whole and it is an unnecessary application of the Respondent’s resources to rectify, not to mention the damage it does to the motivation and commitment of employees of the Respondent who fall victim to this. I found it truly disconcerting that the witness for the Respondent did not appear to appreciate the gravity of the mistake and the effect the indifference and acceptance of such mistakes within the Respondent’s walls is causing to the morale of its employees.
53. The elusive Head of Department who I have been told is indefinitely exempt from having to testify at any arbitration – therefore not held accountable for not yielding a decisive outcome on the request memo launched in aid of the Applicant by the District – seems to be the scapegoat for the negligence of his/her subordinates. I find it entirely unacceptable that decisions are made without his/her sign-off – ultra vires.
54. However, the fact remains that the Applicant received and accepted the Letter of Employment as Principal with the accompanying salary amount as found on the first page of the Applicant’s bundle. The fact that he did, but did not notice the salary amount is most unfortunate.
55. A further fact remains – that the school Nathaniel Nyaluza High School is legitimately a P3 school – this cannot be changed, and from the evidence it has been that way for some time. The Applicant party also agrees to this being a stagnant factual aspect of this matter, and agreed that it is right that his salary should be in line with the school’s grading. However, understandably he also feels mislead.
56. I have no doubt as to the sincerity of the Applicant – that his delight at being appointed Principal got the better of him – that he simply accepted the Letter of Employment without checking the details – that he as he stated, he ‘trusted the Department’ to have the correct information on there – but the fact remains that he should have paid attention to the details.
57. The Applicant party’s allegation that the Respondent mislead the Applicant – and any other job-applicants for the position, for that matter – by advertising the position as P4 instead of P3 I find to be improbable, in light of the fact that this would not go unnoticed for very long – it is a considerable difference in salaries after all – and would lead to a dispute. Primarily I believe it was negligence rather than purposeful misleading in that the Applicant was given the letter with his correct P3 salary per annum as R 496 698 at the start of his employ. There the Applicant had an enormous red flag as to the mistake, and it was addressed to him directly, and he acknowledged receiving and accepting it right at the start of his employ.
58. Although I have great empathy for the Applicant having been the victim of very unfortunate unprofessional negligence, the fact remains that he would have had a much better stance if he had raised this right away, at the time he received the contentious Letter of Employment – before accepting it.
59. I am in full agreement with the Applicant that the salary amount is of utmost importance – not just the status of Principal – and regrettably the Respondent’s witness does not appreciate this, from where I was sitting, I got the impression the financial prejudice the mistake the Respondent imposed on the Applicant was downplayed.
60. In terms of the procedural unfairness brought about by the mistake of the Respondent the Applicant is asking me to award him in compensatory solatium 12 months, but because the fact remains that the school was and still remains a P3 level school, and because the Applicant should have performed his due diligence in checking the Employment Confirmation’s salary-amount, I feel his hands are not clean either in this matter, and accordingly I can only award the Applicant 3 months’ salaries solatium compensation for the unfair procedure – because if not for the Respondent’s mistake he would have accepted the Humansdorp P4 position or another P4 position.
61. Had the Respondent appointed the Applicant as a P4 Principal to a P3 school, it would have amounted to financial mismanagement in that it would have amounted to fruitless wasteful expenditure in terms of section 1 of the Public Finance and Management Act.

AWARD
62. I find that the Respondent, the Eastern Cape Department of Education perpetrated an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA.
63. The Respondent, the Eastern Cape Department of Education, must pay the Applicant, Mr Mzwandile Kleyi compensation in solatium for the unfair labour practice – 3 months’ salaries at his current salary rate of R 43,272.50 per month, amounting to R 129,817.50 by no later than 31 January 2023.


Commissioner Sally-Jean Pabst
ELRC Arbitrator