ELRC312-22/23EC

Panelist: Sally-Jean Pabst
Case No.: ELRC312-22/23EC
Date of Award: 26 March 2023

In the ARBITRATION between:

SADTU obo SIFO, Mr Mxolisi and 13 others
(Union / Applicant)

and

Department of Higher Education and Training ( Ingwe TVET College)
(Respondent)


Applicants: Email:
Persal number: N/A

Applicant’s representative: Mr Luwezile Fihlani - SADTU
Email:

Respondent’s representative: Mr Tozamile Mabovula – DHET ( Ingwe TVET College)
Email:

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was referred for arbitration to the ELRC in terms of Clause 69.6 of the ELRC Dispute Resolution Procedures for failure by the Respondent to pay the Applicants for extra classes conducted.
2. The arbitration was conducted virtually (via Zoom conference) on 16 January 2023, on 10 February 2023, and concluded on 8 March 2023. The arbitration process was video-recorded with the consent of the parties, and the parties did not require the assistance of an ELRC-appointed interpreter.
3. The Applicants, Mr Mxolisi Sifo and 13 others , were present and represented by Mr Luwezile Fihlani, an official from the South African Democratic Teachers Union (SADTU).
4. The Respondent, the Department of Higher Education and Training, Ingwe TVET College, was represented by Mr Tozamile Mabovula.
5. The parties each submitted a bundle into evidence. All was agreed between the parties as being what it purports to be.
6. The parties submitted written closing arguments 7 days after the conclusion of the arbitration.

ISSUE TO BE DECIDED

7. I have to determine whether the Applicants are entitled to be paid by the Respondent for the five days’ extra classes conducted from 5 to 9 April 2021.

BACKGROUND

8. The Applicants are all lecturers employed by the Respondent to provide Business Studies tuition to students of Ingwe TVET College.
9. One of the Applicants, Ms Njenge-Maqamela, compiled a formal application for the Applicants to conduct extra classes for the students to attend during the 2021 Easter Holidays, from 5 to 9 April 2021.
10. The Applicants did not receive signed approval in answer to their formal application back from the Respondent.
11. The Applicants proceeded to conduct the 5 days of extra classes for their students from 5 to 9 April 2021.
12. The Respondent refused to pay the Applicants for the classes conducted from 5 to 9 April 2021.

 
SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT’S EVIDENCE
13. The Applicant party brought 3 witnesses – firstly Mr Fihlani, their SADTU representative, secondly Mr Sifo, the primary Applicant, and thirdly testified Ms Njenge-Maqamela, the compiler of the formal application to conduct extra classes.
14. The witnesses of the Applicants testified that the request to conduct extra lectures during the 2021 Easter Holiday from 5 – 9 April 2021 was sent via the correct channels to the Deputy Principal Mr Giwa’s office.
15. Ms Njenge-Maqamela made a phone call to Mr Giwa to follow up on the application, to which she was advised that the application was not yet approved, and then its contents and required amendments to the application was discussed and advised on.
16. Ms Njenge-Maqamela shortened the list of lecturers to conduct extra classes in terms of Mr Giwa’s advice, and sent this to Mr Giwa, but never received any reply with either a refusal or an approval of the application.
17. Expecting an approval to come in due course in terms of common practice, the Applicants embarked on the extra classes over the period 5 to 9 April 2021. This common practice was testified to by all the Applicants’ witnesses, who explained that permission is normally asked but approval for appointment or commencement of work is usually received only long afterwards.
18. During the 2021 Easter Holiday classes the Campus Manager briefly visited campus and saw the Business Studies lecturers conducting the extra classes, and he did not query or object to this. Nor did he tell them to desist, which in their view was implied approval of what they were doing – conducting the extra classes they had duly requested permission for.
19. Thereafter, when the Applicants were not paid for these extra classes, to which they lodged a grievance which outcome did not lead to them being paid for the extra classes, leading up to this dispute lodged.

RESPONDENT’S EVIDENCE
20. The Respondent called 2 witnesses – firstly Mr Patrick S Mgushelo, the Campus Manager, and secondly Mr Giwu, the Deputy Principal.
21. The Respondent’s witnesses testified that permission was asked but not given. It is common on campus that lecturers from time to time conduct unpaid voluntary extra work on weekends/holidays/evenings as they have access to the campus to do so, and this is known to be unpaid voluntary work. On the other hand, if lecturers embark on work that they require to be paid for, embarking on this work must be preceded by a formal application process and written approval obtained from senior management. The Campus Manager Mr Mgushelo testified that he does not have the authority to give approval, and him being on campus at the time the work was executed, or him provisionally having endorsed the extra classes, did not imply or afford approval from management higher up than him on the organogram.
22. Mr Giwa testified that, after his office received the formal application for conducting paid extra classes from Ms Njenge-Maqamela, he received two phone calls regarding said – from both Ms Njenge-Maqamela, and from Mr Sifo – shortly after the application was received by his office. Mr Giwa discussed on the telephone at length everything that was wrong with the application. He went through the problems and advised how they may rectify these in order to have a better chance for approval, and warned them not to proceed with extra work and expect remuneration if this had not first been approved, because approval is of paramount importance in terms of audit findings that would become a great problem if unapproved expenditure is embarked upon. After this, Mr Giwa testified, he received nothing further from the Applicants.

ANALYSIS OF EVIDENCE AND ARGUMENT

23. It is common cause between the parties that the Applicants submitted a formal application to Mr Giwu’s office for approval to being remunerated to proceed with extra classes during the holiday. Also that they did not receive any response in either approval or denial thereof.

24. Ms Njenge-Maqamela was further in the interim advised by Mr Giwu of some changes that should have been made to the application. This is evident from the shorter list of lecturers in evidence. Although it remains in dispute in terms of the two parties’ conflicting versions whether this changes / shortened list ever reached Mr Giwu (Ms Njenge-Maqamela failed to provide proof in the form of an email cover or Sent Item showing she submitted the shortened list to Mr Giwu), it nevertheless remains common cause that the Applicants’ application – not the original version, nor a revised version – was ever approved.
25. The only version of the application document, as seen in evidence, has no outcome and no signatures on its last pages. No permission to embark on the extra classes were obtained.
26. The Respondent submitted into evidence its ‘Policy on part-time and practical classes’, and the Respondent’s witnesses all agreed that the policy is well known to Ms Njenge-Maqamela in terms of her 20+ years’ service with the Respondent, and her having made many applications like this before. In my view, if the compiler of any such formal application did not know the rules or policy – as Ms Njenge-Maqamela here claims she did not – the onus nevertheless remained squarely on her to have sought out and educate herself on the requirements and rules for making such an application to ensure she ticks all the boxes for approval. In fact, she did contact Mr Giwu for guidance because she understood the importance of receiving his approval signature on the application she had made.
27. I find it highly improbable that she did not have knowledge of the policy in light of Ms Njenge-Maqamela having motivated the application on a cover that includes the AIM, BACKGROUND, DISCUSSIONS, with thereafter what seems to be an official prescribed document with fields completed under headings: BUDGET AVAILABILITY, FINANCIAL IMPLICATIONS, RECOMMENDATIONS, COMPILED BY, ENDORSEMENT, CONFIRMATION OF BUDGET, and lastly SUPPORTED/NOT SUPPORTED section on the form where senior management was supposed to sign off their approval at its conclusion.
28. The evidenced policy guides me – and so does the empty spaces in the last 2 pages of the application form – that if remuneration for extra classes is expected, then formal permission for these extra classes must first be obtained. It is the only logical reason for the elaborate motivational cover letter, application and additional efforts Ms Njenge-Maqamela embarked upon.
29. From the evidence lead, Ms Njenge-Maqamela knew and understood the importance of obtaining Mr Giwu’s permission from the fact that she especially contacted Mr Giwu to follow up on not having received the approval she had sought, this after she had completed a fully incorporating motivational cover letter, followed by clearly an official template form completed, with various supportive documents, whereafter she sought Mr Giwu’s advice to further pursue getting it approved, I find it highly improbable that she did not know the policy’s contents or the importance of prior approval.
30. If it was common practice for an application not needing to be signed off in approval prior to resting assured that payment for the work will be received, why then did Ms Njenge-Maqamela contact Mr Giwu and obtain additional advice and apparently make some changes? It does not logically follow that she expected payment for the work without prior approval. It is simply not rational or probable.
31. In spite of ardently pursuing permission, but it never being granted, and in spite of the policy warning very clearly that payment without permission must not be expected, nevertheless the Applicants feel themselves entitled to be remunerated in terms of, additionally, their witnesses’ testimony in support of the necessity of these extra classes. To this point, far be it from me as a commissioner to sign approval for expenditure which clearly was not approved by the team of officials authorised to provide such permission.
32. Whether or not it was fair that permission was refused is irrelevant. The dispute before me is not one of ‘unfair refusal to grant permission’. It is one of unfair refusal to pay for work done. But the relevant pivotal factor is whether this work, as extra work, had or alternatively was lacking, the required prior approval to authorise payment.
33. If I were to award the requested remuneration based on the Applicants’ motivation of the necessity of these extra classes, I would be acting ultra vires. My scope of practice is limited by the ambit of the labour legislator statutes. In this matter I must establish whether the Respondent is unfairly and unlawfully refusing to pay the lecturers remuneration which they are entitled to – not to assess whether the extra classes were necessary.
34. The entitlement to remuneration here is in my view not dependant on the relative importance of the extra classes, but rather on whether they were beforehand properly and duly authorised by the Respondent to expect extra payment for the work they wished to embark upon. Clearly, the Applicants were not. The reason why they decided to proceed to conduct the extra classes during their holidays without prior payment-authorisation remains a mystery.

AWARD
35. The Applicants, Mr Mxolisi Sifo and 13 others, are not entitled to remuneration for the extra classes they conducted from 5 April 2021 to 9 April 2021.
36. The Applicants’ claim is dismissed.

Commissioner Sally-Jean Pabst
ELRC Arbitrator