ELRC287-22/23EC

Case Number: ELRC287-22/23EC
Commissioner: Sally-Jean Pabst
Date of Award 27 July 2023

In the matter between

Mr L Mlamla & 86 others
(the Applicant)

and

Eastern Cape Department Of Education
(the Respondent)


DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of n terms of Section 191(5)(a) of the Labour Relations Act, No 66 of 1995 (the LRA). The matter was heard on on 27 June 2023 and 28 June 2023 at the Respondent’s premises situated in Sterling, East London. The arbitration was digitally recorded.
2. Mr NZ Mtshabe, attorney of the 86 Applicants, represented the Applicants, and for the Applicants one or more representative from each of the 8 schools were also in attendance. The Respondent, the Eastern Cape Department of Education, was represented by its attorney, Mr Mhlanti.
3. The parties after the conclusion of the proceedings presented written closing arguments via email on 13 July 2023 and on 17 July 2023 respectively.

BACKGROUND TO THE ISSUE
4. The dispute is in terms of an alleged unfair labour practice by the Respondent relating to benefits – the Respondent allegedly owing the Applicants the benefit of a monthly rural allowances for 3 (three) years / 36 months.
5. The relief sought by the Applicants is the payment of a monthly rural allowances for the period of 36 months, computed as follows per each individual educator:
Rural Allowance of R 2,326.65 X 36 months = R83,759.40 to each Applicant.
6. The parties agreed in a pre-arbitration minute concluded to the following common cause facts:
6.1. The Applicants are employed by the Respondent.
6.2. The Applicants received from the Respondent a document dated 10 December 2018 stating their school was selected to benefit from the Incentive Scheme for 2019/2020 in terms of its qualification for Rural Allowance, with effect from 1 April 2019, later changed to 1 May 2019.
6.3. The Applicants were forwarded document that suspends such implementation, dated 25 April 2019.
6.4. The Applicants’ school’s names do not appear on the ‘recommended’ list of the Respondent dated 14 March 2019.
7. Further to this, the parties agreed in the pre-arbitration minute to the following issues in dispute:
7.1. The Respondent disputes the Applicants’ entitlement to Rural Allowance – this in line with draft memo dated 14 March 2019.
7.2. The Applicants dispute that they are not entitlement to Rural Allowance – this in line with letters dated 10 December 2018 and 04 March 2019.
7.3. The Applicants contend they are unfairly discriminated against by their exclusion from the benefit and the Respondent practiced an unfair labour system, thereby prejudicing them despite their dire need for the incentive, and their qualification in terms of these being, remoteness of their schools from nearest town with basic amenities of life in terms of the Constitution, making teaching and learning conducive, poverty as their schools are ranked and divided into quintiles, (quintile 1 being the 20% poorest schools); their schools are No- Fee schools, to which the respondent has indicated that all No-Fee schools shall be prioritized.
7.4. The Applicants contend they were until 2023 unaware of the document memo dated 14 March 2019 listing the recommended schools for Rural Allowance with the exclusion of their schools, whereas if they would have been informed timeously at that stage in 2019 they would have taken such on review to be set aside on the basis of unfair labour practice.
8. Late referral of the dispute, as well as prescription of the Applicants’ claim, had been dealt with in a ruling dated 16 April 2023, as these had been raised as points in limine.


ISSUE TO BE DECIDED
9. I have to determine whether, in terms of a letter of intent penned by the Respondent’s HOD, and in terms of Government Gazette No. 30678 of 18 January 2008 (the Gazette), the Applicants were entitled to rural allowances for 36 months from April 2019.
10. If the above is confirmed, I must then determine whether non-payment of these rural allowances by the Respondent amounted to an unfair labour practice in terms of provision of benefits as contemplated in section 186(2)(a) of the LRA.

SUBMISSIONS AND ARGUMENT
11. 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. In terms of s138(7)(a) of the LRA, below I only include evidence I found relevant in making a decision on the matter in dispute, and refrained from repeated all submissions by the parties.
12. The parties relied on one bundle consisting of 55 pages, to which 8 pages were added during the course of the proceedings.
The Applicants’ evidence
13. The Applicant party called upon eight witnesses to further its oral evidence – one witness from each of the eight schools represented by the Applicant party. They testified under oath to the following:
13.1. Ms Lindiwe Nkamisa, Principal of Cwele Primary School
The witness testified she has been with Cwele Primary School since 1989. Another school already received rural allowance before they (Cwele Primary School) did. The Gazette gave them rural allowance, addressed specifically to their school, then a withdrawal in a ‘general’ letter, but not to them directly - page 13 is that ‘general’ letter.
They understood the first letter, it was directed to them. They did not understand the second letter because it did not seem to include them. They are deprived.
Cross examination
Ms Nkamisa received this letter at month-end. The rural allowance was supposed to come with pay-day, on 20th, but it did not. The letter on page 13 was confusing.
She was asked whether she felt it applicable to their school. She did not understand the selection criteria, but their school was nevertheless included. Thereafter it was withdrawn before even implemented, without their school being mentioned in the letter.
She was asked whether the letter was directed to her as Principal, and she confirmed that it was, but added it did not help her understand why her school did not receive the rural allowance.

13.2. Mr B Ncamazana, Departmental Head of Ntsundwana J.S.S.
The witness confirmed he has been with Ntsundwana J.S.S. since 1990, and he understands rural allowance as being for remote and no-fee schools. The school is 74km from Umthatha – gravel road mostly. In 2019 they (their school) was supposed to get rural allowances, it was promised to them on page 7 – bullet 3 is the promise. But they did not get it.
He was referred to page 13, the letter “suspends” it, the witness was asked whether the school received it. He replied he does not recall receiving this, nor did his principal show it to him.
With reference to Page 12, the witness was asked whether his school received it. He replied that they did not, as he does not recall receiving this.
With reference to Page 33, the witness was asked whether the document entitled the school, in terms of paragraph 8.1 to receive the allowance. The witness replied that it does, they qualify.
The witness was asked whether Ntsundwana J.S.S. changed from this entitlement in terms of 8.1 of the Gazette. He confirmed that they have not – they are still qualifying and are entitled.
The witness was referred to page 54, pointing out their school. He stated that other schools receive rural allowances, with the same qualification-specifics, but they did not.
He would like them (the Respondent) to stick to their promise of April 2019, to let his school have its rural allowances.
Cross examination
The witness was asked how the Department (the Respondent) communicates with their school. He answered that the Principal Mr Jezana conveys every documentary communication from the Department to them all. The witness was referred to page 13 and he replied he is not aware of the document, in that Mr Jezana the Principal never showed him this document.
Re-examination
The witness was asked whether Mr Jezana conveyed all issues affecting them, to them, and he answered in the affirmative.
13.3. Mr Asam Godlo from Sandi J.S.S.
The witness testified they are 72km from the hub. They are a no-fee school. They are more than 35km wherefore they are fully entitled to the rural allowance and Page 10 entitles their school to a rural allowance.
The witness stated they never received the document on page 12, nor does he remember the document on page 13. He added that, if it affected him as educator, his Principal would have showed it to him.
The witness was referred to page 55, and asked whether this further entitles the school to the rural allowance, to which he confirmed that it does.
The witness stated he does not know why the Department did not give them the rural allowance as per page 10 and it must be honoured.
The witness was asked a response to the Department having said they cannot honour page 10 because they cancelled it with page 13. He replied he takes issue with this, as his school’s conditions have not changed in terms of being rural and remote and a no-fee school, and it is unfair to deprive them.
Cross examination
The witness testified the Government Gazette of 2008 was unbeknown to him prior to preparation for this arbitration. They became aware of the entitlement by the letter and by other schools’ educators speaking to them about who receives rural allowances, and who does not.
The witness confirmed he never saw any letter suspending the entitlement. They were also on a very long WhatsApp list of entitled schools.
They received page 13 sometime last year, 2022, at Mr Dalasile’s office, and then they spoke to Mr Dalasile about rural incentive issues. Mr Dalasile gave them the letter then, to which they raised issue to Mr Dalasile and left it with him to escalate.
Re-examination
The witness confirmed the school’s Principal always conveys all Departmental communications to them. Accordingly, the document on page 10 affects all of them, as educators.
The witness was referred to page 13 and asked whether it also affects all educators. He replied he is not sure that this does affect them, specifically.
13.4. Mr Simphiwe Mcumbe from Mjongile S.P.S.
The witness testified he started at Mjongile S.P.S. in 2019 as educator. They (the school) still have the same Principal as when he had started at the school. The Principal always communicates all Departmental documents to them.
He was referred to page 6, and he confirmed it is indeed their school, and they received it from their Principal, they are entitled by bullet 3 of page 6.
Regarding page 13, the witness was told that the Department says it withdrew the rural allowance. The witness replied he is not sure about this document. He knows nothing about this document.
They are a poverty-ridden school, a no-fee school, and a distant school, meaning they are supposed to get rural allowance. The school gets all of its subsistence from the Department – it is a very poor school. They travel far, learners walk far, and safety is a great concern.
The witness was asked whether he was told why the Department is not giving them the benefit of rural allowance, to which he answered that he does not know the answer to that question.
Cross examination

The witness testified that he had tried to ask the Principal around the beginning of 2019 why they had not received the rural allowances. She had replied that they must wait until further notice, but he is still waiting. He did not ask again because he has hope, he knows the Principal will come and inform them.

13.5. Ms Nolundi Bango from Qanda J.S.S.
The witness testified she has been an educator at Qanda J.S.S. since 2012. The rural allowance is a benefit for schools that are far away, very much rural. In 2019 they received a letter promising them the rural incentive. They were supposed to receive it since April 2019 for quintile 1 schools, no-fee schools, which is the case for them at Qanda J S.S. She was referred to page 12, and confirmed the document was received by their school only in August 2019. They were also not consulted, nor were they known in the decision, of which schools will receive it and which schools will not. In reference to page 13, it was put to the witness that the letter stops the incentives, and she was asked whether she knows any schools that continued to still receive rural allowances after April 2019. She replied in the affirmative.
To this, on pages 24 to 27 the witness pointed out four schools, which she confirmed continued to receive rural incentives, irrespective of page 13 having stopped payment going forward.
She added that Qanda, and all 4 of these schools she had pointed out, all are in the same category regarding qualification, but there is discrimination, which is unfair. She pleaded to receive the incentive.
She added that rural allowances may have been stopped last year by the Minister, but they are still suffering. They were promised these allowances. They are having to leave at 6h30 from town, not from their homes, even, to go to the school. It costs R1,800.00 per month from the pickup point in town to the school, which is what they have to pay for the transport contracts from Mthatha. Also, it is not safe to travel and work there.
Cross examination
The witness confirmed she has been an educator since 1994, at Qanda since 2012. She is a SADTU union member and she is aware that SADTU had been involved in the rural incentive negotiations, but she was not involved nor informed. The same school Principal is still the Principal, from 2019 to now.
She knows the letter on page 12, it is signed on the stamp by her school Principal. This letter changed the implementation date from 1 April 2019 to 1 May 2019. The Principal gave this letter to her and to the other educators.
With reference to page 13, she does not remember this letter. It may or may not have been received.
It was put to her that the Department says it sent this letter to her school, to which she replied she does not remember it. The witness confirmed that, after the letter suspending the rural allowance, other schools continued to receive the rural allowances.
She saw that in April 2019 she did not get the rural allowance, but she does not recall exactly when she checked her bank account that month.
Re-examination
The witness was asked whether her union SADTU had reported back to her with details of what happened in their negotiations. She answered in the negative, adding that they share staff transport with the other schools she had pointed out, which is how she had established that different schools are treated differently with regards to receiving the benefit.
13.6. Ms Veliswa Mlunguza from Tungweni J.S.S.
The witness confirmed she had been with the school Tungweni J.S.S. since 1993, and had been a Departmental Head since 2010. Mr Boko, who retired in 2022, was the Principal, and she is currently the acting Principal. She explained the rural allowance is a benefit for no-fee schools that is quintile 1, and far from the nearest town. They are very far from Mthatha. They were promised rural allowances from 2008, but did not receive it.
With reference to page 4, she confirmed the distance from Mthatha to the school is 62km’s. The incentive would make a very big difference, as she pays more than R1,000.00 for transport every month.
Regarding page 9, they received this letter as a promise, but they did not receive the benefit.
With reference to page 13, she never received this letter. If the Principal had received it, he would have shared it with them.
It was put to her that the Department says it did not give them the benefit because it was suspended, and she was asked whether she knows of any schools that received the benefit after the date of this letter. She replied in the affirmative, elaborating that Sizwe and Emvilo are both schools that definitely did receive the benefit thereafter, as late as August 2019. She knows this because the schools are very near to her school, they travel past her school to get to their schools.
She added that these schools have similar qualification-specifications as her school, with regards to being quintile 1 and being far away making it a rural school.
With refe3rrence to page 16, other schools benefit but they do not, which is unfair. She wishes that the Department will be fair to them and incentivise their transport.
Cross examination
The witness confirmed she had said that the schools Sizwe and Emvilo continued, even after the suspension-letter, to receive the allowances. It was put to her that the letter on page 13 suspends the rural allowances, and she was asked whether she understands it includes her school. She answered in the affirmative.
She was asked whether her impression is that these schools, Sizwe and Emvilo, also should have been placed in the same category as her school, to not receive the rural allowances anymore. She confirmed that’s her impression.
The Department’s version was put to her, that the schools she had mentioned were excluded from the suspension of the rural allowances, as seen in the letter on page 15. She replied that she does see that.
Re-examination
The witness was referred to page 16, the list of schools excluded from page 13’s letter. She confirmed the schools Sizwe and Emvilo is on the list for reconsideration, on page 18 and 21.
13.7. Ms NC Makhala from Mpikeleli J.S.S.
The witness confirmed that their school is a quintile 1, no-fee school, poverty prevails there, and it is far away from Mthatha. The distance is 60km’s from Mthatha.
In reference to page 8, she confirmed they received this letter that they qualify for a rural allowance from 1 April 2019, but they never received the allowance. They asked the Principal why they did not receive the rural allowance, but she had replied that there is a letter to that end.
She was referred to page 13, and told the Department had said this letter suspends the rural allowance, and this had been sent to all Principals. She replied that she does not understand why the Department had said that, because other schools that received the rural incentive is the same distance from Mthatha as they are, yet they did not receive rural allowances as other schools had.
She stated there is unfairness, it is discrimination because they work under the same difficult conditions and with the same challenges as the schools who received the incentive. They wish that the Department would pay them that money they were promised.

13.8. Mr Nkosana Mxwila from Nomcamba J.S.S.
The witness confirmed he has been an educator at Nomcamba since July 2018. He is a Post Level 1 Mathematics educator at the school.
The closest town is Mthatha, 63km from their school and he pays R1,500 per month for transport to work.
Theirs is a no-fee school, quintile 1, in a rural and poor community. Their school qualifies for the rural allowance, and page 11 awards them the rural allowance. They received this document from the Principal, but received no incentive thereafter.
Upon being referred to page 13, and told the Department suspended the implementation of the rural allowance, the witness’ response was that they never received this letter on page 13 and 14. Their Principal definitely would have given this to them, if it had been received.
He testified that he lodged a grievance about non-payment to the Respondent, but received no reply.
The witness confirmed pages 15 and 16 has listed schools that still continued benefiting, but there was clear discrimination. It is unfair for schools such as Emvilo, Sizwe and Maqebevu to receive the rural incentive after this letter on page 13, and still at the end of 2019 they continued to receive it. They Emvilo, Sizwe and Maqebevu went to a lawyer who got them their incentives, that is what they had told him. He wishes the Department would pay them what it owes them for the 3 years.
Cross examination
The witness was asked whether he confirms the other schools he mentioned continued to receive the rural allowance later in the year 2019, and he answered in the affirmative. He explained they share transport to school, and that the educators from those schools had told him they went to a lawyer who got them their incentives paid.
With reference to page 13, the letter suspending the rural allowance dated 25 April 2019, it was put to the witness that this affected his school, and that it is the version of the Department that the schools the witness mentioned were not included with this page 13 letter, because they were counted under the group of the other letter on page 15, dated 14 March 2019, which was for the schools who was already getting the allowance.
The witness replied that he does not agree that that is right or fair, because those schools apparently went to a lawyer after they had found themselves in the same situation, to which the lawyer changed their situation and they got their rural allowances.
It was put to him that the Respondent disagrees with what he is saying, because those schools were in another group. He responded that that may be so, but it still is not right that they had their money stopped, to which they went to a lawyer and got it fixed, which is a contradiction because going to a lawyer was the factor that changed their situation.

14. The Applicant party’s witnesses testified in unison about the letter received by the school Principal and duly conveyed to the faculty that the school qualifies for rural allowances from the specific date. Thereafter, another letter conveying that same allowances is suspended, which some received and some did not. They feel they were unfairly treated, and discriminated against.
15. A lot of emphasis was placed on the comparators, other schools with similar qualification to rural allowance received, and/or continued to receive this benefit, whereas the schools of the Applicants were not, and that this amounted to unfair discrimination against the Applicants by the Respondent.
The Respondent’s evidence
16. The Respondent furthered its oral evidence in the form of one witness testifying under oath.
17. Ms Pozisa Nettie Gqaleni has been the Deputy Director of Human Resources Administration and Provision (A&P) for 7 years, since December 2016 and she contributed evidence to the following.
She explained the Applicants had been given letters that they qualify for rural allowance, but then they did not receive this rural allowance 2019 – 2021. She knows about the rural allowance. In 2019 there was a new allocation for rural allowances. There were schools who were already receiving it. The Department informed the schools of their entitlement.
It was discovered there were gaps in the process, and therefore the whole lot who had been advised that they will benefit, had to have their letters withdrawn/nullified. This nullifying letter was sent to the schools in 2019. They were supposed to receive it from 1 April 2019, this was changed to 1 May 2019, then the nullifying of the allocation of the new additions.
Payment was suspended because there were gaps in the resolution, such as budget, but some that were already getting rural allowances, and therefore had to continue to receive it. Only the new allocations were eventually withdrawn, in the end. Schools such as Sizwe, and Emvilo was on the list, in terms of the Applicant party.
Cross examination
The witness was put to proof of her saying that a lack of funds for rural allowances in 2019/2020/2021 was to blame for the Applicants not receiving the rural allowances. She responded that it was based on a budget.
It was put to her that it is public knowledge that ECDOE have returned R205 million, this in terms of News24. She responded that she did not know she had to bring the document in which the Finance Department deals with allocations and it stating it had been done so in terms of their quota.
It was put to the witness that she was testifying to hearsay evidence about the finances and the quota this in terms of her saying she is not in finance (department). The witness referred to page 24 to 28, the PPN, speaking to the quota, and she added that the District Task Team does the allocation.
She disagreed that pages 16 to 21 is all-inclusive of the list in page 24 to 28.
It was pointed out to the witness that at least one school is on the one list and not the other. She conceded to this, but retorted that the PPN-quota is limited.
The witness was asked to confirm whether the budget and the PPN-quota are the two factors which lead to the withdrawal of the new allocations. Her response was that page 14 shows the reason, people who already had been receiving had to continue to receive.
It was put to her that others who did not receive before, did start to receive, but the Applicants in this matter did not start to benefit. She was asked why this was so. The witness responded that unfortunately not everyone could be accommodated.
The witness was asked why some schools which are closer benefitted (see page 4), but not the Applicants’ schools who are further away. To this she was referred to page 16, she responded that the PPN, the number of posts allocated to each respective school, also informs the allocation.
It was put to the witness that it is unfair that some schools received the benefit and some not, and that the schools of the Applicants qualified fully but they did not receive the benefit. The witness wished not to comment on that.


ANALYSIS OF ARGUMENT
18. The 1 April 2019 / 1 May 2019 incentive was introduced by the National Department of Education through Government Gazette Notice No.30678, promulgated on 18 January 2008. This admittedly affords the Applicants the right to the Rural Allowance, but only if the listed qualification criteria has been satisfied.
19. I established the Applicants’ claim to entitlement to this benefit being two-fold:
19.1 That they are entitled in terms of their school qualifying in terms of 8.1 of the Government Gazette No. 30678 of 18 January 2008 (not in dispute), and
19.2 That they are entitled in terms of the respective school Principals having conveyed to them a letter saying their school will start to receive the rural allowance from the specific date onwards (also not in dispute), and another letter which was received (by some and not others) withdrawing it.
20. Dealing with 19.1 above, it is noted that all of the Applicants’ schools qualifies in terms of paragraph 8.1 of aforementioned Gazette, but no evidence was lead by the Applicants’ witnesses regarding the individual Applicants’ entitlements in terms of the very same Gazette, as it has qualification criteria at points 1 through to 7 of the same Gazette.
21. Dealing with 19.2 above, the crux of the evidence lead under oath by the Applicant party’s witnesses was that the Applicants had all got their hopes up that the letter their Principal received was a promise of intent to pay to them each a monthly incentive in terms of the school’s location and status as set out in paragraph 8 of the Gazette, but regrettably this was snatched away from them again a few months later.
22. However, from the evidence lead before me, there was no further progression after this letter in terms of Respondent contacting the individual educators with the contractual agreement to be entered into confirming the qualification of each individual Applicant to the incentive. Based purely just on the school’s (common cause) qualification, only half the battle was won, in my view, to fully establish the entitlement. Furthermore, at no time before was the incentive ever paid to our Applicants, to suggest that, maybe even just in practice, customarily no such contractual agreement had been necessary before initiation of payment of this incentive. This is however just my speculative mind, as I am bound by the evidence before me and I cannot say that irrespective of the Gazette specifying this as a prescribed criteria at its point 3, it is not as important as their school’s qualification in terms of point 8 of the Gazette.
23. The Applicants’ testimony under oath relied primarily on their contention of unjustifiable discrimination in that the Respondent had been paying, and continued to pay, the rural incentive allowance to some schools and not others, specifically not to all of the schools. As the dispute before me is not one of discrimination in terms of the Employment Equity Act, and I am in all fairness burdened also in terms of LRA section 138 to determine upon having heard and considered all the evidence that the true nature of the dispute is one of discrimination, I am not at liberty to assess whether there was unfair discrimination, seeing as an unfair labour practice by the Respondent is the matter put before me. A matter cannot be discrimination and be an unfair labour practice, because unfair labour practice must be in terms of an existing right the employee has, which is unfairly withheld from the employee. For this, first the existing right to be established, only if so, thereafter whether the withholding of that right was unfair (labour practice).
24. Even if I deem it highly probable that all of the Applicants individually indeed qualified, the evidence to this was not placed before me. The onus of proof on the Applicant party burdens them to set out before me the full spectrum of qualification , not only in terms of the letter of intent sent to the school as a whole thus satisfying point 8 of the Gazette, but also discharging the party’s onus to satisfy point 1 through to 7 of the Gazette. There was individual qualification and an agreement in terms of point 3 of the Gazette with each individual member of the faculty that the Respondent entered into as to the person’s qualification and payment of the rural allowance.
25. Exactly the same as with the letters in which the Respondent again withdrew its intent to pay the Applicants’ Rural Allowances, the initiation letters dated 10 December 2018 similarly was directed at the school (Principal), and in my view was a preamble to a process which thereafter never happened. The individual contracting of the educators / Applicants to satisfy each’s qualification. Unfortunately this was halted by another letter similarly penned to the school as a whole, without any further qualification steps initiated as required in point 1 through 7 of the Gazette, and specifically the ‘incentive contract’ agreement as per point 3 of the Gazette was not concluded to create the expectation that the individual persons qualify and the money would follow.
26. In the absence of the Gazette-mandated contractual meeting of the minds on paper with regards to the rural allowances to each Applicant, including qualification terms and conditions therein, and such terms agreed to between the Respondent and each Applicant, I cannot fairly conclude that the individual Applicants to this matter was, each individually and respectively, entitled to said Rural Allowances.
27. The Applicants, in light of the evidence in totality and holistically viewed have in the absence of a conclusive entitlement, the non-payment of the rural allowance may not be construed as an unfair labour practice by the Respondent.
28. The parties both in Closing Argument sought legal costs against the other, however considering the ongoing employment relationship between the respective Applicants and the Respondent, I conclude awarding costs under these circumstances as wholly to be inappropriate.
29. I therefore make the following award.


AWARD
30. The Applicants Mr L Mlamla & 86 Others have failed to discharge the onus of proving on a balance of probabilities that they are entitled to the rural allowances they claim payment for from the Respondent, the Eastern Cape Department of Education.
31. The Applicants’ referral to the ELRC is therefore dismissed.
32. I make no order as to costs.

Commissioner:
Sally-Jean Pabst