ELRC981-21/22MP

Panellist: Asnath Sedibane
Case No: ELRC981-21/22MP
Date of Award: 21 August 2023

In the ARBITRATION between:

NTENTENI TM
(Union / Applicant)
and

DHET/GERT SIBANDE TVET COLLEGE
(Respondent)

Union/Applicant’s representative: Mr PJ De Beer (Legal Representative)
Union/Applicant’s address:
1st Respondent’s representative: Mr V Nkosi (Respondent’s Representative)
1st Respondent’s address:

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing between Mr Ntenteni Thulani Matthew and the Department of Higher Education and Training (DHET) / Gert Sibande TVET College (respondent) was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings on 14/10/2022 and physically on 16/01/2022, 27/03/2022 and 05/05/2023. The matter was set down for arbitration in terms of section 191(5) (a) of the Labour Relations Act 66 of 1996 (“LRA’’).

2. The proceedings were conducted in English and were both manually and digitally recorded. The applicant testified as the only witness in his case. The respondent called one witness, Mr Jan Pretorius, Deputy Principal Corporate Services at Gert Sibande TVET College who only gave testimony in chief but was not available for cross-examination.

3. The applicant was present throughout the arbitration process and he was represented by an Attorney, Mr PJ De Beer of Wheeler, Slabbert & Ledwaba Attorneys. The respondent was represented by Mr V Nkosi, an official of the Department of Higher Education and Training.

4. The parties submitted bundles of documents. The applicant’s bundle was marked as bundle “A” and the respondent’s bundle was marked as bundle “R”.

5. I issued a directive on 31/07/2023 for the parties to make written submissions of closing arguments by no later than 07/08/2023. I have received both parties’ closing arguments and have taken these into consideration when making this arbitration award.

 PRELIMINARY ISSUES
6. Respondent’s attendance virtually
6.1 The arbitration was schedule to proceed physically on 16/01/2023. The Respondent’ representative made an application to attend the arbitration virtually on the day, due to him being in Pretoria and having had the impression that the matter was scheduled to proceed virtually.
6.2 The application by the respondent to attend the arbitration virtually on 16/01/2023 was opposed by the applicant. The applicant’s representative submitted that the parties had agreed with the Panellist in the previous sitting that the matter would proceed physically due to the challenges that had been experienced with network connection in the past and that the notice of set down was clear that the arbitration would be proceeding physically.
Ruling
6.3 I ruled that it would be fair and in the interest of justice to proceed with the arbitration with the respondent attending virtually, as I did not see any prejudice that the applicant would suffer under the circumstances.
6.4 Postponements
The respondent applied for postponements on 05/05/2023, on 02/06/2023 and again on 14/07/2023. The applications for postponement were based on the unavailability of the respondent’s witness, Mr Pretorius due to ill-health. The applicant did not oppose the application for postponement on 05/05/2023 but opposed the two subsequent applications for postponement and cited prejudice on the applicant.
Ruling
I granted the applications for postponement on 05/05/2023 and on 02/06/2023. I further ruled on 02/06/2023 that no further postponement will be granted based on the ill-health of Mr Pretorius. I ruled against the application for postponement on 14/07/2023 based on my previous ruling.
6.5 Admission of respondent’s only witness’ evidence
On 14/07/2023, the respondent made an application that Mr Pretorius’ evidence in chief be accepted as evidence that has not been challenged, alternatively that Mr Pretorius be allowed to submit his evidence through a sworn affidavit or that both parties’ evidence be disregarded and the parties be allowed to submit written heads of arguments. The applicant objected to this application.
Ruling
I ruled that both parties address me in writing on the issues raised in the respondent’s application, with the respondent submitting their arguments by no later than 21/07/2023 and the applicant submitting their response to these arguments by no later than 28/07/2023. The respondent failed to submit the written arguments. I therefore issued the directive mentioned in paragraph 5 above, for parties to submit written closing arguments.

 ISSUES TO BE DECIDED
7. The dispute was referred to the ELRC by the applicant as an Unfair Labour Practice in terms of section 186(2) (a) of the LRA.

8. I am required to determine whether the respondent(s) committed unfair labour practice relating to benefits by not awarding the applicant a bursary between the years 2014 to 2019. If I find that the respondent(s) committed unfair labour practice against the applicant, I must determine the appropriate relief.

9. The relief that the applicant seeks is compensation in the amount of R125 857.80 (ONE HUNDRED AND TWENTY-FIVE THOUSAND, EIGHT HUNDRED AND FIFTY-SEVEN RANDS AND EIGHTY CENTS ONLY), being the total cost of the applicant’s studies.

10. After the narrowing of issues, the parties agreed that the following issues were common cause between them:
10.1 The applicant is a Lecturer at Gert Sibande TVET College, earning a basic monthly salary of R24 763-00.
10.2 The applicant was employed by the respondent on 15 January 2008.
10.3 The dispute arose on 05 April 2022.

11. The parties agreed that the following facts were issues in dispute:
11.1 Whether the respondent followed the prescribed and practical procedures with regard to the administration and financial assistance required for a bursary in respect of the applicant, for the years 2014 to 2019.
11.2 Whether the respondent failed to adhere to the recommendations by the Public Service Commission on the issue of the applicant’s application for a bursary.
11.3 Whether the respondent failed to substantively consider the applicant’s application for a bursary.
11.4 Whether the respondent has procedurally and substantively committed an unfair labour practice against the applicant.

  BACKGROUND TO THE DISPUTE
12. The applicant, Mr Thulani Matthew Ntenteni is employed as a Lecturer at Gert Sibande TVET College, at the respondent’s Balfour Campus. He applied for a bursary from the respondent, between 2014 and 2019. He lodged a grievance relating to his applications for bursary and when this remained unresolved, the applicant referred the matter to the Public Service Commission (PSC).
The PSC made recommendations to the respondent regarding the issue of the applicant’s applications for a bursary. The applicant alleges that the respondent(s), being either the Department of Higher Education (DHET) or Gert Sibande TVET College or both of them jointly, committed an unfair labour practice against him by not providing him with a bursary between the years 2014 and 2019.

SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Mr. Thulani Mathew Ntenteni, testified under oath as follows:
13. He has been employed as a Lecturer by the Respondent since 2008. He applied for a DHET bursary in 2014, which pays 100% in fees. He had been admitted to study a Bachelor of Technology in Quantity Surveying at TUT. He did not get any response to his application for a bursary, from the respondent(s).

14. He applied again in 2015 for the same studies in 2016. A Human Resources at the College advised him to take the issue up with DHET. He spoke to several officials at DHET, including Ms Kekana. When he spoke to Ms Niecker at the College, she informed him that his application had been couriered to the College but they did not know where some of the applications were. He decided to lodge a grievance. The grievance was referred to the Regional Director, Dr Balkrishen who scheduled a meeting with the Campus Manager, Ms Bengu. In his meeting with Dr Balkrishen and Ms Bengu, Dr Balkrishen suggested that the matter be referred back to the central office.

 15. In a subsequent meeting with the late Principal, Ms Mange, Mr Motloung, Ms Naicker, Ms Bengu and Mr Pretorius, he had complained that he was not represented. He was forced to agree, under duress, that the College would not pay historical debt. He mentioned this in another meeting in 2018. Mr Pretorius implemented the bursary of R6500-00 which he did not even apply for.

 16. He later referred the matter to the Public Service Commission and after investigation the PSC made recommendations to Ms Mange which she delayed implementing. The DHET was engaged, including a colleague of Mr Nkosi, the respondent’s representative who told him to send his statements which he did. The statements did not include toll fees and accommodation. He was later informed by Mr Nkosi that the official had taken early retirement. He later received a letter which the Minister had sent to the PSC. That is when he declared the dispute. He had applied to enrol for different qualifications at different institutions.

 17. In 2017 he was advised by HR to register for PTC. He asked about the B-Tech he had already enrolled for but was ignored. He was told that fees for the PTC would be paid by SETA but he was later told that it was an NSFAS bursary. The PTC was not fully paid for, he had to use other means to pay for the studies.

 18. The bursary he had applied for was for B-Tech in Quantity Surveying but he could not register as TUT only offered the studies full-time. It was only in 2013 that the studies could be done part-time, so he had applied for 2014. The DHET bursary paid 100% and the internal bursary only paid 60%.

 19. The respondent(s) never complied with the recommendations by the PSC. Page 33 is a financial statement. He had used the FUNDI loan to pay TUT and UNISA. This is the debt that the respondent(s) must pay him.

 20. The respondent(s) should pay the bursary and not wait to see whether or not he passed the modules. The respondent(s) cannot say that they did not pay the bursary because he had failed some modules. He never appeared before the bursary committee and it is not procedure to do so. He never received any correspondence from the bursary committee.

  21. Under cross-examination, Mr Ntenteni testified that he had started applying for the DHET bursary in 2014.He confirmed that he had a diploma in building. In 2012 he had applied to study at UNISA but he had failed to register after they sent him a sms to pay the registration fee.

 22. He had applied for the 60% bursary to study at Wits. In 2017 he applied for a DHET bursary to study at TUT. In 2013 he applied for the 60% bursary, with the maximum of R6500-00 to study at TUT. In 2014 he had applied for the 100% DHET bursary. He had already registered at TUT at the time he applied for the bursary. He did not get a response to his application.

 23. It was put to Mr Ntenteni that there is no guarantee that if one applies for a bursary he will get it, the employer exercises a discretion in awarding bursary. His response was that the employer pays 1% in skills levy and according to him he must get a bursary.

 24. The Principal was supposed to award him the bursary. He teaches quantity surveying so a B-Tech or Honours is education related. He was also not supposed to be punished for his supervisor’s motivation letter. It was already late when he was asked to appeal that. The Supervisor was supposed to be told to submit the motivation letter.

 25. It was put to Mr Ntenteni that the Principal mentioned two reasons for him not getting the bursary, it was not education related and there was no motivation letter. He reiterated that he should not be punished for his supervisor’s failure to submit the motivation latter. He was referred to pages 10 and 11 of the Bursary Policy which states roles of the role players. He agreed that the Supervisor must motivate but he contended that if he had submitted the application to the Office Manager’s office then the Supervisor can attach the motivation letter. It is some kind of sabotage.

 26. He confirmed that from 2014 until 2022 he did not get a bursary from DHET. He only received a bursary in 2022 now that he is studying towards a Master’s degree in Quantity Surveying. He is owed the amount of R125 857-80 that is on page 33 of bundle “A” because he applied for a bursary and did not even get a response. He is owed by both the College and DHET.

 27. He disputed that the respondent(s) did not owe him the money because he was never awarded the bursary. He signed the contract on page 5 of bundle “A”, but the contract has wrong information. He only found out in 2014 that the amount had been paid, it was paid without his knowledge. The College was refunded.

 28. He was forced to agree, in the meeting with Mr Pretorius and the Principal that historical debt would not be paid. He did not have a representative in that meeting. He had signed under duress. He did not lodge a grievance about this but had written to the PSC. There were also many grievances he had submitted. He disputed that the agreement was in line with the Bursary Policy.

 29. It was put to Mr Ntenteni that the recommendations by the PSC were not binding, the Minister could choose to take them or not. In terms of the PSC recommendations the Principal should allow the Bursary Committee to adjudicate on his application. His response was that all fifty Colleges sent their applications through the office of the Office Manager who sent them to the Central Office and to the DHET. The applications were mismanaged in the Central Office and they gave bursaries to whoever they wanted to give in the Central Office.

 30. He disputed that the recommendations of the PSC were to the Minister to reconvene the Committee, which was done. He contended that the respondent wanted to pay R6500-00 into his bank account, which he refused. He did not add accommodation and toll fees to the amount of R125 857-80.

 31. He did not dispute that there was no contract for a bursary for 2015, 2016 and 2017. He confirmed that he had previous debts. He does not think that the Bursary Policy says that you study first then they pay. Mr Motloung from HR was interviewed by the investigator from the PSC. He had lied and had not given sufficient information.

 THE RESPONDENT`S CASE:
32. The respondent’s only witness, Mr Jan Pretorius gave evidence in chief under oath on 27/03/2023. The matter was adjourned after his examination in chief on the day due to time constraints. Mr Pretorius was absent 05/05/2023 due to ill-heath. He was again absent on 02/06/2023 based on the same reason. I made the ruling mentioned in paragraph 6.6 and subsequently issued a directive for parties to submit their written closing arguments, as mentioned in paragraph 5 above.

 33. I have excluded the evidence of Mr Pretorius as he has not been subjected to cross-examination.
ANALYSIS OF EVIDENCE AND ARGUMENTS
34. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
35. The applicant has declared a dispute relating to promotion, in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995, which provides as follows:

186 Meaning of dismissal and unfair labour practice

(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an
employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

36. The applicant has led evidence and made submissions that the respondent(s) committed an unfair labour practice against him, in not awarding him a bursary and that this has resulted in him incurring costs for his studies amounting to R125 857-80. It is the submission of the applicant that the respondent must be ordered to pay him this amount.

 37. It was the evidence of the applicant that he had been applying for a bursary from the respondent since 2014. The bursary was for the purpose of him pursuing further studies. It is common cause that the applicant was not awarded a bursary by the respondent(s) until in 2018 when the College committed an amount of R6500-00 towards the applicant’s studies.

 38. Amongst the documents referred to in this arbitration is the Bursary Policy which the applicant confirmed the knowledge thereof. Another document of significance is the letter detailing recommendations by the Public Service Commission in relation to the issue of the non-awarding of a bursary to the applicant.

 39. It is common cause that the applicant lodged a grievance based on his applications for a bursary between the period 2014 and 2018 and that this grievance was escalated to the Public Service Commission. It is further common cause that the Public Service Commission made recommendations to the Minister of Education, based on the applicant’s grievance. The applicant acknowledged that the Minister responded to the Public Service Commission following the Commission’s recommendations.

 40. The PSC has recommended that the Principal of the College should allow the Bursary Committee to adjudicate on the applicant’s applications for a bursary for the academic years 2015, 2016 and 2017. The PSC further recommended that the Department should discipline the College officials who flouted the grievance procedure and the Departmental Bursary Policy and those who concluded an irregular agreement for the payment of R6500-00 towards the applicant’s studies for 2018 after he was made to fill a Bursary form.

 41. The applicant conceded under cross-examination that one of the requirements in the the Bursary Policy was that the employee’s Supervisor must submit a motivation for the awarding of the bursary to the employee. He further conceded that there was no such motivation in his applications but contended that if he had submitted his application for a bursary to the Office Manager then his immediate Supervisor could attach the motivation.

  42. The applicant contended that the respondent(s) were not even responding to his applications for a bursary hence he lodged a grievance and ultimately declared this dispute. He was never awarded a bursary except for the undertaking by the College to contribute R6500-00 towards his studies in 2018, which amount he had refused to accept.

 43. It was put to the applicant that he had agreed with the College in 2018 that the College would not be responsible to pay any historical debt. The applicant did not dispute that the parties had reached such an agreement, but he testified that he had been forced to agree to this and he had made the agreement under duress.

 44. The Labour Appeal Court in Apollo Tyres (Pty) Ltd v CCMA and others (DA/11) [2013] ZALAC 3 confirmed that in an unfair labour practice dispute relating to benefits, the onus is on an employee to prove that he/she has a right or entitlement ex contractu or ex lege or an advantage or privilege which has been offered or granted to an employee in terms of a Policy or practice subject to the employer’s discretion and that the employer exercised the discretion unfairly.

 45. Having established in this case that the applicant’s claim is founded on a Policy (the Bursary Policy), it was incumbent upon the applicant to prove that the respondent(s) committed an unfair labour practice by not awarding him a bursary for the period 2014 to 2019, that the respondent(s) did not act in a fair and equitable manner when considering his applications and that he has suffered prejudice as a result of the act or omission by the respondent(s).

 46. The Bursary Policy on roles and responsibilities provides in clause 7.2.1.1 that “Bursary Committee adjudicate on all applications, awarding of bursaries and ensure that the processes are followed in a fair and equitable manner. “Clause 7.2.3.4 of the Policy provides that “Managers/Supervisors recommend the bursary application to the Departmental Bursary Committee in such a manner that is beneficial to both the employer and employees.” Clause 7.2.4.1 provides that “Employers take the initiative of applying for financial assistance in consultation with managers/ supervisors.”

 47. The applicant did not lead any evidence to show that his applications for a bursary were compliant in all respects with the Bursary Policy. He admitted that his supervisor had not motivated his applications but said that it was not his fault if the Supervisor did not submit motivation for him as he had submitted his applications. I find this problematic in that the Bursary Policy provides that a recommendation by the manager/supervisor is required for an application for a bursary. The applicant further does not provide evidence that he had sought the motivation from his supervisor and that such motivation was unreasonably withheld by the supervisor.

 48. By his own admission, the applicant had in 2018 entered into an agreement with the respondent(s) that no historical debt would be paid by the respondent(s) in respect of his studies. This effectively means that he absolved the respondent(s) from reimbursing him for any fees he had paid to the institutions where he had registered prior to 2018. The applicant contends that he had signed the agreement under duress. He however does not provide evidence of how he was forced or made to sign the agreement against his will. If indeed the applicant was forced to sign such an agreement, I do not see why he would not lodge a formal complaint/ grievance about this and only in 2019 lodge a grievance about the unfairness by the respondent(s) not to award him a bursary.

49. The respondent(s) failed to lead evidence to show that there was no unfairness in the decision by the respondent(s) not to award the applicant a bursary between 2014 and 2019. It is however trite that the one who alleges must prove. As I have already stated above, the applicant bears the onus of proving that the respondent(s) committed an unfair labour practice against him by not awarding him a bursary between 2014 and 2019.

 50. There is no evidence before me that the applicant had complied with all the requirements of the Bursary Policy and that the respondent(s) had unfairly declined to award him the bursary. The Labour Court in Aucamp v SARS (JS884/2011) [2013] ZALAZJHB 266; [2014] BLLR 152 (LC) in considering unfair labour practice related to benefits held that if the benefit is not a guaranteed contractual right per se, the employee could still claim same on the basis of an unfair labour practice if the employee can show that he/she was unfairly deprived of the same. There is no evidence in this case that the respondent(s) exercised a discretion not to award the applicant a bursary and that such discretion was exercised unfairly.

 51. The applicant wants to be refunded the amount of R125 857-80 by the respondents. This amount is what the applicant alleges to have paid to study at two institutions between 2014 and 2019. The applicant has not led evidence of any right that he had to the awarding of the bursary and subsequent payment of the amount claimed. As held in SAPS v Sotheni and others (JR2236/16) [2020] ZALCJHB57, in dealing with alleged unfair labour practice pertaining to benefits the notion of unfairness cannot serve to create a right. The applicant must prove the existence of a right, even if it is subject to an employer’s discretion. If there is no right, there is no claim.

 52. The Labour Court in the SAPS v Sotheni case supra confirmed that if the applicant has not met the requirements set out in the Policy to acquire the benefit, the employer cannot be found to have committed an unfair labour practice by not awarding the applicant the benefit.

 53. In the case of Mr Ntenteni, there is no evidence that was tendered to show that he had met the requirements of the Bursary Policy and that the respondent(s), through the Bursary Committee had failed to adjudicate his application for a bursary fairly. Clause 8.2 of the Bursary Policy sets out the criteria for awarding a bursary. Amongst the criteria is the requirement for the employee to submit a motivation from their manager/supervisor confirming the relevance of the intended field of study to the Department and the extent to which such studies will add value to the Department and the employee’s career development. The Policy provides that where there is a complaint regarding the motivation, the matter must be referred to the Bursary Committee.

 54. The applicant’s representative has submitted that the respondent(s) in not awarding a bursary has committed an unfair labour practice against the applicant, both procedurally and substantively. No evidence was led on the procedural unfairness committed by the respondent(s) in this case. The Labour Court in Skhosana v CCMA and others (JR2160/15) [2019] ZALACJHB 39 dealt with the issue of the distinction between procedural and substantive unfairness in unfair labour practice relating to benefits. The Court found that it was often difficult to draw a clear distinction between what is substantive justification for the conduct of an employer and what can be seen to be procedurally fair in the course of such conduct. It is therefore not appropriate to separate procedure and substance in unfair labour practice relating to benefits. What is required is to show that the employer acted unfairly against the applicant.

 55. I cannot find any justification for the applicant to be reimbursed for monies he had paid towards his studies between 2014 and 2019 in the absence of a right to the bursary or evidence to show that the non-awarding of the bursary by the respondent(s) amounted to unfair labour practice. The amount itself is not supported by any proof in the form of receipts or invoices. The Bursary Policy also provides for reimbursement for payments made by an employee, on receipt of the original proof of payment if the employee is entitled to such monies in terms of the Policy.

 56. After considering all the evidence and submissions in this matter and after considering the applicable prescripts and relevant case law, I find that the applicant has not discharged the onus required to prove the unfair labour practice by the respondent(s) relating to the provision of a benefit in this matter.
Award

57. The applicant has failed to prove on a balance of probabilities that the respondent has committed an unfair labour practice by not awarding him a bursary between 2014 and 2019.

 58. As a result of the aforesaid, the applicant’s application is dismissed.


Asnath Sedibane
ELRC Dispute Resolution Panellist