Award  Date:
 30 August 2023 




Commissioner: Amos Mthimunye
Case No. ELRC 1030-22/23GP
Date of the ruling: 30 August 2023





[1] This was arbitration process set down for hearing at 09h00, on 09 June 2023, 03 and 14 July 2023, and 14 August 2023 at the premises of the respondent at No. 265 Pretorius Street, President Towers, Pretoria. The applicant, LUZZETTE MONTJANE was present and represented by Mr Karabo Setai (SADTU Shop steward), while the respondent, GAUTENG DEPARTMENT OF EDUCATION was represented by Mr John Marakalla (official).

[2] Both parties handed in bundles of documents which were accepted and marked “A”, and “R”.
[3] The proceedings were digitally recorded, and handwritten notes were also taken.

[4] The applicant was employed by the respondent as Chief Therapist at Pretoria CP School. She was engaged on 01 February 2023. He referred an unfair labour practice dispute relating to promotion. She is aggrieved in that the respondent did not remunerate her according to the appointment letter. She is seeking the respondent to pay her an amount of R51 626.00 which represents a difference of salary between the salary scale of the Chief Therapist and that of a therapist for a period 01 February 2023 to 31 May 2023. The respondent is a government department of education commonly known as Gauteng Department of Education (GDE).

[5] The dispute remained unresolved, and the arbitration process commenced. Hereunder is a brief account of the arbitration in terms of Section 138 of the Labour Relations Act 66 of 1995 (hereinafter referred to as LRA).

[6] The applicant is challenging both the procedural and substantive fairness on the conduct of the respondent.

Common cause issues
[7] The respondent advertised a therapist post, (Post Level1) PL1, for Tshegofatso Special School.
[8] The applicant applied for the post and the respondent successfully appointed her to the post.
[9] The applicant was employed by the respondent (Limpopo Department of Education) as Chief Therapist for a period 01 August 2019 to 31 January 2023.
[10] The applicant took up a therapist post from the respondent (Gauteng Department of Education) on 01 February 2023.
[11] The salary scale for Therapist ranges between R332 427.00 and R378 318.00 per annum.
[12] The salary scale for Chief Therapist is an entry level of R487 305.00 per annum.
[13] The salary adjustments with effect from 01 April 2023 for a therapist is R359 622.00 per annum, and for a Chief Therapist is R523 065.00 per annum.

Issues in dispute
[14] The respondent offered the applicant a salary notch of R487 305.00 per annum.
[15] The respondent appointed the applicant to a post of Chief Therapist.
[16] The respondent offered the applicant salary notch of R332 427.00 per annum.
[17] The respondent gave the applicant appointment letter dated 05-12-2022.
[18] The appointment letter dated 05-12-2022 is fraudulent.
[19] The respondent negotiated a salary with the applicant.

[20] Whether or not the respondent committed unfair labour practice and whether the conduct of the respondent was fair or unfair.
[21] Appropriate relief, if any.

The applicant’s stated case
[22] The applicant, Ms MASEROLE LUZZETTE MONTJANE testified under oath that on 05 December 2022 the respondent’s official, phoned and informed her that the respondent has successfully appointed her to a post she applied for. He (Katlego Mphahlele) requested her to come and sign the appointment letter.
[23] She enquired what was not salary notch offered to her because she was on a salary notch of a Chief Therapist, Post Level 2 (PL2). She asked her whether she and the respondent can negotiate an acceptable salary notch. The said official advised her to come to the district office with her current salary advice or pay slip.

[24] On 09 December 2022 she came to the district office with her salary advice. Upon arrival she was served or assisted by Mr Katlego Mphahlele. She handed in her pay advice to Mr Mphahlele. Mr Mphahlele took the salary advice and went away to other offices. Mr Mphahlele took about twenty (20) minutes before he came back. Upon arrival Mr Mphahlele told her that it worked in her favour in that the respondent has agreed to offer her a salary equivalent to what she was earning as Chief Therapist in Limpopo.
[25] Since she was happy about het offer, she told Mr Mphahlele that she was going to resign from her post in Limpopo. She signed the appointment letter and gave it back to Mr Mphahlele. She went back to Limpopo. She could not serve a notice of resignation since it was mid-December and that officials working at HR were not available. She ultimately served notice of resignation from 01 to 31 January 2023. On 01 February 2023 she started working for the respondent at Tshegofatso Special School.

[26] On 01 March 2023 she received a phone call from Mr Mphahlele who told her that the respondent could not pay her a salary as per the appointment letter she received on 09 December 2022 because there was a mistake. Mr Mphahlele requested her to come to the district office. On 13 March 2023 Mr Mokoena requested her to come to the district office and she complied. At the district office she met with Ms. Thembi Khoza from HR office. Mr Mphahlele explained what transpired and Ms Khoza told her that they will address the problem.

[27] At the district office she also spoke to Mr Thabo Mphosi who told her that there was negligence on the side of the respondent about her job offer. Mr Mphosi forced her to accept salary offer of PL1 and she declined. She was also taken to Mr Nel who promised that the problem will be resolved. She continued to work hoping that she will get her salary on pay day, 20 March 2023. She had not been receiving salary since February 2023.
[28] On 04 April 2023 she received an email from Mr Nel informing her that the salaries were being reviewed. This was in response to her email dated and sent to Mr Nel on 03 April 2023. She had hopes that the respondent will resolve her issue. Since then, there was no further communication from the respondent. On 01 June 2023 she was successfully appointed to a post of Chief Therapist at CP School, Pretoria Tshwane West department of education district.

Respondent’s stated case
[29] The respondent’s witness, Ms Lydia Mokoena testified under oath that she is employed by the respondent as Principal Personnel Officer at Tshwane South THRS Unit. Her job responsibilities are to supervise employees in the Appointments Section.

[30] She does not know of any salary negotiations between the applicant and the respondent. She does not know the appointment letter that says the applicant was appointed as Chief Therapist. She knows the letter that says the applicant was appointed as Therapist.

[31] It came to her attention when they were processing the appointment letter of the applciant that the respondent did not advertise a post of Chief Therapist and that the remuneration was not for a Chief Therapist. She took the letter to her superior, Ms Thembi Zwane. She amended the said appointment letter and sent it to E-Gov for processing.

[32] On 13 March 2023 she and Ms Khoza discussed the salary notch of the applicant. They reduced the salary notch from that of a Chief Therapist to that of a therapist. The respondent will suffer financial loss which would result into overpayment if it paid the applicant incorrect salary.

[33] Ms Poppy Sindane works under her supervision. She does not know the letter of appointment that Ms Sindane generated. It was a fraudulent letter. The email that talks to salaries being under review meant that there were going to be salary increments from 01 April 2023.

[34] The respondent’s witness, Mr Katlego James Mphahlele testified under oath that he is employed by the respondent as Chief Personnel Officer. His job responsibilities are to process temporary appointments, transfers, promotions, and issue letters of appointment to the successful candidates.

[35] On 09 December 2022 he presented the applicant with a letter of appointment. He took the applicant through the appointment letter. The applicant raised a concern about the salary notch. He told the applicant that he is not responsible to generate appointment letters. He took the appointment letter to Ms Poppy Sindane and told her that the applicant feels the salary notch was low.

[36] He does not negotiate salaries with the candidates. He gives out appointment letters to the candidates. He works under Mr Thabiso Mphosi whose job responsibilities amongst others are to secure the signature of the district director for the appointments. After the Director has signed the appointment letter Mr Mphosi gives it to him so that he can inform the principal of the school that the appointment was approved. The principal of the school will be responsible to arrange with the candidate to come and accept or decline the job offer.

[37] The respondent’s witness, Mr Thabiso Mphosi testified under oath that he is employed by the respondent as Assistant Director HRP Unit. He is responsible for the recruitment, managing advertising of posts, etc.

[38] He took an appointment letter of the applicant for signature to the district director. The District Director signed the said appointment letter. The letter he took for the District Director’s signature was for a therapist post at Tshegofatso Special School and was meant for the applicant.

[39] He does not have knowledge that the applicant came to negotiate salary after her appointment letter was signed by the District Director. The district office does not negotiate salaries but only the head office.

[40] He talked to the applicant in March 2023 and told her what had transpired. He referred the applicant to the Deputy Director, Mr Nel. The respondent budgeted for the post of Therapist. The school had already filled the post of Chief Therapist.

[41] The respondent’s witness, Mr Milton Ngobeni testified under oath that he is employed by the respondent as Tshegofatso Special School Principal. The applicant worked at his school as Therapist. The Chief Therapist post is occupied by Ms Dabula.

[42] He saw the appointment letter of the applicant that says she was appointed as Chief Therapist at his school. He received the appointment letter from the district office. The applicant had sign to accept the job offer. He also signed his part.

[43] He gave the applicant a job description of Chief Therapist. It was in accordance with the appointment letter of the applicant.

[44] I considered the evidence of both parties. It was common cause that the applicant was employed as Chief Therapist by the Limpopo Education Department. She resigned from this position and took up a new position of Therapist in the Gauteng Department of Education. This dispute arose because of her new position.
[45] The applicant referred a dispute of unfair labour practice relating to promotion. In fact, considering the fact that the applicant took up new employment in a new position made me to enquire what is promotion in the employment law context. The answer is simply that an employee gets promoted to a higher position. If the end result is not being promoted, meaning that the employee moves from a lower to a higher position, it becomes something else.

[46] Considering the facts of this case, it is clear that the applicant did not apply to be promoted to a higher position. The applicant is not aggrieved by the fact that the respondent committed an act or omitted to act in relation to the promotion. considering the true nature of this dispute it became unequivocal that the applicant wrongly characterised this dispute to be promotion whereas in fact the facts are telling a different story.

[47] I am required by law to determine what is the true nature of the dispute that I am dealing with. In this case it became clear from the facts that the true nature of this dispute is not about promotion to a higher position, but it is about something else. Something else in this case was about the alleged negotiation of a higher salary notch at the time of making and accepting the offer of employment. There, from the facts of this case there was no issue about promotion, the issue was and still is being appointed to a position of Therapist and negotiations in relation to the said appointment.

[48] In HOSPERSA obo Tshambi v. MEC for Health KwaZulu Natal [2016] 7 BLLR 649 (LAC) the Court reaffirmed that in arbitration proceedings, the Commissioner is not bound to slavishly follow the parties’ characterisation. The Commissioner must determine the true nature of the dispute by establishing the relevant facts. In line with this Labour Appeal Court decision, I determined the true nature of this dispute before me. The facts of this dispute in my view do not talk about promotion. The applicant is not complaining about being elevated to a higher position. The real issue is about appointment to a position the applicant applied for. It was clear from the facts that is not a promotional position. Therefore, the dispute cannot be about promotion.

[49] In Commercial Workers Union of South Africa v. TAO Ying Metal Industries and Others 2009 (1) BLLR (CC), the Constitutional Court held that a commissioner must, as the LRA requires, “deal with the substantial merits of the dispute. This can only be done by ascertaining the real dispute between the parties…The labels that parties attach to a dispute cannot change its underlying nature. The Commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented at the arbitration…”

[50] I considered the evidence presented by both parties, the merits and the desired outcome sought by the applicant in this dispute, and I concluded that the dispute of the applicant is not about promotion, but it is about appointment. It emerged during the leading of evidence that the real dispute is not about promotion, but it is about appointment. Considering these facts, I concluded that the applicant has failed to prove a case of unfair labour practice relating to promotion.

[51] The applicant has failed to prove a case of unfair labour practice relating to promotion.
[52] The applicant’s claim is hereby dismissed.
Amos Mthimunye

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