ELRC843-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case number: ELRC843-22/23EC

In the matter between

NAPTOSA obo Sweli & others Applicant

And

Education Department of Eastern Cape Respondent

Appearances: For the Applicant: Mr. Aaron Mhlontlo (NAPTOSA)
For the Respondent: Mrs. Ntombomzi Damane – Acting Deputy: CES:
Labour Relations
Arbitrator: Thobela Ncetezo
Heard: 23/06 2023, 11/10/2023
Delivered: 6 November 023
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2(a) – Unfair labour practice relating to benefits.

ARBITRATION AWARD



Details of hearing and representation
1. The applicants were represented by NAPTOSA official, Mr. Aaron Mhlontlo. Mrs. Ntombomzi Damane who is Acting Chief Education Specialist: Labour Relations represented the respondent the Respondent, Education Department of Eastern Cape.

2. The applicants introduced one witness and submitted a bundle of documents, which were accepted by the Respondent. The Respondent also introduced one witness and submitted a bundle of documents which was accepted by the applicants. All witnesses testified under oath and the proceedings which were digitally recorded were conducted in English.

3. The parties requested to submit closing arguments in writing for consideration, the last which were received on 23 October 2023.

Issue to be decided

4. I am required to decide whether the conduct of the Respondent constitutes an unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (the Act).

Background to the dispute

5. The dispute lodged by applicants was about the rural incentive that they used receive in terms of Government Notice No:30678 dated 18 January 2008, which they submitted was unfairly terminated on 31 July 2019. They further submitted that other educators in the same school continued to receive the incentive until January, March 2020. Another educator’s rural incentive was terminated in January 2021. Other schools in the same area continues to receive the rural incentive until May 2022 when it was terminated countrywide. This was terminated without any collective agreement between the respondent and trade unions.

6. The respondent submitted that all the necessary processes to inform the school about the termination of the rural incentive were followed. The trade unions within the chamber took the decision on how the rural allowance was to be implemented at the schools and it was the resolution of the PELRC and a memo for a resolution on rural allowance was communicated was sent to the schools. The first termination was on 30 April 2019 and on 20 April 2019 for new schools.
Survey of evidence and arguments
Applicant’s case

7. Mr. Sifumene Sweli, testified that he has been working for the respondent since 1997 and is currently a school principal at Upper Tabase Primary School. He further testified that the purpose of the rural incentive was to retain teachers in rural areas. His school was one of the schools that were identified to qualify for rural allowance based on the distance of the school to town. They started to receive the incentive in 2013.

8. In 2019 an internal memo was issued by the respondent which advised all schools that new schools would be selected for the rural allowance. Later on, another internal memo was issued which advised the district that the selection of new schools for the rural allowance was suspended and that all schools that were at the time receiving the rural incentive would continue receiving it. However, on 15 July 2019 he received an e-mail which informed him that the rural incentive at his school would be stopped on 31 July 2019. The memo that he received was questionable to him because it did not have signatures of the parties involved.

9. The nearby schools, which are about two kilometres away from their school, continued to receive rural incentive even after theirs were terminated (Page 11 of Applicant’s Bundle). These schools received the rural allowance before them and after theirs was terminated. He further testified that some educators at Upper Tabase still received the rural incentive.

10. Under cross-examination the witness admitted that he was aware that he was represented in the chamber by his trade union. He became aware that his school had been removed from receiving the rural allowance in July 2019 when he received a letter from the respondent in his capacity as a school principal. He stated that he does not know when the other schools which he compared to his school started to receive the rural allowance. He also did not know what the criteria for terminating the incentive was. He further testified that they were not informed how long the allowance was for. He also conceded that he did not know when other educators at his school started to receive their rural incentive.

Respondent’s case

11. The witness of the respondent, Mr. Ayanda Bidla, testified that he is employed as Principal Personnel Officer: Human Resources Administration. He supervises the implementation of rural, hostel, housing, nightshift, Sunday, and public holiday’s allowances. He further testified that only teachers above RVQ13 and those who were not identified as additional teachers received rural incentive. He further testified that Upper Tabase Primary School was a beneficiary of the rural incentive, but it was terminated on 31 July 2019. A letter from the late Chief Director, was sent to different schools for the attention of school principals, including Upper Tabase, informing them that they would not be receiving the rural incentive from August 2019. The school principal was supposed to inform teachers at his school and for Upper Tabase this information was sent to Mr. Sweli.

12. He further testified that the District Task Team (DTT) selects schools to benefit from the rural allowance and forward the list to the head office for approval. He stated that not all schools in the district received this benefit and Upper Tabane benefited from this allowance for two terms.

13. He disputed the termination of the rural incentive for three Applicants, namely, Ms. Makhasi, Ms. Mqwala and Mrs. Cabane-Moses. He further testified that Makhasi was an educator at Linge Primary School for the Education Department of Western Cape at the time and only started at Tabase on 30 September 2020 and never received a rural incentive from the respondent. He further testified that Ms. Mqwala’s rural incentive could not have been terminated in January 2021 because she only arrived at Tabase on 3 March 2021. Mrs. Cabane-Moses was not an educator at Upper Tabane in August 2019 and that she received her rural incentive from Ntekelelo Junior Secondary School, and it was terminated in February 2020.

14. Under cross-examination the witness testified that the names of the schools that were to receive rural allowance were written by the Chief Director who was in its control. He further testified that when the respondent sends letters to the school, it does so through the district office. The school principal would then collect the letter from the district office, and for Tabane this is done by Mr. Sweli. He did not agree that the rural incentive was at the time stopped for all schools, but only selected schools were beneficiaries of this incentive. He admitted that the letter which addresses the termination of rural incentive (Applicant’s Bundle – page 12) was written by him, in response to the letter from Mr. Sweli who was enquiring about the termination of the incentive (Applicant’s Bundle – Page 10).

Closing arguments by the Applicant

15. The applicants argued that in terms of the provision of the Gazzette, 30678 the only designated official who is mandated to implement and terminate the payment are the Director General at National level and Head of Department at Provincial level. The Minister and the MECs are just political heads of the Department of Basic Education meant to monitor the progressive implementation.
Closing arguments by the Respondent
16. The respondent argued that Upper Tabase Primary School in OR Tambo Inland was selected amongst the schools as the beneficiary of Rural Incentive for the period decided by the PELRC and once the period agreed upon lapse new selected schools came in as beneficiaries and those to be removed are given notice of termination as such exercise was done with Upper Tabase Primary School through correspondence to the principal of the school on the 15 July 2019. It was further argued that educators benefited from the Rural Incentive like other selected schools for the periods decided by the PELRC and were also identified as schools to be terminated from the incentive and new schools were introduced in the district. The respondent further argued that the alleged claim of monies owed by the Employer to the educators of Upper Tabase Primary School has no basis.
Analysis of evidence and arguments

17. The dispute before me was referred in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended. In disputes of unfair labour practice, the principle of “he who alleges must prove” is applicable. The burden of proof is therefore on the applicants to prove that the conduct of the respondent is an unfair labour practice in terms of the above section, which provides that:
“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.
18. The applicants are challenging the termination of the rural incentive from August 2019 to May 2022. The rural incentive is provided for in terms of National Government Gazzette No. 30678 of 18 January 2008(GG Notice). It was common cause that the applicants started to receive the rural incentive from 2013 but it was terminated on 31 July 2019, except for the other three applicants whom the respondent stated they only joined Upper Tabase after the rural incentive was terminated. In July 2019 the principal of the school, who is also an applicant in this matter, received a letter from the respondent that the incentive was being terminated for their school but for other schools it was terminated in May 2022. The respondent did not deny this testimony but stated that there are schools in the same area that still received the rural incentive but stated that the applicants’ school received it for two terms.

19. The Applicants also testified that while this rural incentive was terminated for other educators, others in the same school continued to receive it until January to March 2020 and January 2021. The respondent denied that the three educators that the applicants are referring received rural incentive after it was terminated. It was testified that the three educators were not employed at Upper Tabase at the time in question. Miss. Mqwala arrived on 3 March 2021 and Mrs. Cabane-Moses was a beneficiary of rural incentive from another school and was also not an educator at Upper Tabane in August 2019. The latter’s incentive was terminated in February 2020. Mrs. Makhasi arrived in Upper Tabane on 30 September 2020. This testimony was not denied by the applicants. It is therefore clear that the rural incentive received by the educators that the applicants were referring to, was the continuation from their previous schools and not as Upper Tabane educators. (See pages 2, 5 and 8 of the Respondent’s Bundle for the relocation/transfer dates of the above educators). This testimony indicates that when these three educators still received this incentive from their respective former schools. When they arrived at Upper Tabane the rural allowance had already been terminated but they continued to receive it from their previous schools. They had relocated to a school that qualified for rural incentive. I could not find any reasonable justification for terminating rural incentive at Upper Tabane while other schools in the same area continued to receive this incentive. There was no testimony or evidence which showed that the applicants no longer qualified to receive the rural allowance in terms of the enabling legislation.

20. The GG Notice further provides that:
“…an educator must continue to perform at the level which is stipulated in the incentive contract to retain the incentive, otherwise the employing department shall give the educator one term’s notice of termination of the incentive”.

21. In this case the applicants were informed on 15 July 2019 that the incentive will be terminated on 31 July 2019. This notice was not in compliance with the provisions of the GG Notice. It is therefore my considered view that the conduct of the respondent constitutes an unfair labour practice.

22. The internal memo that the applicants referred to (Page 7 for Applicant’s Bundle) stated that “Districts are required to continue payment of all educators who were receiving payment of rural incentives as of 30 April 2019”. Prior to this sentence it is stated that the implementation of new criteria for payment of rural incentive should be placed on hold till further notice. It is, however, not stated in the memo that continuation of the rural incentive allowance should remain indefinite or up to a specific date but till further notice, which in my view should have been in terms of the GG Notice, where applicable. The discontinuation of rural incentive allowance at Upper Tabane, it was testified, was a resolution made in the Chamber meeting by the Respondent, SADTU, PELRC, CTU-ATU and Respondent. I am however not convinced that the termination of the incentive was made in terms of paragraph 7 of the GG Notice.

23. Based on the above reasons, I am of the view that the applicants have proved on a balance of probabilities that the conduct of the respondent amounts to unfair labour practice as contemplated in Section 186(2)(a) of the Act.

24. I accordingly make the following award;

Award

25. The conduct of the respondent, Education Department of Eastern Cape, amounts to an unfair labour practice as contemplated in Section 186(2)(a) of the Act.

26. The relief awarded to the applicants has been calculated from August 2019 to May 2022 and the amounts are as follows:
26.1 K. Gabula – R89 301.58
26.2 B Ngewana - R89 301.58
26.3 UV Njemla - R89 301.58
26.4 S Sweli - R89 301.58
26.5 N Thelejane - R89 301.58
26.6 DP Makasi – R77 668.33
26.7 Q Cabane-Moses – R73 015.03
26.8 L Mqwala – R47 654.50

27. The respondent, Education Department of Eastern Cape, must pay the respective amounts stated in the above paragraph to the applicants listed in the same paragraph by no later than 29 December 2023.


Signature:


Commissioner: Thobela Ncetezo
Sector: Education