ELRC482-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN GRAHAMSTOWN

Case No ELRC482-23/24EC

In the matter between

PSA obo N Magopeni Applicant

and

Eastcape Midlands TVET College Respondent

ARBITRATOR: AW Howden

HEARD: 22 November 2023

DATE OF AWARD: 30 November 2023

SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 186(2)(a) - unfair labour practice relating to benefits – whether the Respondent acted fairly by reducing the Applicant’s acting allowance as Acting Campus Manager on her return from maternity leave.


ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedure Annexure C (As amended on 25 July 2023). The arbitration was held on 22 November 2023 at the Grahamstown Campus of Eastcape Midlands TVET College.

2. The Applicant, Ms N Magopeni – Persal No 54915571, was present and was represented by Mr B Benson from PSA.

3. The Respondent, Eastcape Midlands TVET College, was represented by Adv M Mali.

4. On the day both parties requested that Closing Arguments be submitted in writing. It was agreed that the written Closing Arguments would be submitted by 04:00 pm on 29 November 2023.

5. The written Closing Arguments were received timeously and taken into consideration when drafting this award.

6. The proceedings were digitally recorded.

ISSUES IN DISPUTE

7. I am required to determine whether or not the Respondent committed an unfair labour practice by reducing the Applicant’s acting allowance as Acting Campus Manager on her return from maternity leave, and if so to order payment.

BACKGROUND TO THE DISPUTE

8. The Applicant was employed by the Respondent as a Post Level 1 Lecturer on 1 January 2009. In 2013 the Applicant was appointed as an English Senior Lecturer Post Level 2.

9. The Applicant was appointed as the Acting Campus Manager for the Grahamstown campus on 1 May 2021.

10. The Applicant was on maternity leave for the period 1 February 2023 to 1 June 2023.

11. The Applicant was paid an acting allowance which was calculated on Post Level 5 for the period 1 May 2021 to 21 January 2023. On the Applicant’s return from maternity leave she was paid an acting allowance calculated on Post Level 3.

12. The Applicant has requested that she be paid on Post Level 5 for the period 1 June 2023 to 31 October 2023.

13. The Respondent submitted a bundle of documents. The documents were not in dispute and it was agreed that the documents’ contents were what they purported to be.

SURVEY OF EVIDENCE AND ARGUMENT

14. On 24 October 2023 the parties concluded a Pre-Arbitration Meeting Minutes which states the following:

15. Common Cause Facts:
- The Applicant was employed as a Post Level 1 Lecturer on 1 January 2009 before she was appointed as an English Senior Lecturer Post Level 2 in 2013. Subsequent to this she had been appointed as Acting Campus Manager from 1 May 2021 until the position was advertised.
- The Applicant took maternity leave effective from 1 January 2023 until 31 May 2023. During the period of absence or leave, the provisions of the Acting Appointment Policy will be applicable. Clause 4.9 of the Acting Appointment Policy reads as follows:
4.9.1 The acting appointment will be terminated if-
(a) the employee in the acting position goes on maternity leave.
- The Applicant returned from maternity leave on 1 June 2023. Prior to the maternity leave, the Applicant received R10 202,00 per month as acting allowance, however on return from maternity leave, she was paid R3 726, 00 per month for the acting allowance.

16. During the proceedings the following common cause facts were amended:
- The Applicant was appointed as Acting Campus Manager on 1 May 2021 and received R10 202.00 per month until 31 January 2023 as an acting allowance.
- The Applicant was on maternity leave from 1 February 2023 to 1 June 2023.
- The Applicant received R3 726.00 for the period 1 June 2023 to 31 October 2023 as the acting allowance had been reduced by the Respondent.

17. The issue in dispute is whether the Respondent committed an unfair labour practice by reducing the Applicant’s acting allowance as Acting Campus Manager on her return from maternity leave, and if so to order payment.

18. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

19. The Applicant, after being sworn in stated the following:
- That she had received a call from Lizelle informing her that she was reappointed as Acting Campus Manager and was asked for her DHET payslip as the acting allowance had to be recalculated.
- That at the end of June 2023 she only received R3 726.26.
- That she had queried this with Lizelle and was referred to HR.
- That she had queried the difference with HR and HR had kept referring to the policy.
- That she had received no clarity and eventually referred a grievance.
- That the grievance was not properly dealt with and she was informed by HR “the response has already been forwarded”.
- That she had signed to accept the Appointment (Bundle page 53) where she was appointed on Post Level 5.
- That she had received the letter (Bundle page 51) on 15 November 2023, although dated 23 October 2023, informing her of the amendment.
- That she had apparently been sent an appointment letter by HR, however did not receive this and requested it be forwarded again. This was never received.
- That there was no letter terminating her services or reappointing her.
- That her duties had not changed.

The Respondent’s Submissions

20. After being sworn in the Respondent’s witness, Mr L Blani – Assistant Director HRA and D, stated the following:
- That the Applicant had mentioned to him telephonically that she was going on maternity leave and he had informed her that she would not be receiving the acting allowance and of the changes in the policy if reappointed.
- That he had sent the Applicant the policy and had referred to the clause in the policy.
- That he was aware/saw the grievance, however the IR Manager had said the grievance cannot stand in terms of the policy.
- That on the return of the Applicant the acting allowance was reduced to adhere to the policy.
- That the new policy (Bundle page 44) was applied, as it was signed by the DG: DHET on 12 November 2021.
- That he had called the Applicant and informed her of the change in the policy.
- That he had responded to her objections/queries with regards to the reduction.


ANALYSIS OF THE EVIDENCE AND ARGUMENT

21. In the Constitution of the Republic of South Africa 1996 paragraph 23 (1) it clearly states: Everyone has the right to fair labour practices.

22. Section 186 (2) (a) of the LRA states:
“Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving - 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.”

23. It is trite that in Apollo Tyres South Africa (Pty) Ltd v CCMA & Others (2013) 34 ILJ 1120 (LAC) the court broadened the scope of benefits considerably when it held that the definition of a benefit, as contemplated in section 186 (2) (a) of the LRA was not confined to rights arising ex contractu (by virtue of the contract of employment or a collective agreement) or ex lege (the Public Service Act or any other applicable act), but included rights judicially created as well as advantages or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.

24. The Applicant’s main contention is that the Respondent committed an unfair labour practice by reducing her acting allowance on her return from maternity leave.

25. The DHET: Acting Appointments Policy signed on the 17 September 2019 states: TERMINATION OF ACTING APPOINTMENT: The acting appointment will be terminated if:
(6.1) an employee in the acting position goes on maternity leave; (Bundle page 36).

26. The Acting Policy signed by the DG: DHET on 12 November 2021 states: TERMINATION OF ACTING APPOINTMENT: (4.9.1) The acting appointment will be terminated if:
(a) An employee in the acting position goes on maternity leave; (Bundle page 47).

27. It is therefore evident that the Applicant’s acting appointment was terminated as per the above policies, although no letter was issued in this regard, and that the Applicant needed to be reappointed.

28. It is common cause that the Applicant was reappointed into the acting position although there seems to be no clarity as to how this happened and no letter of appointment was issued either, that was made available at these proceedings, to confirm this reappointment.

29. The Payment of Acting Allowance Policy Resolution 8 of 2001 Annexure A states: (2) An educator may only be appointed to act in a higher vacant and funded post that is one level higher than his/her current position. (Bundle page 19).

30. The Personnel Administrative Measures (PAM) document on Acting Allowance states: (C.4.1.3) An educator may only be appointed to act in a post that is one level higher than his/her current position. (Bundle page 21). This is re-iterated in the examples of how to calculate the acting allowances on page 22 of the bundle).

31. It however needs to be noted that at the time there was no employee at the Grahamstown campus on Post Level 3 to act in the Post Level 5 position and this is common cause between the parties.

32. The DHET: Acting Appointments Policy signed on 17 September 2019 states: Acting Appointment Criteria: (2.3.2) Employee shall only act on one level higher than his/her substantive post or a lateral post; (Bundle page 33).

33. The Acting Policy (Bundle page 37) signed by the DG: DHET on 12 November 2021 states: Acting Allowance Criteria: (4.3.2) (b) Employee shall only act on one level higher than his/her substantive post or in a lateral post. (Bundle page 44).

34. It is therefore evident from the above that the Applicant was initially appointed erroneously as an Acting Campus Manager on Post Level 5. With the reappointment of the Applicant to the Acting Campus Manager position on Post Level 3, the Respondent merely applied the policy.

35. The Respondent may not have sent out all the relevant correspondence during this period, which is not conducive to best HR practises, however this does not equate to an unfair labour practice. The Respondent has applied the policies correctly when reappointing the Applicant to the Acting Campus Manager position.

36. Based on the above, the submissions of the parties, and on the balance of probability, it is my finding that the Respondent has not committed an unfair labour practice by reducing the Applicant’s acting allowance as Acting Campus Manager on her return from maternity leave.

37. I therefore make the following award.

AWARD

38. The Respondent, Eastcape Midlands TVET College, has not committed and unfair labour practice by reducing the Applicant, N Magopeni – Persal N 54915571, acting allowance as Acting Campus Manager on her return from maternity leave.

Panellist: AW Howden
ELRC