ELRC460-23/24NW

Commissioner: D Smith
Case No.: ELRC460-23/24NW Date of Award: 24 December 2023

In the ARBITRATION between:

LEGAE, O
(Union / Applicant)

and


DEPARTMENT OF HIGHER EDUCATION AND TRAINING
(Respondent)

Union/Applicant’s representative: Self

Respondent’s representative: Mr. Sello Mophaki


DETAILS OF HEARING AND REPRESENTATION:

1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 186(1)(a) of the Labour Relations Act, No. 66 of 1995 (“LRA”).

2. The Applicant, Mr. O Legae (Legae) represented himself. The Respondent was represented Mr. Mophaki (Mophaki), its SES: Disputes.

3. The process was digitally recorded, and I took handwritten notes.

4. Kruger submitted a bundle of documents marked A.

5. The parties agreed to submit written arguments by 14 December 2023.

ISSUE TO BE DECIDED:

6. Whether the Respondent committed unfair conduct in relation to training in terms of Section 186 of the LRA.

7. If I find in the positive, I must decide upon an appropriate remedy.

BACKGROUND:

8. Legae is employed as a lecturer in business studies at the TVET college in Rustenburg.

REMEDY

9. Legae sought:

9.1. Full reimbursement of the UFS MBA tuition fees amounting to R 160 935.00;

9.2. A commitment from Taletso TVET College to uphold its policies and regulations regarding professional development and equal opportunities for all employees; and

9.3. An apology from the college for the unfair treatment he had received.

SURVEY OF EVIDENCE AND ARGUMENT:

10. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.

APPLICANT’S VERSION

11. Legae testified under oath that:

11.1. At the beginning of 2023 he applied for study assistance with an advanced diploma. His application was declined but other employees’ applications were successful.

11.2. He was excluded from a Huawei training program on 1 August 2023.

12. In cross-examination he testified that a colleague, Matilane, went on the August 2023 training. He was an administration clerk.

13. Legae submitted in closing argument:

13.1. Since he joined the Respondent, he had completed his Postgraduate Certificate in Education (PGCE). He paid for this himself and was later reimbursed R 20 000.00.

13.2. At the end of 2021 he enquired about availability of funds to further his education. He was advised by Mr. Mojafi that there were no funds available. He enrolled at the University of the Free State (UFS) in 2022 and paid for his own tuition. He passed 95% of his modules but was finding it difficult to cope financially. Financial assistance would help. Some of his findings were based on the college.

13.3. He wanted to believe that the college, as it is governed by policies such as CET which emphasizes the importance of continuous professional development for lecturers and recommends a five-year plan to strengthen their skills and knowledge.

13.4. SACE emphasizes the importance of professional development for educators.

13.5. DHET puts in place a framework that outlines its vision for a high-quality teacher education system that equips educators with the knowledge, skills and values needed to effectively lead and inspire learners, covering both initial professional education (IPET) and continuing professional teacher development (CPTD).

13.6. During 2022 colleagues were offered an opportunity to study at Tshwane University of Technology (TUT) for an Advanced Diploma in TVET which was paid for by the Respondent. He had received an acceptance letter from TUT to register for the diploma. He discussed this with a Ms. Tshetlo, the person responsible for the TUT program, who told him that he could not enroll as it was two-year program, and the next group would be after the current group graduated at the end of 2023. He learnt that other lecturers, Messrs. O Mopharing and A Kgoa had enrolled, and the Respondent paid for their tuition for 2023. He then requested financial assistance for his MBA from the campus manager, Mr. Molatlhegi, who forwarded it to senior management on 3 May 2023. No feedback was received.

13.7. On 13 July 2023 Huawei instructors were invited to participate in an instructor training program from 24 July to 4 August 2023. He declared his interest as he was also a Huawei instructor. And held 5G and internet Security certificates. He was overlooked. A further workshop was held from 11 to 22 September 2023. He was again denied the opportunity to attend whereas a Ms. Kgobe, an administrative clerk, attended. She also attended other training from 19 to 28 June 2023.

13.8. By denying him training and financial assistance the Respondent failed to comply with its own policies and regulations, and national guidelines.

Reply

14. Legae replied:

Whether training was refused?

14.1. While the Respondent’s correspondence never expressly refused training, they overlooked him after he had expressed interest. His queries in respect of the Huawei program were not replied to. He was excluded without explanation.

14.2. His request to register for TUT faced unjustified delays and was eventually denied based on the program duration. Other employees with no difference in qualifications were allowed to enroll.

14.3. This constituted a clear pattern of deliberate non-cooperation and exclusion amounting to an effective refusal of training opportunities.

Was the refusal to offer training unfair?

14.4. The Respondent’s explanation for not including him in the Huawei workshop because he was not an IT lecturer was disingenuous. Professional development opportunities can and should extend beyond an employee’s area of specialization. Expanding skill sets benefits both the employer and employee. His interest in the program was to enhance his technical knowledge and to contribute to future IT offerings at the college.

14.5. His qualifications, being BCom, BCom (Hons) and PGCE demonstrate his academic foundation and teaching expertise and aligned with the program goals.

14.6. The Respondent’s claim that the TUT program was only for underqualified lecturers was untrue as several qualified colleagues, including Messrs. Molebatsi and Tshetlhanyane are enrolled on the program. This showed discriminatory treatment. TUT specializes in TVET and not FET.
14.7. The claim that he had only indicated an interest in farm management in his IQMS was baseless. He never limited his aspirations to that field. The Advanced Diploma in TVET was relevant and necessary to his professional development.

14.8. The Huawei program only required the Respondent to provide accommodation. Its completion would provide various benefits to the college.

14.9. AD paragraphs 14-16: The Respondent acknowledged that it committed an unfair labour practice in that it made a deliberate decision to exclude him and send a receptionist on training rather than an academic lecturer. “Unless there are plans to enrol the receptionist for a teaching course (which I already possess) no sound reason exists for my exclusion. I can only speculate that my involvement in the leadership of a trade union played a part.”

14.10. The receptionist assisted in teaching Introduction to Computers in previous years when there was a shortage of staff but without a teaching qualification.

14.11. AD paragraphs 11 and 12: The Respondent acknowledged an expectation that lecturer’s, despite personal financial responsibility, pay their own tuition and thereafter apply to the HRD for reimbursement. He was currently registered for an MBA.

14.12. AD paragraph 13: He attempted to resolve the issues by following all the internal procedures in good faith.

14.13. The Respondent’s submissions were dated 16 December and were only submitted on 18 December 2023.


RESPONDENT’S VERSION

15. Mokhati submitted that:

15.1. The Respondent is a juristic person created in terms of the Further Education and Training, Act 98 of 1998, which was later repealed by the Continuing Education and Training Act, 16 of 2006.

15.2. In 2013, the then Acting Minister of Higher Education and Training, the Honorable Mr Thembelani Waltermade Nxesi, MP, after consulting the Council on Higher Education, determined a National Policy on Professional Qualifications for Lecturers in Technical and Vocational Education and Training in terms of section 3 of the Higher Education Act, 1997 (Act No. 101 of 1997), read with section 8(2)(b) of the National Qualification Framework Act 2008 (Act No. 67 of 2008).

15.3. This policy aligned qualifications for technical and vocational education and training lecturers with the Higher Education Qualifications Sub-Framework (as revised), 2013, published in Notice No. 1040 of 2012, Government Gazette No. 36003 of 14 December 2012, and it replaces all former professional qualifications approved for employment in Further Education and Training colleges.

15.4. Limited funding is provided to TVET Colleges for the funding of the training of lecturers who are not professionally qualified. Lecturers who are not professionally qualified are those who only have academic qualifications such as BCom or BCom Honors and N6’s and have no qualifications in education such as Postgraduate Certificate in Education. Legae possesses such a qualification and was reimbursed by the Respondent in accordance with the policy

15.5. The Respondent employs approximately 200 lecturers of which 75 percent are not professionally qualified. Legae is professionally qualified.

15.6. In his grievance papers Legae alleged that the HRD Manager refused to provide training to him. However, even though Legae is professionally qualified, the HRD manager sought, in her capacity as the employee responsible for the training and development of employees of the Respondent, sought approval for the funding of the TUT training for Legae and another two lecturers towards the end of 2022. The other two lecturers applied and paid for their registration at TUT while awaiting the approval of the application the HRD Manager had made on their behalf. By the time the Accounting Officer approved the application for the funding of their studies at TUT, TUT had already closed for the applications and registrations. Consequently, the Respondent did not refuse to pay for Legae’s studies at TUT - approval only came after registrations had closed at TUT.

15.7. The TUT issue arose very early in 2023 and therefore, was referred outside of the 90-day time limit. Therefore, the bargaining council has no jurisdiction to arbitrate the complaint about training or studies at TUT.

15.8. In respect of Huawei training, Legae does not lecture Information Technology and the two lecturers that he is comparing himself with do. Legae averred that it was out of personal interest that he desired to undergo Huawei training.

15.9. Training is a systematic and planned process to change the knowledge, skills, and behavior of employees in such a way that organizational objectives are achieved. Training is task-oriented in that it focuses on the “work” performed in an enterprise. Training standards for a specific job are primarily derived from the job description/task requirements of a particular job. Training is therefore directed at improving the employees’ job performance in an enterprise. This is why in 2013, the then Acting Minister of Higher Education and Training, after consulting the Council on Higher Education, determined a National Policy on Professional Qualifications for Lecturers in Technical and Vocational Education and Training in terms of section 3 of the Higher Education Act, 1997 (Act No. 101 of 1997), read with section 8(2)(b) of the National Qualification Framework Act 2008 (Act No. 67 of 2008).

15.10. Training is usually offered when current work standards are not maintained, and when this situation can be ascribed to a lack of knowledge and/or skills and/or poor attitudes among individual employees or groups in an enterprise. The Huawei training was not going to address any of that the and therefore the Respondent could not have committed an unfair labour practice.

Whether training is a benefit?

15.11. It was never the case of Legae nor the Respondent that training was either a benefit or not. However, it is pertinent to mention that in Apollo Tyres South Africa (Pty) Ltd v CCMA and others (2013) 34 ILJ 1120 (LAC) (“Apollo Tyres”), the Court held that the definition of benefit, as contemplated in section 186(2)(a) of the LRA was not confined to rights arising ex contractu or ex lege, but included rights judicially created as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.

Whether training was refused?

15.12. None of the emails Legae included in his argument showed that the Respondent ever refused to grant training to the Applicant.

Was the refusal to offer training unfair?

15.13. Even if the Respondent had refused to offer Huawei training and TUT studies to Legae, that refusal would not have amounted to an unfair labour practice because of two critical factors: (a) Legae is not an IT lecturer and (b) on his own evidence, Huawei training was only out of personal interest.

15.14. There was no need to enroll Legae for TUT training because it is for underqualified lecturers.


15.15. In respect of the MBA fees that Legae raised in his written closing argument, it was clear from his IQMS that he only wanted training in farm management.


16. An established training program for TVET College Lecturers is to make sure that they are professionally qualified and not only academically qualified, and it is the evidence of Legae that he is professionally qualified.

17. For reasons that will appear below it is necessary to quote: “It is pertinent to mention that, with his qualifications, the Applicant is even more qualified than some of the TVET Colleges Campus Managers in the country. The Applicant is a PL 1 lecturer and PL 2 lecturers up to PL 5 are senior to him. The minimum requirements for a PL 2 lecturer to PL 5 are an appropriate National Diploma/Degree in education or equivalent with a minimum of REQV 13. The Applicant has a BCom Hons degree and a Postgraduate Certificate in Education, which means, with the right attitude and sufficient work experience, if he applies for a promotional position in any of the more than 50 TVET Colleges in the country, he might become successful.

18. The deduction an individual could make from the many emails the Applicant has appended to his written closing argument is that he is the type of an employee who is only hell-bent to create a toxic work environment. It is clear from the many emails that he has attached to his written arguments that he is the type of an employee who will never be happy.”
ANALYSIS OF EVIDENCE AND ARGUMENT:

19. Legae argued that the Respondent committed unfair conduct in three ways:

UFS MBA

19.1. On his own version Legae has not yet completed his MBA. There is no evidence of a formal application to be reimbursed for payments thus far. Consequently, the Respondent could not have committed unfair conduct. Any dispute in this regard is premature.

TUT

19.2. Legae’s version was: “During 2022 colleagues were offered an opportunity to study at TUT for an Advanced Diploma in TVET which was paid for by the Respondent. He had received an acceptance letter from TUT to register for the diploma. He discussed this with a Ms. Tshetlo, the person responsible for the TUT program, who told him that he could not enroll as it was two-year program, and the next group would be after the current group graduated at the end of 2023. He learnt that other lecturers, Messrs. O Mopharing and A Kgoa had enrolled, and the Respondent paid for their tuition for 2023. He then requested financial assistance for his MBA from the campus manager, Mr. Molatlhegi, who forwarded it to senior management on 3 May 2023. No feedback was received.”

19.3. It is unclear, what if any unfair conduct was committed by the Respondent or even whether a valid dispute existed. If the dispute arose in 2022 it is out of time and condonation would be required for the Council to arbitrate it. The difference between Legae and the comparators is that they had enrolled for the program and were subsequently offered reimbursement. Legae did not do so. He was never denied the opportunity to register.

Huawei
19.4. In Eskom v Marshall and others [2003] 1 BLLR 12 (LC) the Court held that when an employer frustrates an employee’s legitimate expectation of receiving training in terms of an established training program presented by the employer or on behalf of the employer it may constitute an unfair labour practice. Legae has not establish any contractual right that would require the Respondent to place him on the program.

19.5. In MITUSA and others v Transnet Ltd and others (PA 5/01) [2002] BLLR 1023 (LAC) the Court dealt with a dispute that arose between the employees and employer concerning the obligations, if any, of the employer to, as it was put by the employees, afford them training necessary for them to acquire a qualification known as the Standard Training Certificate for Watchkeeping. The employees alleged that the employer was contractually obliged to afford them the said training but was refusing to do so. The employer disputed the alleged contractual obligation, stating that in any event it had provided them with training that enabled them to qualify for the job that they had been employed to do and there was no warrant for it to incur large costs that would go with the said training. The employees claimed that the employer’s conduct in this regard constituted an unfair labour practice and sought that the employer be compelled to afford them training they sought that such masters were required by law to have. The Court held that a reasonable expectation claimed by the employees could not be “transformed” into a term and condition of service as it did not create a right, and as such there was no right to specific training, as the training benefit was not included in the employment contract but in Circular 10 which did not state anything about the condition on which the training would have been provided, the nature of such training or when it would have been offered.
In his reply gives, in my view, the true nature of the dispute: “Unless there are plans to enrol the receptionist for a teaching course (which I already possess) no sound reason exists for my exclusion. I can only speculate that my involvement in the leadership of a trade union played a part.”

19.6. The Council lacks the jurisdiction to arbitrate such a dispute and Legae should apply to the Labour Court.
FINDING

20. Legae has not discharged the onus to prove that the Respondent committed unfair conduct in respect of the three issues complained of.



AWARD

21. The Respondent did not commit unfair conduct.

22. The matter is, therefore, dismissed.


D H Smith

ELRC PANELIST
24 December 2023