ELRC903-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC903-22/23EC

In the matter between

NUPSAW & SADTU obo SANGOTSHA, ABIGAIL
& 5 OTHERS Applicants

and

EASTCAPE MIDLANDS COLLEGE Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 3 MAY 2024

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) - unfair conduct relating to demotion.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(v) of the Labour Relations Act 66, 1995, (the LRA). The arbitration was heard on 5 May 2023, 30 June 2023, 4 September 2023, 28 - 29 November 2023, and finalised on 16 -17 April 2024, at the Respondent’s premises in Kariega. The Applicants, Ms Abigail Sangotsha, Ms Nomhle Masebeni, Ms Thabisa Ntantala and Mr Desmond Smith were represented by Mr Sangolinye Ngqungwana, an official of NUPSAW. Messrs Zolani Ngqaqa and Mncedisi Bob, were represented by Ms Qwane, a member of SADTU. The Respondent, Eastcape Midlands College, was represented by Mr Lungisa Mpati, the Director: Labour Relations.

2. The parties agreed to submit written closing arguments by no later than 24 April 2024 and both parties complied, to which NUPSAW and the Respondent complied. Arguments in respect of SADTU were received on 30 April 2024, submitted on 25 April 2024 to the ELRC.

3. The proceedings were electronically recorded.

BACKGROUND TO THE ISSUES

4. The Applicants were employed by the Respondent on successive fixed-term contracts as Post Level 1 Lecturers. The following table shows the salaries earned before the contract in dispute and salaries earned in the January 2023 contract:


Previous salary Salary January 2023
N. Masebeni - R17 644.25
A. Sangotsha - R17 644.25
D. Smith - R17 644.25
N. Ntantala - R23 336. 50
M. Bob -
Z. Ngqaqa - R11067.75
R11067.75
R11 233. 80
R14 638. 20
R15 000
R11067.75

5. In January 2023 their contracts were renewed on less favourable terms in that the salaries dropped drastically for the contracts covering the first trimester. It is this issue that they believe constitutes a demotion.

6. The Applicants seek, as a remedy, payment of the difference in salary from 25 January 2023 to — as per previous contracts.

SURVEY OF EVIDENCE AND ARGUMENT
Applicants’ Version

7. The version of the Applicants was led through the evidence of 4 witnesses and a bundle of documents, the summary of which is outlined below:

8. Mr Mncedisi Bob, testified that their salaries and working hours were reduced in the trimester in question - January to April 2023. The hours were reduced to 1 hour per period and had the same 4 subjects he taught before and hours before were 1h30 minutes per period. The contracts spoke of contact hours which means only student interaction and no administration hours. They continue to work the 1 hour per period and salaries were corrected after that trimester. They only learned of these changes on payment of salaries when the discovered a short payment and contracts came a week later.

9. Upon receiving the contracts they asked to be addressed and they were addressed 3 days later and told that their contracts would remain as such. They were negatively affected by the decision whilst expected to work and had to take loans to make ends meet. A huge gap in their income was caused as his son had to drop out of school, having lost almost R10 000 in salary. They received no support from the Respondent. They require reimbursement of monies lost in the first trimester of 2023.

10. Mr Zolani Ngqaqa testified that in January 2023 they started work on 25 January 2023 and got their salaries on the 31st. He was paid R3 500. 00. They received contracts to sign and were only shown the duration of the contract and the remuneration, where everything changed. They went on a go slow wanting management to explain the changes. He confirmed that they seek payment of the salaries they should have received in terms of previous contracts. They worked 15 hours per week and did 3 hours per day. The explanation they received was that they were paid for hours worked, excluding hours spent on administration and setting of tests.

11. They collectively engaged with management and refused to sign the contracts, and there was no fair consultation process. The changes impacted on their budgets and the families they support. They are supposed to be allocated 35 hours per week with 22.5 hours to teach and the rest for admin and setting of tests. He testified that he started working for the Respondent from September 2020. They still had to teach, set tests, mark within the reduced time. In the second trimester they went back to the previous salaries but they taught for 1 hour instead of the previous 1h30 minutes.

12. In signing the new less favourable contracts they indicated that they were signing under duress as they were told that if they do not sign the employer will not be responsible for them.

13. Ms Abigail Sangotsha testified that she had been on successive fixed-term contracts for 9 years. The January 2023 contract was different. There were changes in terms of teaching time, salary, but same responsibilities. They still had to do administration outside teaching time. On 21 January 2023 they were called by Mr Twala, they started work without contracts. On payday they discovered a shortage in salary. Contracts were given after payday and Mr Mpati explained the changes. Ms Sangotsha told them they can only teach and do administration work. Mr Twala told them they are supposed to do everything but she reiterated that she can only teach.

14. They refused to sign the contracts because of the difference and were sent emails wherein their employment was threatened or that they would be forced to cancel the contracts. They were forced to involve the community (the ANC). They were advised to sign and indicate they are signing under duress. The duration of the contract was 25 January 2023 to 30 April 2024. They were forced to sign with the intervention of the ANC.
15. In terms of the new contract they had to work 15 contact hours per week. The Applicants gave the employer representatives the PAM document and that she was to be paid at REQV14. They also work according to syllabus guide and were supposed to work 22.5 hours according to the PAM document and no changes had to be made. They were told that the decision is based on workload and they would remove administration work, they would only teach and it is impossible to exclude administration work and were still required to perform administration work. She was pressurised to set papers by her Senior Lecturer. She followed up and ended up marking and submitting. The hours were reduced from 1h30 minutes to 1 hour for all her 3 subjects. She was supposed to work 22.5 hours. She taught for 6 hours per day making 30 hours per week.

16. Ms Sangotsha testified that her salary was R17 644.25 and explained that their salaries were different because of qualifications. All her previous contracts were the same and she believes that she is permanent, she got the same contract and same work as a permanent person. There is no reason justifying the fixed term.

17. Ms Masebeni led similar evidence to Ms Sangotsha and stated that she started working for the Respondent in 2018. She stated that there was no consultation regarding the changes to the terms of their employment contracts. No tangible answers were given in terms of the changing of time. There was also no consultation in respect of these changes. She stated that she believes that her salary must be determined in terms of her qualifications and be at REQV-13.

18. The 35 hours required are used in everything in the scope of an educator to:
a. Teach;
b. Set papers;
c. Mark the register;
d. Preparation;
e. Marking; and
f. Submitting marks.
19. The new contract required them to work 15 hours per week and there is no difference to other additional work as they were required to perform as they cannot teach without preparing, assessments, marking and giving feedback. They signed under duress and indicated that sentiment at the bottom of their contracts in writing. The salaries were reduced but the responsibilities remained the same.

20. Ms Thabisa Ntantala testified that she started as a Lecturer in September 2020 as a contract worker and her contracts were renewed continuously. In January they are usually called and they waited for the call as promised by Campus Manager. On 19 January 2023 they were called and told to return the following week. At the end of the month she was paid about R3000 and at the time they had not signed contracts as they usually sign later.

21. Ms Ntantala’s evidence was identical to that of the other witnesses.

Respondent’s version

22. The Respondent’s version was led through the evidence of two witnesses and a bundle of documents: -

23. Mr Mthetheleli Twala (Mr Twala) testified that he is the Campus Manager at Charles Goodyear Campus. He confirmed that in January 2023 the Respondent took a decision to allocate workload to the maximum, meaning from 3 groups to 5 groups at the duration of 1 hour per period. After the decision they allocated to permanent staff first and whatever was left out to be allocated to contract lecturers.

24. He stated that subject allocation is done through departments, e.g. the automotive department. The Senior Lecturers sit with Campus Management Team (CMT). If contracts are terminated he does not feature in that space. When they plan they do consultation with departmental managers and if contracts are terminated in December, then one would have no work in January. New communication would be done to present/staff and consultation would have been done the previous year.

25. He referred to Collective Agreement No.1 of 2013 - Generic Contract of Employment for Post Level 1 Lecturers Appointed in the Public Further Education and Training Colleges, Clause 3 that deals with Scheduled Contact Hours, which provides at 3.3:

“Where classes are so arranged that a member of the lecturing staff does not meet the required hours per week of actual contact time, determined in terms of paragraph 4, he/she may, in respect of the shortfall, be required to lecture to any class for part-time students attached to such college without receiving additional remuneration therefore. This must be done through consultation and a fair, transparent and equitable manner”.

26. He stated that his understanding of the provisions mentioned above is that if allocation does not meet the requirements, a shortfall must be made up with part-time classes for one to meet the quota. In the first trimester of 2023 there were no part time classes. The paragraph is applicable to permanent staff. This matter is based on a trimester project, once students write examinations, the project is terminated as the academic year ends at the end of the trimester.

27. Collective Agreement 1/2013 provides at Note 1 that actual contact hours on post level 1 should be between 22.5 hours and 25 hours per week, in terms of which Post Level 1 hours per week is 22.5 hours per week. The Respondent decided to apply the maximum 25 hours per week.

28. In terms of Abigail Sangotsha’s contract, she was required to work 15 hours per week, according to the group she was allocated. He maintained that the Collective Agreement applies to permanent staff as they start to allocate them and then give to contract staff what is left out. The workload determines the hours and further the student numbers on a ratio of 1:30. If there are no students there is no need of having a contract. In his view the decision was rational and they spent 4 -5 days discussing it, they therefore applied their minds. The decision was fair and informed by information at their disposal.

29. Ms Zakithi Dlamini, the Deputy Principal: Academic Services provided a background that every academic year, semester or trimester, the college receives funding from the Department of Higher Education & Training for enrolment, depending on the number of enrolments, which would translate to the number of lecturers to be employed. There are permanent lecturers employed by the department and are paid from Persal. There are permanent lecturers employed by the Council of the college (the Council) and are paid by the College. There are those on contracts (fixed-term) employed by the Council.

30. At the end of an academic year the contract lecturers are given notice. In 2022 there were such lecturers and were given notices. In the beginning of the year planning is done and finalised. Once funding is received and numbers (enrolment) are confirmed, then a number of lecturers is allocated. In the previous trimester they had more lecturers and had to determine the number of lecturers. There are contracts that were renewed and some not renewed.

31. She testified that the less favourable terms were guided by the Collective Agreement and PAM document when they determine hours of work, based on the 25 hours at campus and teaching hours. The Charles Goodyear Campus does Report 191 from N1 to N6. The Council informed them that there are lecturers who could not get full quota (25 hours). The Respondent found itself having those who could teach 10 hours per week.

32. Ms Dlamini stated that there were no part-time classes at the time. Permanent lecturers have a full quota and they are considered first, as well as the permanent Council employed lecturers and lastly the Council paid temporary lecturers. A lecturer is expected to work 22.5 hours to 25 hours per week. The Applicants therefore did not meet the minimum number of hours required per week.

ANALYSIS OF EVIDENCE AND ARGUMENT

33. Section 185 of the LRA provides that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices. This section gives effect to section 23 of the Constitution of the Republic of South Africa. The dispute referred is an unfair labour practice relating to demotion and the employee bears the onus of proof.

34. In this matter it is common cause that the Applicants entered into successive fixed-term contracts with the Respondent as Post Level 1 Lecturers. It is their contention that the renewal in the contract of 25 January 2023 to 30 April 2023, on less favourable terms, constitutes a demotion.

35. In this matter the Applicants contend that there was no consultation in respect of the changes in their contracts as they were called in to work and signed contracts later. They further state that they engaged the Respondent upon noticing the salaries that were less than what they used to get in January and sought answers as to what the problem was. They say they did not get a tangible answer and thereafter they were presented with contracts that contained less favourable terms.

36. It is the Respondent’s defence that the campus (Charles Goodyear) in which the Applicant’s worked work on Report 191. That Report 191 is project based as it is based on enrolments and funding received, which then informs the number of lecturers required. This evidence is not disputed, that is the project based nature of the work performed by their campus.

37. In this matter the Applicants were not provided less favourable terms mid-contract. They were offered a contract of employment with the terms required by the Respondent and the offer was accepted, even if they say under duress, and the terms and conditions were implemented. The reasons provided by the Respondent that employment of contract lecturers is informed by the number of enrolments and must give full quota to permanent staff.

38. The contracts were entered into in terms of relevant legislation, the Basic Conditions of Employment Act, the Labour Relations Act and the Further Education & Training Colleges Act. It was not disputed that the Respondent has a system of allocating work that prioritises permanent staff of the department and permanent staff of the college. If the enrolments allow for contract staff to be employed, only then they would be considered based on the operational requirements of the Respondent.

39. The Applicants argued that an unfair labour practice can arise through a reduction in salary as per SAPS v Salukazana and others (P284/09) [2010] ZALAC 25. The Applicants were given notices at the end of 2022 and were called back in January 2023 and signed new contracts that provided new terms and conditions for the period they were contracted. The terms and conditions of employment were accepted, as offered by the Respondent. This was a new contract of employment with new terms and made no reference to previous contracts as the needs of the time dictated how the terms should be. It is stated by the Respondents’ witnesses that the reduced hours of work were a means to avoid termination of the Applicants’ contracts.

40. On the argument relating to operational requirements and the Respondent’s failure to comply with procedural requirements outlined in section 189 of the LRA, there was no dismissal based on operational requirements where the Respondent would have been required to consult the affected employees. The Applicants were on project based contracts that came to an end and renewed. There was no restructuring that would inform consultation as per section 189. In view of this argument the dispute would have to be referred in terms of section 189 and not be hidden behind a demotion under section 186(2) of the LRA.

41. Again on the argument relating to the provisions of section 198C of the LRA, no referral in terms of section 198D of the LRA to argue the lack of reasons that justify fixing the terms as well as issues around less favourable treatment compared to permanent employees of the Respondent as well as the fact that the contracts became indefinite by operation of law. Such an argument is fit for a specific dispute in terms of section 198D of the LRA and can therefore not be sustained under an unfair labour practice dispute.

42. Collective Agreement 1/2010 provides, in its scope at 2.4 that it applies and binds all office-based lecturers (lecturers with no contact time), appointed and remunerated by colleges and utilized in the same way as transferred lecturers referred to in paragraph 2.3 above, whether such employees are members of trade union parties to this agreement or not. It does not refer to Council contract employees.

43. That the reduction of salaries was unfair can only, at this point, relate to how it affected the Applicants and is based on their perspective and effect on their financial needs. There is no bar for the Council of the College to determine salaries of their staff in the manner they deem fit.

44. The arguments by SADTU that the salary reduction constitutes a unilateral change to terms and conditions of employment directs the enquiry to section 64 of the LRA which is a strikable dispute. That the pro rata salary payment for January 2023 was in breach of Collective Agreement 1/2013, cannot be sustained in that the said collective agreement does not apply to the Applicants as Council contract employees. The negative impact that the reduction caused to Applicants cannot be downplayed, indeed they were negatively affected particularly because it was unexpected, but this does not make it a demotion. The Respondent’s argument is that they were paid according to the volume of work available at the time.

45. The Further Education & Training Colleges Act 16 of 2006, in the College Statute establishes the Council and it has powers to appoint lecturers and support staff. Section 33 of the College Statute provides that the advertising of the post, the invitation for nomination of candidates, the search for suitable candidates, criteria for shortlisting of candidates and the interviewing of candidates and appointment processes for lecturers, support staff and financial officers must be in the manner determined by the Council.

46. Section 34 of the College Statute provides that the Council must approve conditions of employment, including the determination and review of salaries of lecturers and support staff and all other forms of remuneration in accordance with the rules.

47. In this matter the Council took all decisions that it is empowered to take in regulating the terms and conditions of employees of the College and offered contracts to the Applicants in the manner it was decided, and salaries reviewed in terms of the statute. The offer of new contracts with different terms and conditions was made and was accepted by the Applicants. The terms and conditions were not altered during the life of the contract but came at the initiation stage, the nature of the contract being project-based as per Report 191.

48. Demotion means a reduction or diminution of dignity, importance, responsibility, power or status even if salary and attendant benefits and rank are retained. In this matter the Applicants entered into new contracts of employment on different circumstances for the Respondent that of changing the system of allocating work by giving a full quota for permanent staff. Excess work was then distributed to contract employees to avoid unemployment for the Applicants.

49. Such conduct does not constitute demotion as the Applicants in January were not occupying positions until they entered into new contracts of employment. I therefore find that the Applicant failed to discharge the onus to prove that the conduct of the Respondent amounted to a demotion.

50. In the circumstances, I make the following award:

AWARD

51. The conduct of the Respondent, East Cape Midlands College, in offering less favourable terms and conditions of employment, does not constitute a demotion.

52. The Applicants, Ms Abigail Sangotsha, Ms Nomhle Masebeni, Ms Thabisa Ntantala, Mr Desmond Smith, Zolani Ngqaqa and Mncedisi Bob are not entitled to any relief.


PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL