ELRC838-23/24LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT BURGERSFORT

Case No. ELRC838-23/24LP
Date: 23 June 2024

In the matter between

MALEPE MAKGATSA RICHARD Applicant

And

DEPARTMENT OF EDUCATION - LIMPOPO Respondent

ARBITRATION AWARD

Details of hearing and representation


1. This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearings took place at the Department of Education, Polokwane, and Burgersfort, Limpopo Province on 30 April and 07 June 2024 at 9:00AM respectively. The Applicant, Malepe Makgasa Richard initially represented himself and later by Advocate Molapo M.J from Pretoria Bar, instructed by M.A Ramolotsha Incorporated Attorneys, while the Respondent, Department of Education - Limpopo was initially represented by Msibi Sibongile and later by Portia Modipa, one of its officials. The proceedings were digitally voice recorded and conducted in English. The parties handed in bundles of documents and Applicant’s bundle was marked Bundle A, while the Respondent’s bundle was Bundle R.

Nature of the dispute

2. The dispute was about the Applicant’s alleged unfair labour practice related to benefits. The Applicant is alleging that the Respondent’s failure to pay him an acting allowance from 01 January to 31 October 2023 constituted an unfair labour practice related to benefits.

Issues to be decided.

3. I must decide whether the failure by the Respondent to pay the Applicant an acting allowance from 01 January to 31 October 2023 constitutes an unfair labour practice or not. I must determine appropriate relief if it is found that the conduct of the Respondent was unfair.

Background to the dispute

4. The Applicant is currently employed by the Respondent as CS1 Educator at Moukangoe Secondary School under Bogwasha Circuit, Sekhukhune East District. He is earning a salary of R22 715.75 per month. The Applicant was paid an acting allowance from 01 November 2023 up until 31 March 2024.

Survey of the Applicant’s evidence and argument

One witness, the Applicant himself testified. Malepe Makgasa Richard testified under oath and in English that:

5. He applied for acting as principal of Moukangoe Secondary School by completing the prescribed forms on 09 January 2023. The Circuit and District Managers recommended for his appointment to act as principal. They did not approve the acting appointment. His application was forwarded to the Head of Department by the district in April 2023. The document on page 11 of Bundle R dated 14 June 2023 was from the Director: HRA & Services directed to the District Director: Sekhukhune East District. His application was declined by the Director: HRA & Services and not the Head of Department. He was recommended to act as principal from 01 January to 31 October 2023. He was informed by the District Director that he could not act as principal of Moukangoe Secondary School. Nobody was appointed to act as principal of Moukangoe Secondary School while the district was waiting for the Head of Department to approve the appointment. It was correct that from 01 January to 31 October 2023 there was no approval for him to act as principal. He acted as principal on his own volition.

6. The District Director submitted another recommendation for him to act as principal to the Head of Department. This recommendation was for the second time and from the 01 November 2023 to 31 March 2024. This time he received approval to act as principal in November 2023. He agreed that he could only act as principal after the approval and the Head of Department approved his acting from 01 November 2023 to 31 March 2024. The Head of Department did not give reason for not backdating his acting term.

7. During cross examination, he testified that he agreed that Director: HRA & Services, Mr. Lebepe AN was delegated with authority. He was furnished with the decline communique and understood it to be saying his application to act as principal from 01 January to 31 October 2023 was declined. After it was declined, he continued to act because there was no one appointed to do the responsibilities of a principal. He was not appointed to act from 01 January to 31 October 2023. The Respondent’s conduct was unfair because he was executing the responsibilities of a principal. The School Governing Body (SGB) did not have powers to appoint him but to recommend. He agrees with the reason advanced by the letter declining his appointment to act. He agreed that he acted without the appointment letter. As a leader he could not have left the school without principal and that was the reason he continued to act even after he received the letter declining his application.

Survey of the Respondent’s evidence and argument

Two witnesses testified for the Respondent. The first witness was Sepadi Solomon Makotanyane. Sepadi Solomon Makotanyane testified under oath and in English that:

8. In terms of the procedure for the appointment of an acting person, when a person occupying the highest post leave, the most senior person at that institution is the one recommended for appointment. The SGB, the Circuit Manager and the District Manager would make recommendation to the Head of Department or his/her delegate to approve. The SGB recommended the Applicant to be the acting principal of Moukangoe Secondary School. He further recommended the Applicant to the District Director. After some time, the District Director verbally responded to his recommendation by indicating that he should look for Deputy Principals who were additional to other schools. The letter on page 12 of Bundle R came after some time and they requested the District Director to assist in looking for a pool of Deputy Principals because there was no additional Deputy Principals in his circuit. The District Director did not submit any Deputy Principal who was in additional post.

9. He then spoke to the District Director about getting someone to act as principal at Moukangoe Secondary School. The Applicant was caretaking and assisted by school heads of departments. The Applicant was performing the duties of a principal awaiting an acting approval. The Applicant never had an approval to act as principal from January to October 2023. A person is paid an acting allowance if that person acts for more than six (6) weeks. The Applicant was not appointed to act from January to October 2023 and they were not expecting payment of acting allowance thereof. The Applicant was approved to act from 01 November 2023 to 31 March 2024.

10. During cross examination, he testified that the caretaker could not be blamed if he abandons the responsibilities of the school principal because there was no formal arrangement that binds him (Applicant). He supported that the Applicant could not be paid an acting allowance from January to October 2023. The second senior person at the school was Maila who declined to be appointed acting principal of Moukangoe Secondary School. The Applicant was given forms to complete. The Applicant was not acting because there was no approval. The payment of acting allowance could not be backdated without the approval.

The second witness of the Respondent was Phasha Mamongalo Sydwell. Phasha Mamongalo Sydwell testified under oath and in English that:

11. He was appointed as a Deputy Director: Corporate Services since July 2023. His duties include Human Resources Utilization amongst other things. It was the responsibility of the SGB to recommend a person for acting capacity in a school. The recommendations would be forwarded to the circuit offices and the circuit further forwarded those recommendations to them (District Office). The delegation for the appointment of the Applicant to act as a principal lied with the Head of Department because the Applicant was a CS1 Educator, while the post was P3 school principal. The Applicant was recommended for appointment as an acting principal of Moukangoe Secondary School. Approval was granted for the Applicant to act with effect from 01 November 2023 up until 31 March 2024. The Applicant could not be paid for any other period before the approval.

12. The letter on page 11 of Bundle R was from the Director: HRA & Services declining the appointment of the Applicant to act as a principal from 01 January to 31 October 2023. The Applicant was not appointed for the period 01 January to 31 October 2023. The Applicant does not qualify for an acting allowance payment for January to October 2023 because he (Applicant) was not appointed to act but only recommended.

13. During cross examination, he testified that he would interpret the letter on page 11 of Bundle R as a decision of a delegated authority and advise from the Director: HRA & Services. The Head of Department has delegated the powers to appoint acting principals to the Director: HRA & Services. The initial memorandum was recommending the appointment of the Applicant to act as principal from 01 January to 31 October 2023. He would not know the reason for the change from 01 January to 31 October 2023 and from 01 November 2023 to 31 March 2024 (page 18 of Bundle R).

Analysis of the evidence and arguments

14. In terms of Section 193 (4) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA), an Arbitrator appointed in terms of this Act may determine any unfair labour practice dispute on terms the Arbitrator deems reasonable. The Applicant referred an unfair labour practice dispute related to benefits. He alleged that the Respondent failed to pay him an acting allowance from 01 January to 31 October 2023 because he acted as the principal of Moukangoe Secondary School during that period. The Applicant has a duty to begin and the onus to prove on the balance of probabilities rests with him. The Applicant must prove on the balance of probabilities that the conduct of the Respondent in failing to pay him acting allowance constituted an unfair labour practice related to benefits.

15. Section 186 (2) (a) of the LRA defines an unfair labour practice as follows:
(2) “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 dismissal for a reason relating to probation] or training an employee or relating to the provision of benefits to an employee.”

Clause C.4.1.2 of the Personnel Administration Measures (PAM) 2016 states that “An Educator, complying with the minimum requirements in paragraph B.3.2 of Chapter B, must be appointed in writing by the employer to act”. Clause C.4.1.3 of the Personnel Administration Measures (PAM) 2016 further states that “An Educator may only be appointed to act in a post that is one post level higher than his/her current position”.

It is common cause that the Applicant was employed as CS1 Educator who met the requirements for appointment as an Educator. The Applicant’s testimony in the main was that he was recommended by the SGB, the Circuit Manager and the District Director to act as a principal of Moukangoe Secondary School from January to October 2023. The Respondent did not dispute this evidence. The Applicant further testified that he was executing the duties of the principal from 01 January to 31 October 2023, hence he claimed that he should be paid acting allowance for that period. In fact, the Applicant claimed that the approval for him to act as principal from 01 November 2023 to 31 March 2024 should have been backdated to 01 January 2023. The testimony of the Respondent was that the application of the Applicant for acting as a principal of Moukangoe Secondary School from 01 January to 31 October 2023 was declined. The Applicant did not have approval to act as a principal for that period. He was not appointed in writing to act from 01 January to 31 October 2023. However, the Applicant was approved to act from 01 November 2023 to 31 March 2024, hence he was paid acting allowance for that period. The Applicant in his evidence in chief conceded that there was no approval for him to act from 01 January to 31 October 2023. During cross examination the Applicant conceded that his application to act from 01 January to 31 October 2023 was declined by the Director: HRA & Services who had delegated authority to do so.

16. It is trite law in Sidumo v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held that the test for fairness is reasonableness. An Arbitrator must determine whether the decision taken by a decision maker is one that any reasonable decision maker would have taken, given the same set of facts or not. In this matter I must decide whether the decision by the Respondent not to pay the Applicant an acting allowance from 01 January to 31 October 2023 was a decision that a reasonable decision maker could take given the same set of facts. The Applicant was not appointed in writing to act as principal of Moukangoe Secondary School from 01 January to 31 October 2023. His application in respect of that period was declined, and he was informed thereof. The Applicant continued to perform the duties of a principal knowing very well that, it was not approved. I, therefore, find that the Respondent did not commit any unfair labour practice because the Applicant was not appointed to act as a principal during the period from 01 January and 31 October 2023.

17. In view of the above analysis I am of the view that there was nothing unreasonable in the non-payment of the acting allowance to the Applicant by the Respondent for the period 01 January to 31 October 2023. It is my finding that the Applicant has on the balance of probabilities failed to prove that the Respondent has committed an unfair labour practice by not paying him an acting allowance from 01 January to 31 October 2023. Therefore, the Applicant is not entitled to the relief he sought.

Award

18. The Applicant’s dispute is hereby dismissed.


VICTOR MADULA
ELRC PANELIST