ELRC163-24/25EC
Award  Date:
 30 July 2024

Arbitrator: Macjon Maarman
Case number: ELRC163-24/ 25 EC
Date of Award: 30 July 2024

Naptosa on behalf of Nkosiphendule Ntantala Applicant
and
Department of Education, Eastern Cape 1st Respondent
Department of Basic Education 2nd Respondent

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration under ELRC163-23/ 24 EC concluded on 19 July 2024 virtually. The applicant, Mr. Nkosiphendule Ntantala, was present and represented by Mr. Anton Adams, an official from Naptosa. The first respondent, Department of Education, Eastern Cape, was present and represented by Mr. Sandile Nyalambisa its’ employee relations manager. The second respondent, Department of Basic Education, was absent from the proceedings.

2. The proceedings were manually and digitally recorded. Parties submitted bundles of documents which were accepted for what it purported to be. Parties further agreed to submit closing arguments on an agreed date.

ISSUE TO BE DECIDED

3. I am required to determine whether the respondent committed an unfair labour practice in relation to benefits against the applicant. The applicant seeks compensation and to be placed on salary notch R774 531, 00.

SURVEY OF EVIDENCE AND ARGUMENT

4. This award does not contain everything that was said that the arbitration or in the arguments of the parties. It only records the evidence and arguments material to the subject matter and the finalization of the dispute. This is in line with section 18.6.1 of the ELRC constitution as well as section 138 (7) of the LRA.

The applicant’s case
5. Mr. Nkosiphendule Ntantala (herein after “the applicant”) said that he is employed by the respondent as a principal and he also seconded to the ELRC as national negotiator.

6. The applicant further said that this case is about the interpretation of Part F of the Personnel Administrative Measures (PAM) policy and ELRC resolution 2 of 2002. He further said that he qualified for salary progression for the periods of 2022 and 2023 but that the respondent failed to pay him such. There is currently no assessment instrument for workers like him (seconded as national negotiators) and he should have received the salary progression on default.

7. The applicant further said that 1 June 2024 he was on notch 338 = R767 082, 00 per annum, whereas the he should have been on notch 340 = R774 531, 00. On 1 July 2022 the applicant said that he should have been on notch 339 = R693 594, 00 but remained on notch 338 = R690 192, 00. On 1 April 2023 the applicant said that he should have been on R736 164, 00 but instead was on notch R732 648,00. On 1 July 2023 the applicant said that he should have been 340 -R739 761, 00, but remained on notch 338. On 1 April 2024 the applicant said he should have been on R774 531, 00 but currently is on notch 338 = R767 082, 00

8. Further outlining the monetary calculations that applicant said that for the period of 1 July 2022 until 31 March 2023 there is an amount due to him of R3685, 00 broken down as - 1 July 2022 – 31 March 2023 R693594 –R 690192 = R3402 + 283 pro rata bonus = R3685. He also said that for the period of 1 April 2023 – 30 June 2023 736164 – 732648 = 3516/12x3 = R553, 00 was due to him. The applicant also said that for the period of 1 July 2023 – 31 March 2024 739761- 736164 = 2697.75 + 299 (bonus) =R2996.75 was the amount of money due to him and that for the period of 1 April 2024 – 30 June 2024 – 774531 – 767082 = R1937,25 was the amount of money due him making the grand total of money due him to be R8619.00.

9. The abovementioned calculations were not disputed by the respondent.

10. Under cross examination the applicant said that he was of the opinion that the pay progression will be paid on default to him as he met all the ELRC requirements.

The respondent’s case
11. The 1st Respondent did not lead any oral testimony nor did they submit closing arguments at the agreed date.

ANALYIS OF ARGUMENT:

12. Section 186 (2) of the LRA holds 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 provision of benefits to an employee”.

13. Part F4.1.1. of the PAM policy holds that “Trade unions are entitled to have educators seconded to trade unions registered with the ELRC, to occupy full time positions to which they have been duly elected”. Part F.4.1.3.1 of the PAM policy holds that “members of trade unions in good standing, who have been seconded to trade unions in accordance with this entitlement, will retain all their benefits”. Furthermore uncontested evidence was led that the applicant qualified for salary progression in terms the relevant Collective agreement.

14. In this case uncontested evidence was led that the applicant was not salary progressed as per ELRC resolutions 2 of 2002 and that he qualified for that in terms of the PAM policy. It is an irregularity for the applicant to not have been salary progressed and the applicant was clearly prejudiced through the non-payment of R8619, 00 to him.

15. The 1st respondent must thus salary progress the applicant on its’ systems and pay the applicant, R8619, 00. The respondent must further place the applicant on salary band/ level R774 531, 00.

AWARD

16. The 1st respondent, Department of Education, Eastern Cape, committed an unfair labour practice relating to benefits against the applicant, Mr. N.F Ntantala.

17. The 1st respondent, Department of Education, Eastern Cape, must pay the applicant, Mr. N.F. Ntantala, R8619, 00 (Eight thousand six hundred and nineteen rands) by 16 August 2024.

18. The 1st respondent, Department of Education, Eastern Cape, must salary progress the applicant, Mr. N.F. Ntantala on its system to salary band R774 531, 00 by no later than 31 August 2024


Panelist: Macjon Maarman
ELRC163-24/ 25 EC

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