PSES 806 17/18 KZN
PSES 806 17/18 KZN
Award Date:
6 October 2019
Case Number: PSES 806 17/18 KZN
Province: KwaZulu-Natal
Applicant: SAOU obo Lourens
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Zululand District Premises, Department of Education
Award Date: 6 October 2019
Arbitrator: Vuyiso Ngcengeni
Case : PSES 806 17/18 KZN
Award
Date of Award: 06 October 2019
Panelist : Vuyiso Ngcengeni
Province : Kwazulu Natal
Employee : Denise Lourens
Employer : Department of Education – Kwazulu Natal
Issue : Interpretation or Application of a Collective Agreement
Venue : Zululand District - Vryheid
In the ARBITRATION between:
SAOU obo Lourens Employee
And
Department of Education - Kwazulu Natal Employer
Employee representative: S Van der Berg (Union Official)
Telephone : 083 465 6999
Email : Innesk@saou.co.com
Employer representative: NG Dubazana
Telephone : 034 989 9854
Email :
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an award for the matter that was scheduled before me for arbitration on the 4th of October 2019 in Zululand District Premises, Department of Education.
2. The arbitration was held under the auspices of the Education Labour Relations Council (the Council).
3. The Employee was present and he was represented by Mr S Van der Berg and the Employer was represented by Ms N Dubazana.
4. The dispute was set down in terms of section 24 (2), [24 (5)] of the Labour Relations Act of 1995 as amended (the Act), and it is about the Interpretation or Application of a Collective Agreement, Resolution 4 of 2003, mainly clause 3.2.
5. The hearing was conducted in English and I also took notes.
ISSUE TO BE DETERMINED
6. I am required to determine whether the Employer has incorrectly interpreted and / or applied the Resolution when it failed to place the Employee at the fifth notch above the notch she was placed on, as she had completed five years as an active educator when she was employed by the Employer.
7. The Employee wants the Employer to pay her the difference she should have been paid, had the correct interpretation and / or application of the Resolution been complied with, and the total amount which is R 114 417.00.
BACKGROUND TO THE DISPUTE
8. The Employee was employed as a level 1 Teacher on 01 April 2008, based at Nuwe Republiek Primary (the school) and on 01 July 2018, she was promoted to the position of Head of Department at level 2 at the same school.
9. The Employee currently earns R 353 979.00 per annum and this notch is affected by this dispute.
10. The Dispute arose in 2016 and it was set down for arbitration in June 2018, where the parties signed a settlement agreement, in which the Employer agreed to interpret and / or apply the Resolution correctly, as stated by the Employee, but it later reneged and did not implement the agreement.
11. The Council therefore decided to set the matter down for arbitration for 04 October 2019.
12. The Employee submitted a bundle A, which consists of 38 pages that include the referral documents, the Resolution, Persal service records and the Employee’s Higher Education Diploma certificate received on 05 December 1986.
13. The Employer submitted a bundle – B, which consists of 44 pages that include the referral documents, the settlement agreement reached by the parties and personal records of the Employee.
SURVEY OF EVIDENCE AND SUBMISSIONS
The employee testified under oath as follows:-
14. She is the Head of Department for the foundation phase, and that is grades 1, 2 and 3.
15. She has worked as a Teacher first at Lucas Mars School for two years, and then she took a break. She then started again in January 2001 at the school, employed at the time by the School Governing Body.
16. She worked since 2001 until 31 March 2008 as reflected in her certificate of service on page 13 of bundle A.
17. On 01 April 2008 she was appointed by the Employer and she continued as a Teacher at the school.
18. On page 33 - 34 of the bundle is the table titled Recognition Service and it depicts her actual earnings and what should have been her earnings since 01 April 2008 until 30 June 2018 on an annual basis.
19. On page 35 of the bundle is the table that depicts amounts received and amounts that should have been received on a monthly basis and the total is R 114 417.00.
20. The calculations on pages 33 to 35 may not necessarily be 100% correct as they have not been verified through the Persal system. However, in the absence of any amount verified through the system, the said amount is the amount, which her union has calculated and arrived at.
Employer
21. Although the Employer representative had initially indicated that she was going to testify on behalf of the Employer, she later decided that she was not going to testify.
ANALYSIS OF EVIDENCE AND ARGUMENTS
22. The Resolution is titled – Post and Salary Structure for Educators and clause 3.2 of the annexure to the Resolution states that “ The starting salary of a newly appointed educator is the minimum notch of the applicable salary scale, provided that the following recognition for actual teaching or other suitable experience is given:
Experience gained before 1 July 1996
The salary position that would have been applicable to the person before 1 July 1996 as a result of the experience that he / she gained before 01 July 1996 must be determined. All further general adjustments as well as translations that took place on 01 July 1996 and 1 April 2003 must be effected in order to determine the applicable notch to which the person must be appointed.
…
Experience gained on or after 1 April 2003:
For each full year of recognizable experience gained, a notch increment will be granted.”
23. The Employee’s submission is that the Employer has failed to comply with the aforementioned clause of the Resolution when it appointed her on a notch that was five notches below what, when correctly interpreted and applied, should have been the correct notch. To this end, the Employee referred to page 37, which indicates her date of employment, and she mentioned that as reflected on the document, she was placed on notch number 085, which on 01 April 2008 was R 115 284.00 per annum. She submitted that she was supposed to be placed on notch number 090 (five notches upwards), which is reflected on page 36 and was R 209 040.00 on 01 July 2014.
24. The Employee referred to the notches on the tables from page 33 to 35 and indicated that the total amount her union arrived at is R 114 417.00 and that is the relief she seeks.
25. The Employer, during cross-examination did not dispute any of the facts and statements submitted by the Employee.
26. The Employer also chose not to testify, and to this end, the Employee’s version remains uncontested.
27. That being said, I therefore have no reason not to find that the Employer has indeed failed to correctly interpret and / or apply the Resolution. As a consequence, the Employee has been short-paid through the Employer’s decision to place her five notches below the correct notch on which she should have been placed by an amount that has been submitted to be R 114 117.00.
AWARD
28. The Employer has incorrectly interpreted and / or applied the Resolution when it failed to place the Employee on five notches above the notch in which it placed her on 01 April 2008.
29. The Employer is ordered to correct the notch on which it placed the Employee and pay her an amount of R 114 117.00.
30. In case the Employer arrives at a different amount after doing the corrections in the system, it should liaise with the Employee and her representative and agree on such an amount. Failing which the amount stated in paragraph 30 above remains payable.
31. The Employer is also ordered to pay the said amount by no later than 31 October 2019.
Vuyiso Ngcengeni
Panelist / Commissioner
Province: KwaZulu-Natal
Applicant: SAOU obo Lourens
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Zululand District Premises, Department of Education
Award Date: 6 October 2019
Arbitrator: Vuyiso Ngcengeni
Case : PSES 806 17/18 KZN
Award
Date of Award: 06 October 2019
Panelist : Vuyiso Ngcengeni
Province : Kwazulu Natal
Employee : Denise Lourens
Employer : Department of Education – Kwazulu Natal
Issue : Interpretation or Application of a Collective Agreement
Venue : Zululand District - Vryheid
In the ARBITRATION between:
SAOU obo Lourens Employee
And
Department of Education - Kwazulu Natal Employer
Employee representative: S Van der Berg (Union Official)
Telephone : 083 465 6999
Email : Innesk@saou.co.com
Employer representative: NG Dubazana
Telephone : 034 989 9854
Email :
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an award for the matter that was scheduled before me for arbitration on the 4th of October 2019 in Zululand District Premises, Department of Education.
2. The arbitration was held under the auspices of the Education Labour Relations Council (the Council).
3. The Employee was present and he was represented by Mr S Van der Berg and the Employer was represented by Ms N Dubazana.
4. The dispute was set down in terms of section 24 (2), [24 (5)] of the Labour Relations Act of 1995 as amended (the Act), and it is about the Interpretation or Application of a Collective Agreement, Resolution 4 of 2003, mainly clause 3.2.
5. The hearing was conducted in English and I also took notes.
ISSUE TO BE DETERMINED
6. I am required to determine whether the Employer has incorrectly interpreted and / or applied the Resolution when it failed to place the Employee at the fifth notch above the notch she was placed on, as she had completed five years as an active educator when she was employed by the Employer.
7. The Employee wants the Employer to pay her the difference she should have been paid, had the correct interpretation and / or application of the Resolution been complied with, and the total amount which is R 114 417.00.
BACKGROUND TO THE DISPUTE
8. The Employee was employed as a level 1 Teacher on 01 April 2008, based at Nuwe Republiek Primary (the school) and on 01 July 2018, she was promoted to the position of Head of Department at level 2 at the same school.
9. The Employee currently earns R 353 979.00 per annum and this notch is affected by this dispute.
10. The Dispute arose in 2016 and it was set down for arbitration in June 2018, where the parties signed a settlement agreement, in which the Employer agreed to interpret and / or apply the Resolution correctly, as stated by the Employee, but it later reneged and did not implement the agreement.
11. The Council therefore decided to set the matter down for arbitration for 04 October 2019.
12. The Employee submitted a bundle A, which consists of 38 pages that include the referral documents, the Resolution, Persal service records and the Employee’s Higher Education Diploma certificate received on 05 December 1986.
13. The Employer submitted a bundle – B, which consists of 44 pages that include the referral documents, the settlement agreement reached by the parties and personal records of the Employee.
SURVEY OF EVIDENCE AND SUBMISSIONS
The employee testified under oath as follows:-
14. She is the Head of Department for the foundation phase, and that is grades 1, 2 and 3.
15. She has worked as a Teacher first at Lucas Mars School for two years, and then she took a break. She then started again in January 2001 at the school, employed at the time by the School Governing Body.
16. She worked since 2001 until 31 March 2008 as reflected in her certificate of service on page 13 of bundle A.
17. On 01 April 2008 she was appointed by the Employer and she continued as a Teacher at the school.
18. On page 33 - 34 of the bundle is the table titled Recognition Service and it depicts her actual earnings and what should have been her earnings since 01 April 2008 until 30 June 2018 on an annual basis.
19. On page 35 of the bundle is the table that depicts amounts received and amounts that should have been received on a monthly basis and the total is R 114 417.00.
20. The calculations on pages 33 to 35 may not necessarily be 100% correct as they have not been verified through the Persal system. However, in the absence of any amount verified through the system, the said amount is the amount, which her union has calculated and arrived at.
Employer
21. Although the Employer representative had initially indicated that she was going to testify on behalf of the Employer, she later decided that she was not going to testify.
ANALYSIS OF EVIDENCE AND ARGUMENTS
22. The Resolution is titled – Post and Salary Structure for Educators and clause 3.2 of the annexure to the Resolution states that “ The starting salary of a newly appointed educator is the minimum notch of the applicable salary scale, provided that the following recognition for actual teaching or other suitable experience is given:
Experience gained before 1 July 1996
The salary position that would have been applicable to the person before 1 July 1996 as a result of the experience that he / she gained before 01 July 1996 must be determined. All further general adjustments as well as translations that took place on 01 July 1996 and 1 April 2003 must be effected in order to determine the applicable notch to which the person must be appointed.
…
Experience gained on or after 1 April 2003:
For each full year of recognizable experience gained, a notch increment will be granted.”
23. The Employee’s submission is that the Employer has failed to comply with the aforementioned clause of the Resolution when it appointed her on a notch that was five notches below what, when correctly interpreted and applied, should have been the correct notch. To this end, the Employee referred to page 37, which indicates her date of employment, and she mentioned that as reflected on the document, she was placed on notch number 085, which on 01 April 2008 was R 115 284.00 per annum. She submitted that she was supposed to be placed on notch number 090 (five notches upwards), which is reflected on page 36 and was R 209 040.00 on 01 July 2014.
24. The Employee referred to the notches on the tables from page 33 to 35 and indicated that the total amount her union arrived at is R 114 417.00 and that is the relief she seeks.
25. The Employer, during cross-examination did not dispute any of the facts and statements submitted by the Employee.
26. The Employer also chose not to testify, and to this end, the Employee’s version remains uncontested.
27. That being said, I therefore have no reason not to find that the Employer has indeed failed to correctly interpret and / or apply the Resolution. As a consequence, the Employee has been short-paid through the Employer’s decision to place her five notches below the correct notch on which she should have been placed by an amount that has been submitted to be R 114 117.00.
AWARD
28. The Employer has incorrectly interpreted and / or applied the Resolution when it failed to place the Employee on five notches above the notch in which it placed her on 01 April 2008.
29. The Employer is ordered to correct the notch on which it placed the Employee and pay her an amount of R 114 117.00.
30. In case the Employer arrives at a different amount after doing the corrections in the system, it should liaise with the Employee and her representative and agree on such an amount. Failing which the amount stated in paragraph 30 above remains payable.
31. The Employer is also ordered to pay the said amount by no later than 31 October 2019.
Vuyiso Ngcengeni
Panelist / Commissioner