PSES204 -19 / 20 LP
PSES204 -19 / 20 LP
Award Date:
7 August 2019
Case Number: PSES204 -19 / 20 LP
Province: Limpopo
Applicant: SADTU obo Charles Malope Chipu & 72 Others
Respondent: Department of Education (Limpopo Provincial Administration)
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Corner Hospital and Hans Van Rensburg Street, Polokwane, Limpopo Province
Award Date: 7 August 2019
Arbitrator: Ntsepeng Mookamedi
Case Number : PSES204 -19 / 20 LP
Panellist : Ntsepeng Mookamedi
Date of Award : 07 August 2019
In the matter between
SADTU obo Charles Malope Chipu & 72 Others
(Union / Applicant)
And
Department of Education (Limpopo Provincial Administration)
(Respondent)
Applicants’ representative : Mr Moraka Abel Makgaa
91 Biccard Street
Polokwane
0700
Telephone number : (015) 2915418
Fax number : (015) 2911667
Email address : thobjam@webmail.co.za
DETAILS OF THE HEARING AND REPRESENTATION.
[1] This is an Arbitration Award in the arbitration hearing between the Applicant Mr Charles Malope Chipu and 72 Others (the Applicants) and the Respondent, Department of Education, Limpopo Provincial Administration. The arbitration hearing took place on 24 July 2019 and was concluded on the same day. The hearing was conducted within the business premises of the Respondent at Corner Hospital and Hans Van Rensburg Street, Polokwane, Limpopo Province.
[2] The Applicants were represented by Mr Moraka Abel Makgaa, a Union Official from the South African Democratic Teachers Union, commonly referred to as “SADTU”. Prior to the commencement of the arbitration hearing, Mr Makgaa submitted that for purposes of promoting the best interest of the learners (being a continuous and an unhindered learning process) from the affected schools where the current dispute arose, SADTU decided to have one Applicant drawn from the five schools to attend the arbitration hearing.
[3] The Respondent also attended the arbitration hearing and was duly represented by Advocate Rudzani Makhema, an Assistant Director responsible for misconduct, disputes resolution and grievance handling. Advocate Makhema also supported Mr Makgaa’s submission in relation to the above arrangement in so far as the sixty seven co-Applicants’ arrangement in relation to their attendance at the arbitration hearing. Mr Makgaa submitted a signed attendance register which was accordingly signed by the remaining sixty seven co-Applicants at their respective schools for a reason related to Paragraph 2 of this Arbitration Award.
[4] The sixty seven co-Applicants’ delegation during the arbitration hearing consisted of Mesdames Victoria Legodi, Emma Mogoale and Masseurs Charles Malope Chipu, Oupa Thaba and Jacob Somo. The arbitration hearing was both mechanically as well as manually recorded. Prior to the commencement of the arbitration hearing, the Applicants’ submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle A”. The Applicant’s bundle ranged from “Page 01 until Page 60”.
[5] On the corresponding side, the Respondent submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle B”. The Respondent’s bundle of documents ranged from “Page 01 to Page 50”. The arbitration hearing is therefore decided on documentary as well as on oral evidence. At the conclusion of the arbitration hearing, both parties submitted written closing arguments on 31 July 2019. I have accordingly considered the totality of both parties’ written closing arguments which were more relevant to the current dispute in rendering this Arbitration Award.
NATURE OF THE DISPUTE.
[6] The dispute concerns an alleged unfair labour practice in relation to the Respondent’s failure to pay the Applicants incentives to academically qualifying educators in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 read together with Clause 9.1.2.1 of the ELRC’s Constitution (Part C, Dispute Resolution Procedures).
[7] The current dispute is primarily rooted in both section 186 (2) (a) of the LRA as well as Government Gazette No. 30678 which was duly signed by the then Minister of the Department of Education, Honourable Grace Naledi Mandisa Pandor on 15 December 2007 as well as the Respondent’s two Circulars, namely, Circular 29 of 2017 and Circular 71 of 2017. The two cited Circulars were duly signed by the Respondent’s Accounting Officer (Head of Department) on 16 February 2017 and 13 April 2017 respectively.
ISSUE TO BE DECIDED
[8] I am required to decide whether or not the Respondent committed any alleged labour practice in relation to having allegedly failed to pay the Applicants the benefits as provided for in Paragraph 8.1 of the above cited Government Gazette. Should I find that the Respondent’s action against the Applicants constitutes an unfair labour practice as alleged, I shall determine the appropriate relief.
BACKGROUND TO THE DISPUTE
[9] On 15 December 2007, the then Minister of Education, Honourable Minister Grace Naledi Pandor published a Government Gazette entitled “Improvement in conditions of service for educators employed in terms of the Employment of Educators Act, 1998: Teacher Incentives”. The said Government Gazette has in its principal purpose, geared towards the provision for payment of incentives to academically qualified educators by meeting certain prescribed criteria.
[10] The provision for the payment of such incentives to any such eligible academically qualifying educators is set out in Paragraphs, 1, 2, 8.1 and 8.2 of the Government Gazette respectively. The Applicants in this matter are employed by the Respondent as Educators in terms of the Employment of Educators Act 76 of 1998 and they all possess REQV 13 or higher (Relative Qualification Education Value) which is a postgraduate teaching qualification.
[11] Paragraph 10 of the same Gazette directed the Respondent’s Head of Department on or by no later than 30th September of the year before that of implementation, to provide to the Director-General of the Department of Education the following report, namely:
(a) The types and number of posts that would be eligible for the incentive in terms of Paragraphs 8.1 and 8.2 of the same Gazette.
(b) Percentage applicable to each type of incentive.
(c) Levels or “steps” added to the percentage applicable to each type of incentive post and the criteria for qualifying for the various levels or “steps”.
(d) The number of incentive posts that were created and to be paid out in kind and a description thereof, for example provision of free housing, provision of subsidized vehicle, overseas study visits or study visits.
[12] The Applicants consider themselves to be eligible for payment of such incentives in terms of the criteria set out in Paragraphs 1, 2, 8.1 and 8.2 of the above mentioned Government Gazette. The Applicants’ eligibility to such payment is said to be with effect from the date of publishment of the same Gazette. The Respondent’s Head of Department issued two Circulars on 16 February 2017 and 13 April 2017. The said Circulars were issued for purposes of making a determination of the qualifying criteria provided for in Paragraphs 8.1 and 8.2 of the Gazette. The Respondent issued a list of the schools whose posts were eligible for incentivization on the following periods, 01 January 2008 to 31 December 2008 and 01 July 2011 to 31 March 2012.
[13] The above list was issued to the exclusion of the Applicants’ schools in this matter, hence the Applicants’ referral of the dispute before the Education Labour Relations Council (the ELRC). The Applicants initially referred their dispute at the General Public Service Sectoral Bargaining Council and owing to lack of jurisdiction by the latter Council, the matter was transferred to the ELRC on 25 June 2019.
[14] The ELRC set the matter down for a pre-arbitration hearing process on 24 June 2019 in terms of Clause 17.2.3 of the ELRC’s Constitution. The matter was conciliated on the said day and remain unresolved where after a Certificate of non-resolution was issued. The Applicants later referred the dispute to arbitration level.
SURVEY OF EVIDENCE AND ARGUMENTS.
The Applicants’ case.
The Applicants’ only witness, Mr Charles Malope Chipu testified on behalf of his fellow co-Applicants under oath as follows:
[15] He is employed by the Respondent as an Educator at Maphetsa Primary School. His employment history with the Respondent dates back from 13 January 1995 where he was appointed at Post Level 1 (CS1 Educator’s Post). He was later promoted to the position of being a Departmental Head with effect from the period 01 September 2006. As from the period 01 July 2009, he was promoted to the position of being a Deputy Principal Educator at the same school. As from the period, 01 September 2018, he was appointed as an Acting Principal Educator. As at the time of the arbitration of the current dispute, he was still occupying the position of an Acting Principal Educator at the same school.
[16] Together with his seventy two co-Applicants, he meets all the requirements set for consideration to be paid the employment related incentives as provided for in Paragraphs 1, 2, 8.1 and 8.2. of the Government Gazette referred in Paragraph 7 of this Arbitration Award. Such employment related incentives became due and payable to him and his fellow Applicants with effect from 18 January 2008 (being the date on which the above cited Government Gazette became effective). The Applicants became aware about their eligibility for payment for the said benefits arising out of the same Government Gazette during a training session that was convened by SADTU’s Capricorn Regional Secretary Mr Thobja Munyai on 04 April 2019.
[17] The Applicants’ schools fall within the category of quintile 1 schools in terms of Paragraph 8.1 of the same Gazette. Paragraph 8.1 (b) of the same Gazette clearly defines a “quintile 1” schools being the 20% poorest schools. Proof of the Applicants’ schools being categorised under quintile 1 can be evidenced on the following Pages of the individual schools’ staff establishment as per “Bundle A” respectively, namely, “Page 19 (Maphetsa Primary School, Page 25 (Sealane Primary School), Page 32 (Phophedi Secondary School), Page 40 (Mamongao Primary School), and Page 45 (Scheiding Primary School). The said determination was duly made by the Respondent’s Superintendent General, Ms N.B Mutheiwana on 15 November 2018 respectively.
[18] He considers himself together with his co-Applicants to be in possession an academic qualification (Honours Degree in Bachelor of Education) which is an REQV14 qualification. He submitted a copy of a list of educators attached to his school (Maphetsa Primary School). Copy of such list was presented on “Page 22, 24, 39 and 50 of Bundle A”. Furthermore, the Applicants’ schools fall under the required weighted distance of 140 kilometres and more as determined by Paragraphs 2.1 and 2.2 of the Respondent’s Circulars 29 of 2017 and 71 of 2017 (Page 13 to 15 of Bundle A”. The closest metropolitan city is Pretoria with a raw distance of 347, 3 kilometres. The weighted distance from Maphetsa Primary School is 173 kilometres as per “Page 51 of Bundle A”.
[19] Sealane Primary School’s closest metropolitan is Pretoria with a raw distance of 346, 5 km while the weighted distance is at 214 kilometres. The same applies to Phophedi High School with its nearest metropolitan city being Pretoria and its raw distance recorded at 346,5 kilometres, but its weighted distance standing at 229 kilometres. Mamongao Primary School’s closest metropolitan is Pretoria with a raw distance of 321 kilometres and a weighted distance of 193 kilometres as per “Page 51 of Bundle A”.
[20] The Applicants’ in this matter managed to make a factual case for an unfair labour practice in relation to the Respondent’s legal obligation to pay them employment related benefits (teacher incentives) as regulated by section 186 (2) (a) of the Labour Relations Act 66 of 1995 read together with Paragraphs 1, 2, 8.1 and 8.2 of the Government Gazette. The Applicants referred me to the authority of Protekon (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2005) 26 ILJ 1105 (LC) in support of their case.
[21] In the Protekon judgment, the court in dealing with a similar dispute such as the one before me held that section 186 (2) (a) of the Labour Relations Act imposes an obligation on employers as regards the provisioning of benefits, to act fairly in circumstances where there is an obligation to do so, whether contractually or statutorily, as well as in circumstances where the employer exercises its discretionary powers in terms of its policies and rules in deciding whether or not an employee should be granted a benefit.
[22] The Protekon authority is applicable to this current dispute and its legal principle must be applied and observed in terms of the precedent system. The Applicants prayed for an Award that can order the Respondent to pay them the employment related benefits regulated in the above mentioned Government Gazette. Furthermore, that such payment be ordered to be paid to the Applicants retrospectively plus any accumulated interest in terms of the Prescribed Rate of Interest Act 55 of 1975 (as amended). In conclusion, that such employment related benefits be ordered to be paid to the Applicants for as long as the Applicants remain entitled to such benefits. The Applicants’ closed their case.
The Respondent’s case.
The only witness of the Respondent, Ms Annete Fielding testified under oath as follows:
[23] She is employed by the Respondent as a Deputy Director: Conditions of Service at the Provincial Office in Polokwane. She once participated in a process which dealt with complaints which related to teacher incentives in terms of the current Government Gazette. Such process also took into account whether or not the received complaints met the criteria set out in the Government Gazette which is the subject matter of the current arbitration hearing. During the first quarter, the Respondent received a database from the national Department of Education. Such database directed the Respondent to pay the teacher incentive benefits to schools identified in the received database.
[24] The national Department of Education developed the said database and communicated it to the Respondent guided by the above mentioned Government Gazette. The Applicants’ schools were not on the said database. On 12 June 2008 she generated a written submission to the Respondent’s then Head of Department, Reverend Z.C Nevhutalu. The said submission was approved by Reverend Nevhutalu and endorsed by the then Member of the Executive Council of Education in Limpopo, Dr Aaron Motsoaledi on 03 July 2008 respectively. She referred to a copy of such previously generated written submission on “Page 1 to Page 3 of Bundle B”. A copy of the said database was presented and relied upon as evidence on “Page 1 to Page 21 of Bundle B”.
[25] The actual financial costing of teacher incentive process for the period 1 July 2008 until 31 December 2008 could not be done during 2008 Financial Year. The said state of affairs was caused by the non-availability of Educators’ salaries as from the period 1 July 2008. A copy of the projected financial costing which could not be actualised as from 1 July 2008 was presented as evidence and relied upon on “Page 4 of Bundle B”. The Applicants’ posts linked to the five schools in this matter were not considered to be eligible to receive such teacher incentives.
[26] Even at the conclusion of this arbitration hearing, the Applicants’ linked posts were still not entitled to be incentivised. The Respondent acted fairly by not paying the Applicants any such incentives due to the fact that the Applicants’ posts are not eligible to be incentivised. None of the Respondent’s Educators were ever paid any such employment related incentive while using Circulars 29 and 71 of 2017. Only the Respondent’s Head of Department is vested with the necessary power to identify posts which are to be incentivised in terms of the Government Gazette under consideration. During the 2007/2008 Financial Year, the Respondent paid teacher incentives to a total of 6598 (Six Thousand Five Hundred and Ninety Eight) posts across Limpopo Provincial Administration.
[27] Since the coming into effect of the Government Gazette, the Respondent never received additional incentivised posts. The Applicants’ posts are not eligible for payment of incentive taking into account Paragraphs 14 and 15 of the current Government Gazette. Both Paragraphs 14 and 15 of the Government Gazette empower the national Minister of the Department of Education to declare qualifying posts for payment of teacher incentive on an annual basis. Since the year 2008, the Minister of the Department of Education has not made such declaration.
[28] During the period, 25 November 2009, she generated another written submission to the Respondent’s five Districts where the Respondent duly communicated to its Districts Management as to how the incentive programme was actualised to the specific schools as per the determination duly made by the Respondent’s Head of Department. The said communication strategy was developed after the Respondent received a number of complaints flowing from the implementation of the teacher incentives as per the Government Gazette. She referred to such copies of communication to the Respondent’s five Districts on “Page 42 to Page 46 of Bundle B”.
[29] The Applicants in this matter are not occupying incentivised posts which are eligible for payment of the benefits provided for in the Government Gazette. As such, the Applicants have not been subjected to any alleged unfair practice by the Respondent in terms of section 186 (2) (a) of the Labour Relations Act. The Respondent has never incentivised any Educators’ posts in terms of either Circular 29 of 2017 or let alone Circular 71 of 2017. During cross examination, she testified that:
[a] Before the Respondent’s issuance of both Circular 29 and 71 of 2017, posts which were identified for teacher incentivization were done on the basis of the Respondent’s misrepresentation of the current Government Gazette.
[b] Furthermore, that such misrepresentation of the Government Gazette took place during the 2010/2011 Financial Year and 2011/2012 Financial Year.
[c] She disputed the version put to her by Mr Makgaa to the effect that the role of the Minister of Education is to monitor the implementation of the current Government Gazette and not to allocate employment related incentives to the academically qualifying educators.
[d] She does not know the justification as to why the schools posts whose names appear on “Page 25 of Bundle B” were incentivised although their weighted distance fell below the minimum distance of 140 kilometres.
[e] Circular 27 of 2017 and Circular 71 of 2017 are relevant to the current dispute so as to prove measures which have been put in place by the Respondent in having considered certain posts for incentivization flowing from the Government Gazette.
[29] The Applicants failed to establish a factual case for unfair labour practice. As such, the Applicants’ case stands to be accordingly dismissed. The Respondent closed its case.
ANALYSIS OF EVIDENCE, ARGUMENTS AND FINDINGS
[30] Before I deal with the evidence as well as the parties’ evidence in relation to the main dispute before me, I had a duty to deal with the situation (physical non-attendance of the sixty seven co-Applicants) as per Paragraph 2 and 3 of this Arbitration Award. In the authority of Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC), the Constitutional Court expressed the legal principle that section 28 (2) of the Constitution of the Republic of South Africa, 1996 imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions.
[31] The court went further that courts and arbitrators are bound to give consideration to the effect their decisions will have on children’s lives. I have accordingly considered the sixty seven co-Applicants’ situation as per Paragraph 2 and 3 of this Arbitration Award to the legal principle as set out in the authority cited in Paragraph 30 of this Arbitration Award. The legal principle expressed in the Governing Body decision finds legal application in the current matter in so far as the physical attendance of the sixty seven co-Applicants is concerned. I have therefore aligned myself with the same legal principle in dealing with the current dispute before me.
[32] Turning to the issue relating to the primary dispute in this matter, the point of departure in any alleged unfair labour practice dispute is that the Applicants’ have a duty to establish the existence of any such alleged unfair labour practice which has been allegedly committed by the Respondent in this matter. Once such onus of proof is factually established, the onus will then shift to the employer, (being the Respondent in this matter) to factually prove that the conduct in question was exercised in a fair manner. Fairness requires an evaluation that is multidimensional (see Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) at paragraph 127).
[33] In the matter of National Union of Metalworkers of South Africa v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (A) 589C-D; National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) at paragraphs 32 and 33, the court expressed the legal principle that the fairness required in the determination of any alleged unfair labour practice must be fairness towards both the employee (being the Applicants in this matter) and the employer (being the Respondent in this matter). I have accordingly aligned myself with the same legal principle in dealing with the current dispute before me. The Applicants’ evidence in chief which has been tendered by one witness, Mr Charles Malope Chipu was to the effect that the Respondent committed an unfair labour practice against the Applicants by failing to pay them the employment related benefits in terms of Paragraphs 1, 2, 8.1 and 8.2 of the Government Gazette under consideration read together with Paragraph 2 of the Respondent’s Circulars 29 and 71 of 2017.
[34] Mr Chipu’s evidence, representing those of his seventy two fellow Applicants assessed in its material totality, was to the effect that Paragraphs 1, 2, 8.1 and 8.2 of the abovementioned Government Gazette read together with Paragraph 2 of Circulars 29 and 71 issued by the Respondent finds application to the Applicants’ case. Furthermore, that the above cited paragraphs of the Government Gazette read in conjunction with Circulars 29 and 71 of 2017 have not been accordingly complied by the Respondent in the payment of teacher incentives to other fellow Educators to the Applicants’ exclusion. On the corresponding side, the Respondent refuted the Applicants’ allegation pertaining to the current dispute.
[35] I have accordingly considered the Applicants’ evidence in its totality, but most importantly, based on Paragraphs 1, 2, 8.1 and 8.2 of the Government Gazette as well as Paragraph 2 of the above mentioned Circulars as strongly argued by the Applicants in their assertion as the basis for the Applicants’ unfair labour practice claim, being the subject matter of the current dispute in terms of section 186 (2) (a) of the Labour Relations Act. Paragraph 1 of the Government Gazette provides that “This incentive scheme is limited to fully qualified (REQV 13 or higher) paid educators in schools as defined in the Employment of Educators Act (1998). It excludes any educator subjected to another agreement or directive, rehabilitation posting, suspension without pay or absent without pay”.
[36] Paragraph 2 of the same Government Gazette goes further and provides that “A post or certain posts at a school will be identified to be eligible for incentives in accordance with criteria set out in paragraph 8.1 and 8.2”. Having considered the totality of the Applicants evidence, I find the Applicants’ evidence in relation to the following list of Applicants to be factually relevant, probable and credible as it relates to the dispute before me. As a consequent hereof, I find that the Respondent committed an unfair labour practice in relation to the following list of Applicants in terms of the Government Gazette read together with the two cited Circulars. The list of the Applicants against whom the Respondent committed an unfair labour practice as per Paragraph 1, 2, 8.1 and 8.2 of the Government Gazette read together with Paragraph 2 of the two cited Circulars and who in terms of the evidence placed before me possessed the following educational qualification are as follows:
[37] The Applicants who in terms of uncontested evidence before me and who possess an academic qualification (REQV13 or more) (Honours in Bachelor of Education Management) were Mr Charles Malope Chipu, M.W Makgato, K.I Makgoatha, M.N Makgoka ,N.S Mamabolo, T.M Mashalane, M.N Mathekga, T.L Matsoku, C.G Mokobane, M.S Mokukwane, M.P Moleya, M.D Ramaphakela, R.W Tsiri, L.M Hopane, M.J Masekela (Bachelor of Technology) ,K.W Mmethi (Bachelor of Administration), M.M Lehong (Bachelor of Education in Management),M.S Rampedi (Higher Education Diploma and V Madisha (Bachelor of Education in Management). The above list of Applicants is attached to Maphetsa Primary School as per “Page 22 to 23 of Bundle A”. The school’s staff establishment as a “Quintile 1 school” was determined by the Respondent’s Superintendent General (Ms N.B Mutheiwana) on 15 November 2018 (see Page 19 of Bundle A respectfully).
[38] Educators attached to Scheiding Primary School who according to uncontested evidence before me and who possess the required academic qualification (REQV 14, safe for R.B Masete who possess (RQEV 13) and are eligible for payment of the incentive scheme are (M.R Moroaswi), K.D Maimela, R.C Malahlela, R.G Ntsoane, T.M Motebejane, R.A Makola, M.A Makgai, T.E Matemane, O.P Thaba, M.S Kganane, M.J Mogoba and R.E Mogoale. Although I find that the Respondent’s Superintendent General arrived at the same determination as per the Government Gazette in relation to Phophedi Primary School, Sealane Primary School, Mamongao Primary School, Scheiding schools establishments as per “Page 25, 32, 40 and 45 of “Bundle A” on 15 November 2018, Mr Chipu did not provide any factual evidence to prove that his fellow Applicants attached to Phophedi, Sealane and Mamongao Primary Schools possess the academic qualifications as required by Paragraph 1 of the Government Gazette.
[39] As a result thereof, I only made a finding on the Applicants whose posts met all the set out requirements in the Government Gazette read together with the two Circulars in this matter. The absence of any evidence to the effect that the Applicants attached to Phophedi, Sealane and Mamongao Primary Schools possessed REQV 13 or more academic qualification leaves me with no option but to exclude them in making a finding as to whether the Respondent committed an unfair labour practice against the Applicants attached to such schools in this matter. The Applicants whose names appear on “Paragraph 37 and 38” of this Arbitration Award, being the party who alleged that they are the victims of an alleged unfair labour practice had a statutory duty to prove such a claim on the balance of probabilities (see the authority expressed in Ethekwini Municipality v SA Local Government Bargaining Council & others [2009] JOL 23625 (LC).
[40] Having considered the Applicants’ evidence whose names appear on “Page 37 and 38” of this Arbitration Award, and guided by the legal principle espoused in the Protekon judgment, the ineluctable conclusion I am able to arrive at is that the Applicants succeeded in making a factual case of unfair labour practice in relation to the Respondent’s failure to pay them the incentive scheme regulated in the Government Gazette being under consideration. Having succeeded in factually having discharged such statutory regulated onus, the Respondent had a similar duty to prove that the decision not to pay such incentive scheme was made in a substantially fair manner. Throughout the entire arbitration proceeding, Respondent had just been in denial mode that the Applicants posts whose names appear on “Page 37 and 38” of this Arbitration Award are entitled for payments in terms of the Government Gazette.
[41] The evidence of the Respondent’s only witness (Ms Annette Fielding) during evidence in chief (on Page 26) of this Arbitration Award recorded that none of the Applicants posts involved in this matter qualifies to be incentivised in terms of the Government Gazette under consideration. Furthermore, that none of the Respondent’s Educators were ever paid any employment benefits arising from the Government Gazette in terms of Circulars 29 and 71 of 2017. Strange enough, the evidence of Ms Fielding on “Page 29” of this Arbitration Award recorded that during 2008/2009 Financial Year, the Respondent paid the same incentive scheme to 6598 posts across Limpopo’s Provincial Administration. Furthermore, that such incentive scheme was paid to the qualifying schools in terms of the Government Gazette and that the Applicants’ schools did not qualify for such incentive scheme.
[42] Ms Fielding’s evidence in chief further recorded that only the Respondent’s Head of Department (the Superintendent General to be precise) is the only person upon whose responsibility, the duty to make a determination in terms of posts that are eligible for payment of the incentive scheme resides. Furthermore, that “Paragraphs 14 and 15” of the Government Gazette empowers the Minister of Education to declare qualifying posts at specific schools to be eligible for payment of the incentive scheme in terms of the criteria articulated in the Government Gazette. After having considered the Respondent’s evidence in its totality, I find the Respondent’s evidence to be factually flawed, weak, totally unpersuasive, incredible, and improbable for a number of the following reasons, namely:
[a] Paragraph 10 of the Government Gazette in its instructive terms provides that “The Head of Department must, by 30 September of the year before that of implementation, provide to the Director – General an indication of-
(i) The types and number of posts that would be eligible for the incentive in terms of paragraph 8.1 and 8.2;
(ii) Percentage applicable to each type of incentive;
(iii) Levels or “steps” added to the percentage applicable to each type of incentive post and the criteria for qualifying for the various levels or “steps”.
(iv) The number of incentive posts that were created and to be paid out in kind and the description thereof, for example provision of free housing, provision of standardized vehicle, overseas study visits or study visits.
[43] Paragraph 11 of the same Government Gazette in the instructive terms, provides that “The Head of Department must, by 30 June of each year, provide to the Director-General a report of the incentive posts filled (by type and level and the amount spent) in the previous financial year. Paragraph 13 of the Gazette goes further and provides that “Whilst this Policy is to be implemented by the Heads of Provincial Education Departments it is the prerogative of the Minister of Education to monitor implementation and to progressively intervene in situations where Heads of Departments do not implement the provisions of the Policy and ensure spending in line with the allocations for Teacher Incentives (R500 Million) which have already been transferred to Provincial Education Departments.
[44] The Respondent presented a list of incentivised posts for incentivised posts for the period, 1 July 2008 to 31 December 2008 (Page 4 to Page 21 of Bundle B) the same document recorded that the actual costing for incentive posts could not be done due to budgetary constraints during the 2008 Financial Year. On the evidence before me, I do not find any factual basis to the effect that the Respondent complied with Paragraphs, 1, 2, 8.1, 8.2, 10 and 11 of the Government Gazette in relation to the current dispute before me. Based on the evidence placed before me, I find that the Applicants’ whose names appear on “Paragraph 37 and 38” of this Arbitration Award presented credible evidence in proving that the Respondent committed such alleged “unfair labour practice” against them as envisaged by section 186 (2) (a) of the Labour Relations Act.
[45] Furthermore, that the Respondent’s failure to pay the Applicants whose names appear on “Paragraph 37 and 38” of this Arbitration Award has been an ongoing (or a continuous) unfair labour practice. The Respondent’s attempts to deal with measures relating to its non-negotiable compliance to the Government Gazette by issuing Circulars 29 and 71 of 2017 as well as the Superintendent’s determination dated 15 November 2018 (Page 19, 25, 32, 40 and 45 of Bundle A) has been overtaken by events and is regrettable to say the very least.
[46] The Respondent was expected in terms of the Government Gazette to have acted in the manner it did towards the Applicants in this matter as 30 September 2008 engaged on the exercise it did as per copies of the two Circulars as well as the determination dated 15 November 2018. The Respondent’s instructive duty of compliance to the Government Gazette is clearly regulated in Paragraphs 1, 2, 10, 11 and 13 of the Government Gazette. The Respondent failed to carry out an instructive duty (as per Paragraphs 1, 2, 10, 11 and 13 of the Government Gazette. The Respondent’s failure to have carried such duty is in relation to the Applicants whose names appear on “Paragraph 37 and 38” of this Arbitration Award.
AWARD
[47] The Applicants whose names appear on “Paragraphs 37 and 38” of this Arbitration Award succeeded in making out a proper case of unfair labour practice (in relation to the Respondent’s failure to pay them the incentive scheme provided for in the Government Gazette No. 30678 which has been duly signed by the then Minister of Education, Honourable Grace Naledi Mandisa Pandor on 15 December 2007.
[48] The Respondent committed an unfair labour practice against the Applicants whose names appear on “Paragraphs 37 to 38” of this Arbitration Award.
[49] The Respondent’s failure to pay the Applicants the said incentive scheme has been an ongoing unfair labour practice in terms of Paragraphs 1, 2, 8.1, 8.2, 10, 11 and 13 of the Government Gazette read together with Paragraph 2 of Circulars 29 and 71 of 2017.
[50] The Respondent is ordered to pay the Applicants whose names appear on “Paragraphs 37 and 38” of the Arbitration Award their incentive scheme using the criteria provided for in “Paragraph 9 and 12” of the Government Gazette under consideration.
[51] Such payment must be made retrospectively to the date of publishment of the Government Gazette (that is 30 September 2008 as required by Paragraphs 10 to 13 of the Government Gazette).
[52] The above mentioned incentive scheme is payable to the Applicants whose names appear on “Paragraphs 37 and 38” of this Arbitration Award on or by no later than 30 September 2019 and shall attract interest in terms of section 143 (2) of the Labour Relations Act if it is not paid on or not later than the said date.
Signature:_
NTSEPENG MOOKAMEDI
(ELRC PANELLIST).
Province: Limpopo
Applicant: SADTU obo Charles Malope Chipu & 72 Others
Respondent: Department of Education (Limpopo Provincial Administration)
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Corner Hospital and Hans Van Rensburg Street, Polokwane, Limpopo Province
Award Date: 7 August 2019
Arbitrator: Ntsepeng Mookamedi
Case Number : PSES204 -19 / 20 LP
Panellist : Ntsepeng Mookamedi
Date of Award : 07 August 2019
In the matter between
SADTU obo Charles Malope Chipu & 72 Others
(Union / Applicant)
And
Department of Education (Limpopo Provincial Administration)
(Respondent)
Applicants’ representative : Mr Moraka Abel Makgaa
91 Biccard Street
Polokwane
0700
Telephone number : (015) 2915418
Fax number : (015) 2911667
Email address : thobjam@webmail.co.za
DETAILS OF THE HEARING AND REPRESENTATION.
[1] This is an Arbitration Award in the arbitration hearing between the Applicant Mr Charles Malope Chipu and 72 Others (the Applicants) and the Respondent, Department of Education, Limpopo Provincial Administration. The arbitration hearing took place on 24 July 2019 and was concluded on the same day. The hearing was conducted within the business premises of the Respondent at Corner Hospital and Hans Van Rensburg Street, Polokwane, Limpopo Province.
[2] The Applicants were represented by Mr Moraka Abel Makgaa, a Union Official from the South African Democratic Teachers Union, commonly referred to as “SADTU”. Prior to the commencement of the arbitration hearing, Mr Makgaa submitted that for purposes of promoting the best interest of the learners (being a continuous and an unhindered learning process) from the affected schools where the current dispute arose, SADTU decided to have one Applicant drawn from the five schools to attend the arbitration hearing.
[3] The Respondent also attended the arbitration hearing and was duly represented by Advocate Rudzani Makhema, an Assistant Director responsible for misconduct, disputes resolution and grievance handling. Advocate Makhema also supported Mr Makgaa’s submission in relation to the above arrangement in so far as the sixty seven co-Applicants’ arrangement in relation to their attendance at the arbitration hearing. Mr Makgaa submitted a signed attendance register which was accordingly signed by the remaining sixty seven co-Applicants at their respective schools for a reason related to Paragraph 2 of this Arbitration Award.
[4] The sixty seven co-Applicants’ delegation during the arbitration hearing consisted of Mesdames Victoria Legodi, Emma Mogoale and Masseurs Charles Malope Chipu, Oupa Thaba and Jacob Somo. The arbitration hearing was both mechanically as well as manually recorded. Prior to the commencement of the arbitration hearing, the Applicants’ submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle A”. The Applicant’s bundle ranged from “Page 01 until Page 60”.
[5] On the corresponding side, the Respondent submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle B”. The Respondent’s bundle of documents ranged from “Page 01 to Page 50”. The arbitration hearing is therefore decided on documentary as well as on oral evidence. At the conclusion of the arbitration hearing, both parties submitted written closing arguments on 31 July 2019. I have accordingly considered the totality of both parties’ written closing arguments which were more relevant to the current dispute in rendering this Arbitration Award.
NATURE OF THE DISPUTE.
[6] The dispute concerns an alleged unfair labour practice in relation to the Respondent’s failure to pay the Applicants incentives to academically qualifying educators in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 read together with Clause 9.1.2.1 of the ELRC’s Constitution (Part C, Dispute Resolution Procedures).
[7] The current dispute is primarily rooted in both section 186 (2) (a) of the LRA as well as Government Gazette No. 30678 which was duly signed by the then Minister of the Department of Education, Honourable Grace Naledi Mandisa Pandor on 15 December 2007 as well as the Respondent’s two Circulars, namely, Circular 29 of 2017 and Circular 71 of 2017. The two cited Circulars were duly signed by the Respondent’s Accounting Officer (Head of Department) on 16 February 2017 and 13 April 2017 respectively.
ISSUE TO BE DECIDED
[8] I am required to decide whether or not the Respondent committed any alleged labour practice in relation to having allegedly failed to pay the Applicants the benefits as provided for in Paragraph 8.1 of the above cited Government Gazette. Should I find that the Respondent’s action against the Applicants constitutes an unfair labour practice as alleged, I shall determine the appropriate relief.
BACKGROUND TO THE DISPUTE
[9] On 15 December 2007, the then Minister of Education, Honourable Minister Grace Naledi Pandor published a Government Gazette entitled “Improvement in conditions of service for educators employed in terms of the Employment of Educators Act, 1998: Teacher Incentives”. The said Government Gazette has in its principal purpose, geared towards the provision for payment of incentives to academically qualified educators by meeting certain prescribed criteria.
[10] The provision for the payment of such incentives to any such eligible academically qualifying educators is set out in Paragraphs, 1, 2, 8.1 and 8.2 of the Government Gazette respectively. The Applicants in this matter are employed by the Respondent as Educators in terms of the Employment of Educators Act 76 of 1998 and they all possess REQV 13 or higher (Relative Qualification Education Value) which is a postgraduate teaching qualification.
[11] Paragraph 10 of the same Gazette directed the Respondent’s Head of Department on or by no later than 30th September of the year before that of implementation, to provide to the Director-General of the Department of Education the following report, namely:
(a) The types and number of posts that would be eligible for the incentive in terms of Paragraphs 8.1 and 8.2 of the same Gazette.
(b) Percentage applicable to each type of incentive.
(c) Levels or “steps” added to the percentage applicable to each type of incentive post and the criteria for qualifying for the various levels or “steps”.
(d) The number of incentive posts that were created and to be paid out in kind and a description thereof, for example provision of free housing, provision of subsidized vehicle, overseas study visits or study visits.
[12] The Applicants consider themselves to be eligible for payment of such incentives in terms of the criteria set out in Paragraphs 1, 2, 8.1 and 8.2 of the above mentioned Government Gazette. The Applicants’ eligibility to such payment is said to be with effect from the date of publishment of the same Gazette. The Respondent’s Head of Department issued two Circulars on 16 February 2017 and 13 April 2017. The said Circulars were issued for purposes of making a determination of the qualifying criteria provided for in Paragraphs 8.1 and 8.2 of the Gazette. The Respondent issued a list of the schools whose posts were eligible for incentivization on the following periods, 01 January 2008 to 31 December 2008 and 01 July 2011 to 31 March 2012.
[13] The above list was issued to the exclusion of the Applicants’ schools in this matter, hence the Applicants’ referral of the dispute before the Education Labour Relations Council (the ELRC). The Applicants initially referred their dispute at the General Public Service Sectoral Bargaining Council and owing to lack of jurisdiction by the latter Council, the matter was transferred to the ELRC on 25 June 2019.
[14] The ELRC set the matter down for a pre-arbitration hearing process on 24 June 2019 in terms of Clause 17.2.3 of the ELRC’s Constitution. The matter was conciliated on the said day and remain unresolved where after a Certificate of non-resolution was issued. The Applicants later referred the dispute to arbitration level.
SURVEY OF EVIDENCE AND ARGUMENTS.
The Applicants’ case.
The Applicants’ only witness, Mr Charles Malope Chipu testified on behalf of his fellow co-Applicants under oath as follows:
[15] He is employed by the Respondent as an Educator at Maphetsa Primary School. His employment history with the Respondent dates back from 13 January 1995 where he was appointed at Post Level 1 (CS1 Educator’s Post). He was later promoted to the position of being a Departmental Head with effect from the period 01 September 2006. As from the period 01 July 2009, he was promoted to the position of being a Deputy Principal Educator at the same school. As from the period, 01 September 2018, he was appointed as an Acting Principal Educator. As at the time of the arbitration of the current dispute, he was still occupying the position of an Acting Principal Educator at the same school.
[16] Together with his seventy two co-Applicants, he meets all the requirements set for consideration to be paid the employment related incentives as provided for in Paragraphs 1, 2, 8.1 and 8.2. of the Government Gazette referred in Paragraph 7 of this Arbitration Award. Such employment related incentives became due and payable to him and his fellow Applicants with effect from 18 January 2008 (being the date on which the above cited Government Gazette became effective). The Applicants became aware about their eligibility for payment for the said benefits arising out of the same Government Gazette during a training session that was convened by SADTU’s Capricorn Regional Secretary Mr Thobja Munyai on 04 April 2019.
[17] The Applicants’ schools fall within the category of quintile 1 schools in terms of Paragraph 8.1 of the same Gazette. Paragraph 8.1 (b) of the same Gazette clearly defines a “quintile 1” schools being the 20% poorest schools. Proof of the Applicants’ schools being categorised under quintile 1 can be evidenced on the following Pages of the individual schools’ staff establishment as per “Bundle A” respectively, namely, “Page 19 (Maphetsa Primary School, Page 25 (Sealane Primary School), Page 32 (Phophedi Secondary School), Page 40 (Mamongao Primary School), and Page 45 (Scheiding Primary School). The said determination was duly made by the Respondent’s Superintendent General, Ms N.B Mutheiwana on 15 November 2018 respectively.
[18] He considers himself together with his co-Applicants to be in possession an academic qualification (Honours Degree in Bachelor of Education) which is an REQV14 qualification. He submitted a copy of a list of educators attached to his school (Maphetsa Primary School). Copy of such list was presented on “Page 22, 24, 39 and 50 of Bundle A”. Furthermore, the Applicants’ schools fall under the required weighted distance of 140 kilometres and more as determined by Paragraphs 2.1 and 2.2 of the Respondent’s Circulars 29 of 2017 and 71 of 2017 (Page 13 to 15 of Bundle A”. The closest metropolitan city is Pretoria with a raw distance of 347, 3 kilometres. The weighted distance from Maphetsa Primary School is 173 kilometres as per “Page 51 of Bundle A”.
[19] Sealane Primary School’s closest metropolitan is Pretoria with a raw distance of 346, 5 km while the weighted distance is at 214 kilometres. The same applies to Phophedi High School with its nearest metropolitan city being Pretoria and its raw distance recorded at 346,5 kilometres, but its weighted distance standing at 229 kilometres. Mamongao Primary School’s closest metropolitan is Pretoria with a raw distance of 321 kilometres and a weighted distance of 193 kilometres as per “Page 51 of Bundle A”.
[20] The Applicants’ in this matter managed to make a factual case for an unfair labour practice in relation to the Respondent’s legal obligation to pay them employment related benefits (teacher incentives) as regulated by section 186 (2) (a) of the Labour Relations Act 66 of 1995 read together with Paragraphs 1, 2, 8.1 and 8.2 of the Government Gazette. The Applicants referred me to the authority of Protekon (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2005) 26 ILJ 1105 (LC) in support of their case.
[21] In the Protekon judgment, the court in dealing with a similar dispute such as the one before me held that section 186 (2) (a) of the Labour Relations Act imposes an obligation on employers as regards the provisioning of benefits, to act fairly in circumstances where there is an obligation to do so, whether contractually or statutorily, as well as in circumstances where the employer exercises its discretionary powers in terms of its policies and rules in deciding whether or not an employee should be granted a benefit.
[22] The Protekon authority is applicable to this current dispute and its legal principle must be applied and observed in terms of the precedent system. The Applicants prayed for an Award that can order the Respondent to pay them the employment related benefits regulated in the above mentioned Government Gazette. Furthermore, that such payment be ordered to be paid to the Applicants retrospectively plus any accumulated interest in terms of the Prescribed Rate of Interest Act 55 of 1975 (as amended). In conclusion, that such employment related benefits be ordered to be paid to the Applicants for as long as the Applicants remain entitled to such benefits. The Applicants’ closed their case.
The Respondent’s case.
The only witness of the Respondent, Ms Annete Fielding testified under oath as follows:
[23] She is employed by the Respondent as a Deputy Director: Conditions of Service at the Provincial Office in Polokwane. She once participated in a process which dealt with complaints which related to teacher incentives in terms of the current Government Gazette. Such process also took into account whether or not the received complaints met the criteria set out in the Government Gazette which is the subject matter of the current arbitration hearing. During the first quarter, the Respondent received a database from the national Department of Education. Such database directed the Respondent to pay the teacher incentive benefits to schools identified in the received database.
[24] The national Department of Education developed the said database and communicated it to the Respondent guided by the above mentioned Government Gazette. The Applicants’ schools were not on the said database. On 12 June 2008 she generated a written submission to the Respondent’s then Head of Department, Reverend Z.C Nevhutalu. The said submission was approved by Reverend Nevhutalu and endorsed by the then Member of the Executive Council of Education in Limpopo, Dr Aaron Motsoaledi on 03 July 2008 respectively. She referred to a copy of such previously generated written submission on “Page 1 to Page 3 of Bundle B”. A copy of the said database was presented and relied upon as evidence on “Page 1 to Page 21 of Bundle B”.
[25] The actual financial costing of teacher incentive process for the period 1 July 2008 until 31 December 2008 could not be done during 2008 Financial Year. The said state of affairs was caused by the non-availability of Educators’ salaries as from the period 1 July 2008. A copy of the projected financial costing which could not be actualised as from 1 July 2008 was presented as evidence and relied upon on “Page 4 of Bundle B”. The Applicants’ posts linked to the five schools in this matter were not considered to be eligible to receive such teacher incentives.
[26] Even at the conclusion of this arbitration hearing, the Applicants’ linked posts were still not entitled to be incentivised. The Respondent acted fairly by not paying the Applicants any such incentives due to the fact that the Applicants’ posts are not eligible to be incentivised. None of the Respondent’s Educators were ever paid any such employment related incentive while using Circulars 29 and 71 of 2017. Only the Respondent’s Head of Department is vested with the necessary power to identify posts which are to be incentivised in terms of the Government Gazette under consideration. During the 2007/2008 Financial Year, the Respondent paid teacher incentives to a total of 6598 (Six Thousand Five Hundred and Ninety Eight) posts across Limpopo Provincial Administration.
[27] Since the coming into effect of the Government Gazette, the Respondent never received additional incentivised posts. The Applicants’ posts are not eligible for payment of incentive taking into account Paragraphs 14 and 15 of the current Government Gazette. Both Paragraphs 14 and 15 of the Government Gazette empower the national Minister of the Department of Education to declare qualifying posts for payment of teacher incentive on an annual basis. Since the year 2008, the Minister of the Department of Education has not made such declaration.
[28] During the period, 25 November 2009, she generated another written submission to the Respondent’s five Districts where the Respondent duly communicated to its Districts Management as to how the incentive programme was actualised to the specific schools as per the determination duly made by the Respondent’s Head of Department. The said communication strategy was developed after the Respondent received a number of complaints flowing from the implementation of the teacher incentives as per the Government Gazette. She referred to such copies of communication to the Respondent’s five Districts on “Page 42 to Page 46 of Bundle B”.
[29] The Applicants in this matter are not occupying incentivised posts which are eligible for payment of the benefits provided for in the Government Gazette. As such, the Applicants have not been subjected to any alleged unfair practice by the Respondent in terms of section 186 (2) (a) of the Labour Relations Act. The Respondent has never incentivised any Educators’ posts in terms of either Circular 29 of 2017 or let alone Circular 71 of 2017. During cross examination, she testified that:
[a] Before the Respondent’s issuance of both Circular 29 and 71 of 2017, posts which were identified for teacher incentivization were done on the basis of the Respondent’s misrepresentation of the current Government Gazette.
[b] Furthermore, that such misrepresentation of the Government Gazette took place during the 2010/2011 Financial Year and 2011/2012 Financial Year.
[c] She disputed the version put to her by Mr Makgaa to the effect that the role of the Minister of Education is to monitor the implementation of the current Government Gazette and not to allocate employment related incentives to the academically qualifying educators.
[d] She does not know the justification as to why the schools posts whose names appear on “Page 25 of Bundle B” were incentivised although their weighted distance fell below the minimum distance of 140 kilometres.
[e] Circular 27 of 2017 and Circular 71 of 2017 are relevant to the current dispute so as to prove measures which have been put in place by the Respondent in having considered certain posts for incentivization flowing from the Government Gazette.
[29] The Applicants failed to establish a factual case for unfair labour practice. As such, the Applicants’ case stands to be accordingly dismissed. The Respondent closed its case.
ANALYSIS OF EVIDENCE, ARGUMENTS AND FINDINGS
[30] Before I deal with the evidence as well as the parties’ evidence in relation to the main dispute before me, I had a duty to deal with the situation (physical non-attendance of the sixty seven co-Applicants) as per Paragraph 2 and 3 of this Arbitration Award. In the authority of Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC), the Constitutional Court expressed the legal principle that section 28 (2) of the Constitution of the Republic of South Africa, 1996 imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions.
[31] The court went further that courts and arbitrators are bound to give consideration to the effect their decisions will have on children’s lives. I have accordingly considered the sixty seven co-Applicants’ situation as per Paragraph 2 and 3 of this Arbitration Award to the legal principle as set out in the authority cited in Paragraph 30 of this Arbitration Award. The legal principle expressed in the Governing Body decision finds legal application in the current matter in so far as the physical attendance of the sixty seven co-Applicants is concerned. I have therefore aligned myself with the same legal principle in dealing with the current dispute before me.
[32] Turning to the issue relating to the primary dispute in this matter, the point of departure in any alleged unfair labour practice dispute is that the Applicants’ have a duty to establish the existence of any such alleged unfair labour practice which has been allegedly committed by the Respondent in this matter. Once such onus of proof is factually established, the onus will then shift to the employer, (being the Respondent in this matter) to factually prove that the conduct in question was exercised in a fair manner. Fairness requires an evaluation that is multidimensional (see Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) at paragraph 127).
[33] In the matter of National Union of Metalworkers of South Africa v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (A) 589C-D; National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) at paragraphs 32 and 33, the court expressed the legal principle that the fairness required in the determination of any alleged unfair labour practice must be fairness towards both the employee (being the Applicants in this matter) and the employer (being the Respondent in this matter). I have accordingly aligned myself with the same legal principle in dealing with the current dispute before me. The Applicants’ evidence in chief which has been tendered by one witness, Mr Charles Malope Chipu was to the effect that the Respondent committed an unfair labour practice against the Applicants by failing to pay them the employment related benefits in terms of Paragraphs 1, 2, 8.1 and 8.2 of the Government Gazette under consideration read together with Paragraph 2 of the Respondent’s Circulars 29 and 71 of 2017.
[34] Mr Chipu’s evidence, representing those of his seventy two fellow Applicants assessed in its material totality, was to the effect that Paragraphs 1, 2, 8.1 and 8.2 of the abovementioned Government Gazette read together with Paragraph 2 of Circulars 29 and 71 issued by the Respondent finds application to the Applicants’ case. Furthermore, that the above cited paragraphs of the Government Gazette read in conjunction with Circulars 29 and 71 of 2017 have not been accordingly complied by the Respondent in the payment of teacher incentives to other fellow Educators to the Applicants’ exclusion. On the corresponding side, the Respondent refuted the Applicants’ allegation pertaining to the current dispute.
[35] I have accordingly considered the Applicants’ evidence in its totality, but most importantly, based on Paragraphs 1, 2, 8.1 and 8.2 of the Government Gazette as well as Paragraph 2 of the above mentioned Circulars as strongly argued by the Applicants in their assertion as the basis for the Applicants’ unfair labour practice claim, being the subject matter of the current dispute in terms of section 186 (2) (a) of the Labour Relations Act. Paragraph 1 of the Government Gazette provides that “This incentive scheme is limited to fully qualified (REQV 13 or higher) paid educators in schools as defined in the Employment of Educators Act (1998). It excludes any educator subjected to another agreement or directive, rehabilitation posting, suspension without pay or absent without pay”.
[36] Paragraph 2 of the same Government Gazette goes further and provides that “A post or certain posts at a school will be identified to be eligible for incentives in accordance with criteria set out in paragraph 8.1 and 8.2”. Having considered the totality of the Applicants evidence, I find the Applicants’ evidence in relation to the following list of Applicants to be factually relevant, probable and credible as it relates to the dispute before me. As a consequent hereof, I find that the Respondent committed an unfair labour practice in relation to the following list of Applicants in terms of the Government Gazette read together with the two cited Circulars. The list of the Applicants against whom the Respondent committed an unfair labour practice as per Paragraph 1, 2, 8.1 and 8.2 of the Government Gazette read together with Paragraph 2 of the two cited Circulars and who in terms of the evidence placed before me possessed the following educational qualification are as follows:
[37] The Applicants who in terms of uncontested evidence before me and who possess an academic qualification (REQV13 or more) (Honours in Bachelor of Education Management) were Mr Charles Malope Chipu, M.W Makgato, K.I Makgoatha, M.N Makgoka ,N.S Mamabolo, T.M Mashalane, M.N Mathekga, T.L Matsoku, C.G Mokobane, M.S Mokukwane, M.P Moleya, M.D Ramaphakela, R.W Tsiri, L.M Hopane, M.J Masekela (Bachelor of Technology) ,K.W Mmethi (Bachelor of Administration), M.M Lehong (Bachelor of Education in Management),M.S Rampedi (Higher Education Diploma and V Madisha (Bachelor of Education in Management). The above list of Applicants is attached to Maphetsa Primary School as per “Page 22 to 23 of Bundle A”. The school’s staff establishment as a “Quintile 1 school” was determined by the Respondent’s Superintendent General (Ms N.B Mutheiwana) on 15 November 2018 (see Page 19 of Bundle A respectfully).
[38] Educators attached to Scheiding Primary School who according to uncontested evidence before me and who possess the required academic qualification (REQV 14, safe for R.B Masete who possess (RQEV 13) and are eligible for payment of the incentive scheme are (M.R Moroaswi), K.D Maimela, R.C Malahlela, R.G Ntsoane, T.M Motebejane, R.A Makola, M.A Makgai, T.E Matemane, O.P Thaba, M.S Kganane, M.J Mogoba and R.E Mogoale. Although I find that the Respondent’s Superintendent General arrived at the same determination as per the Government Gazette in relation to Phophedi Primary School, Sealane Primary School, Mamongao Primary School, Scheiding schools establishments as per “Page 25, 32, 40 and 45 of “Bundle A” on 15 November 2018, Mr Chipu did not provide any factual evidence to prove that his fellow Applicants attached to Phophedi, Sealane and Mamongao Primary Schools possess the academic qualifications as required by Paragraph 1 of the Government Gazette.
[39] As a result thereof, I only made a finding on the Applicants whose posts met all the set out requirements in the Government Gazette read together with the two Circulars in this matter. The absence of any evidence to the effect that the Applicants attached to Phophedi, Sealane and Mamongao Primary Schools possessed REQV 13 or more academic qualification leaves me with no option but to exclude them in making a finding as to whether the Respondent committed an unfair labour practice against the Applicants attached to such schools in this matter. The Applicants whose names appear on “Paragraph 37 and 38” of this Arbitration Award, being the party who alleged that they are the victims of an alleged unfair labour practice had a statutory duty to prove such a claim on the balance of probabilities (see the authority expressed in Ethekwini Municipality v SA Local Government Bargaining Council & others [2009] JOL 23625 (LC).
[40] Having considered the Applicants’ evidence whose names appear on “Page 37 and 38” of this Arbitration Award, and guided by the legal principle espoused in the Protekon judgment, the ineluctable conclusion I am able to arrive at is that the Applicants succeeded in making a factual case of unfair labour practice in relation to the Respondent’s failure to pay them the incentive scheme regulated in the Government Gazette being under consideration. Having succeeded in factually having discharged such statutory regulated onus, the Respondent had a similar duty to prove that the decision not to pay such incentive scheme was made in a substantially fair manner. Throughout the entire arbitration proceeding, Respondent had just been in denial mode that the Applicants posts whose names appear on “Page 37 and 38” of this Arbitration Award are entitled for payments in terms of the Government Gazette.
[41] The evidence of the Respondent’s only witness (Ms Annette Fielding) during evidence in chief (on Page 26) of this Arbitration Award recorded that none of the Applicants posts involved in this matter qualifies to be incentivised in terms of the Government Gazette under consideration. Furthermore, that none of the Respondent’s Educators were ever paid any employment benefits arising from the Government Gazette in terms of Circulars 29 and 71 of 2017. Strange enough, the evidence of Ms Fielding on “Page 29” of this Arbitration Award recorded that during 2008/2009 Financial Year, the Respondent paid the same incentive scheme to 6598 posts across Limpopo’s Provincial Administration. Furthermore, that such incentive scheme was paid to the qualifying schools in terms of the Government Gazette and that the Applicants’ schools did not qualify for such incentive scheme.
[42] Ms Fielding’s evidence in chief further recorded that only the Respondent’s Head of Department (the Superintendent General to be precise) is the only person upon whose responsibility, the duty to make a determination in terms of posts that are eligible for payment of the incentive scheme resides. Furthermore, that “Paragraphs 14 and 15” of the Government Gazette empowers the Minister of Education to declare qualifying posts at specific schools to be eligible for payment of the incentive scheme in terms of the criteria articulated in the Government Gazette. After having considered the Respondent’s evidence in its totality, I find the Respondent’s evidence to be factually flawed, weak, totally unpersuasive, incredible, and improbable for a number of the following reasons, namely:
[a] Paragraph 10 of the Government Gazette in its instructive terms provides that “The Head of Department must, by 30 September of the year before that of implementation, provide to the Director – General an indication of-
(i) The types and number of posts that would be eligible for the incentive in terms of paragraph 8.1 and 8.2;
(ii) Percentage applicable to each type of incentive;
(iii) Levels or “steps” added to the percentage applicable to each type of incentive post and the criteria for qualifying for the various levels or “steps”.
(iv) The number of incentive posts that were created and to be paid out in kind and the description thereof, for example provision of free housing, provision of standardized vehicle, overseas study visits or study visits.
[43] Paragraph 11 of the same Government Gazette in the instructive terms, provides that “The Head of Department must, by 30 June of each year, provide to the Director-General a report of the incentive posts filled (by type and level and the amount spent) in the previous financial year. Paragraph 13 of the Gazette goes further and provides that “Whilst this Policy is to be implemented by the Heads of Provincial Education Departments it is the prerogative of the Minister of Education to monitor implementation and to progressively intervene in situations where Heads of Departments do not implement the provisions of the Policy and ensure spending in line with the allocations for Teacher Incentives (R500 Million) which have already been transferred to Provincial Education Departments.
[44] The Respondent presented a list of incentivised posts for incentivised posts for the period, 1 July 2008 to 31 December 2008 (Page 4 to Page 21 of Bundle B) the same document recorded that the actual costing for incentive posts could not be done due to budgetary constraints during the 2008 Financial Year. On the evidence before me, I do not find any factual basis to the effect that the Respondent complied with Paragraphs, 1, 2, 8.1, 8.2, 10 and 11 of the Government Gazette in relation to the current dispute before me. Based on the evidence placed before me, I find that the Applicants’ whose names appear on “Paragraph 37 and 38” of this Arbitration Award presented credible evidence in proving that the Respondent committed such alleged “unfair labour practice” against them as envisaged by section 186 (2) (a) of the Labour Relations Act.
[45] Furthermore, that the Respondent’s failure to pay the Applicants whose names appear on “Paragraph 37 and 38” of this Arbitration Award has been an ongoing (or a continuous) unfair labour practice. The Respondent’s attempts to deal with measures relating to its non-negotiable compliance to the Government Gazette by issuing Circulars 29 and 71 of 2017 as well as the Superintendent’s determination dated 15 November 2018 (Page 19, 25, 32, 40 and 45 of Bundle A) has been overtaken by events and is regrettable to say the very least.
[46] The Respondent was expected in terms of the Government Gazette to have acted in the manner it did towards the Applicants in this matter as 30 September 2008 engaged on the exercise it did as per copies of the two Circulars as well as the determination dated 15 November 2018. The Respondent’s instructive duty of compliance to the Government Gazette is clearly regulated in Paragraphs 1, 2, 10, 11 and 13 of the Government Gazette. The Respondent failed to carry out an instructive duty (as per Paragraphs 1, 2, 10, 11 and 13 of the Government Gazette. The Respondent’s failure to have carried such duty is in relation to the Applicants whose names appear on “Paragraph 37 and 38” of this Arbitration Award.
AWARD
[47] The Applicants whose names appear on “Paragraphs 37 and 38” of this Arbitration Award succeeded in making out a proper case of unfair labour practice (in relation to the Respondent’s failure to pay them the incentive scheme provided for in the Government Gazette No. 30678 which has been duly signed by the then Minister of Education, Honourable Grace Naledi Mandisa Pandor on 15 December 2007.
[48] The Respondent committed an unfair labour practice against the Applicants whose names appear on “Paragraphs 37 to 38” of this Arbitration Award.
[49] The Respondent’s failure to pay the Applicants the said incentive scheme has been an ongoing unfair labour practice in terms of Paragraphs 1, 2, 8.1, 8.2, 10, 11 and 13 of the Government Gazette read together with Paragraph 2 of Circulars 29 and 71 of 2017.
[50] The Respondent is ordered to pay the Applicants whose names appear on “Paragraphs 37 and 38” of the Arbitration Award their incentive scheme using the criteria provided for in “Paragraph 9 and 12” of the Government Gazette under consideration.
[51] Such payment must be made retrospectively to the date of publishment of the Government Gazette (that is 30 September 2008 as required by Paragraphs 10 to 13 of the Government Gazette).
[52] The above mentioned incentive scheme is payable to the Applicants whose names appear on “Paragraphs 37 and 38” of this Arbitration Award on or by no later than 30 September 2019 and shall attract interest in terms of section 143 (2) of the Labour Relations Act if it is not paid on or not later than the said date.
Signature:_
NTSEPENG MOOKAMEDI
(ELRC PANELLIST).