PSES155-18/19EC
PSES155-18/19EC
Award Date:
21 May 2019
Case Number: PSES155-18/19EC
Province: Eastern Cape
Applicant: PSA obo Mayiya and others
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Department of Education District Offices, Ngcobo
Award Date: 21 May 2019
Arbitrator: Henk Jacobs
Case Number: PSES155-18/19EC
Commissioner: Henk Jacobs
Date of Ruling: 21 May 2019
In the matter between
PSA obo Mayiya and others
(Applicant)
And
Department of Education Eastern Cape
(Respondent)
Union/Applicant’s representative:
Gilbert Seakamela
Telephone: 082 903 6804
Telefax: 047 501 2512
E-mail: Gilbert.seakamela@psa.co.za
Respondent’s representative: Asaduma Buyana
Respondent’s address: Private Bag X0032
Bisho
5606
Telephone: 083 372 6768
Telefax: 040 608 4313
E-mail: Asaduma.buyana@ecdoe.gov.za
Details of hearing and representation
1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), was held at the Department of Education District Offices, Ngcobo on 11 April 2019.
2 The applicants, Mayiya and others were represented by Mr Gilbert Seacamela, a Labour Relations Officer employed by the Public Service Association. The respondent, the Department of Education Eastern Cape, was represented by Mr Asaduma Buyana, a Labour Relations Officer employed by the Respondent.
3 The hearing was held in English and was digitally recorded.
4 At the proceedings, the parties agree that all the facts of this dispute are common cause and in the interest of time, the parties agreed to file arguments with respect to each party’s case for consideration.
Issue to be decided
9. The issue to be decided is whether or not the Applicants were subject to an unfair labour practice in relation to benefits, and if so, to determine the appropriate relief.
Background to the matter
10. The Applicants are employed by the Respondent as Educators in different districts and lodged a grievance with regards to them not considered for the rural allowance. The matter was thereafter referred to the ELRC on 26 June 2018, on 29 January 2019, during the third arbitration sitting, the Respondent raised a jurisdictional issue wherein it is stated that the dispute does not relate to an unfair labour practice dispute in terms of section 186(2)(a) of the LRA.
11. A jurisdictional ruling was issued that categorised the dispute as an unfair labour practice dispute and subsequently, that the ELRC has jurisdiction to arbitrate the dispute. The matter was previously heard by Commissioner Bantwini.
12. The following issued were common cause, even if the Applicants in their submissions placed some under issues in dispute. It is common cause that all the Applicants qualify in terms of the minimum qualifications (REQV 13) for the said allowance. That their schools were identified to receive the rural allowance for the period 2019 to 2010. That they were excluded from receiving the rural allowance since 20 January 2017. That the reason for the exclusion was based on a decision taken in the Eastern Cape Provincial Education Chamber. That the payment of Incentives to educators is Gazetted under Government Gazette no: 30678, dated 18 January 2008, after it was signed by the Minister of Education on 15 December 2017 for public comment. That the Applicants schools are situated far from towns that provide reasonable facilities, services and amenities.
13. The Applicants sought for the rewarded the rural allowance retrospectively.
14. The parties submitted bundles of documents which they relied on during the proceedings and all documents were accepted to be what they purports to be.
Survey of submissions and arguments
20. This is a summary and does not reflect all the submissions and arguments submitted for considering in reaching a decision.
Applicant’s submissions and arguments
21. The Applicants submit that the Government Gazette no: 30678 on page 26, clause 8.1(a) defines remoteness of the school, or how far the school is situated from the nearest town. Such a town should have all the basic facilities and services that a teacher would need to have access to. The Head of Department should identify towns in, near or bordering the province, that complies with these requirements and distance by road, from each school to the nearest town.
22. That the Applicants schools’ distances by road from the nearest towns are 32 and 43 kilometres and that there are other schools, with the same road distances who are incentivised.
23. That the Department of Education failed to comply with the requirements in terms of the Government Gazette, instead, they referred the decision to Chamber and that decision not bound the Applicants. It was further submitted that the Department of Education further failed to comply with clauses 10 and 11 of the Government Gazette for the years 2016 and 2017.
24. That the decision taken at Chamber does not constitute a Collective Agreement and that the decision was clearly wrong as the Applicants schools were included for the year 2019 to 2020.
Respondents evidence
25. The Respondent submits that the implementation of the rural incentive scheme as per Government Gazette No: 30678 in the Eastern Cape, was done through a Chamber process where all parties were present, namely PELRC, CTU-ATU and SADTU and that these parties by virtue of their position, was mandated to represent their members. That since the inception of the initiative, parties could not find each other on the criteria to be used for selection and implementation, as a result, it was only implemented in 2013 after all parties to Chamber agreed to use the following criteria and tools for the selection of the beneficiaries of the scheme.
26. That the criteria used was that of district ruralness, coupled with the National Department of Basic Education database on Eastern Cape schools, and their linear distance to the closest identified towns. That it was also agreed to incentivise all the PPN declared posts of selected schools, rather than only certain category posts.
27. That the schools to this dispute did not meet the qualifying criteria and that the majority of the Applicants are members of SADTU or CTU-ATU, and was thus represented in Chamber with mandates to select and agree on the implementation of the incentive scheme as per decision of Chamber on all matters pertaining to the Rural Incentive Scheme.
28. That section 186(2)(a) of the LRA states that an unfair labour practice means and act or omission that arises between employer and an employee and that a Chamber decision is not an employer’s decision as the employer is only a party to Chamber.
Reply
29. In reply the Applicants submit that the Government Gazette authorised the Head of Department to Identify towns and to determine distance by road, that the Respondent deviated from this and that the decision taken by Chamber is not binding to parties. The Applicants also attached the Memorandum dates 10 December 2018 wherein it was confirmed that a Chamber decision was reached to use Scenario C in identifying rural schools.
Analysis
30. Most of the events are common cause, save from whether the events constitute an unfair labour practice as envisaged in section 186(2)(a) of the LRA.
31. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practices. Employees who claim that they were subjected to unfair labour practice must prove such allegations.
32. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to benefits” in this instance.
33. The Applicants claim that the allocation of the rural incentive scheme is guided by the Government Gazette and that the Respondent failed to comply with same, and as such, excluded the Applicants from benefitting in terms of the Rural Incentive Scheme.
34. The Respondent claims that the Department of Education, Eastern Cape, decided to refer the decisions on how the implement the Rural Incentive Scheme to Chamber, whereat the Respondent was only a party to the decision as well as CTU-ATU and SADTU who was mandated to represent their members (the educators and Applicants in this instance) at the time, and that such decision cannot form a claim under an unfair labour practice dispute.
35. The definition in terms of section 186(2) makes specific reference to an act that arises between an employer and an employee involving unfair conduct by the employer. The unfair conduct complaint about in this instance is the Chamber decision that was taken on how to define ruralness, and what measures to implement to give effect to the Rural Incentive Scheme in terms of the Government Gazette. In order to constitute an unfair labour practice, the act or omission complained about must be by an employer against its own employees. This was not the case in this instance.
36. In Eskom Holdings Ltd v NUM obo Kyaya [2017] 8 BLLR 797 (LC) the court had to determine whether employees were entitled to be upgraded. The court said in para [89] that:
“It is difficult to understand, in the above context, how it can be said that applicant acted unfairly towards the individual respondents. The fact that the individual respondents may disagree with the grading attached to their position because of the nature of their work and the duties they perform simply does not matter. There was no evidence by the individual respondents or even any case that the grading of T 10 attached to their positions was improperly arrived at, wrong or for example in breach of the applicant’s policies. What matters, beyond doubt is that this grading was properly considered and debated by all stakeholders, agreed to, and then graded by the Job Evaluation Committee accordingly, leading to a grading of the individual respondents’ position at T 10. Accordingly, the high water mark of the individual respondent’s case is that they did not agree that their positions were a T 10 grade. Such disagreement simply cannot successfully find a case for an unfair labour practice.”
37. It is the Applicants contention that the Respondent did not comply with the provisions of the Government Gazette guiding the implementation of the Rural Incentive Scheme, thus the decision to exclude the Applicants initially were improperly arrived at. Whether that is so or not, it cannot form part of an unfair labour practice dispute. The guideline in terms of the Government Gazette No: 30678 becomes a policy as stated in clause 13, and we do not hold the power to interpret policy documents.
38. What is evident from the above matter is that a decision was taken by all stakeholders and was agreed to, same as in the matter before me. It is important to note that it is common cause that the decision regarding the Rural Incentive Scheme for the Eastern Cape was concluded in Chamber. It is common cause that Chamber consists of representatives of all stakeholders, that is, all recognised trade unions representing its members, as well as the employer. It is further so, that decisions taken in Chamber does not constitute a Collective Agreement in terms of the LRA. However, that is not the point, as the issue of a Collective Agreement was rebated by the Applicants. What is important is to note is that the decision was taken collectively by all stakeholders and thus, the unhappiness of the excluded educators, cannot find a case for an unfair labour practice as the individual Respondent did not commit an act or omission.
39. In light of the above, I find it appropriate to make the following award.
Award
40. The Applicants claim that the Respondent committed an unfair labour practice in terms of section 186(2)(a) is dismissed.
41. The Applicants are not entitled to any form of relief.
Signature:
Commissioner: Henk Jacobs
Province: Eastern Cape
Applicant: PSA obo Mayiya and others
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Department of Education District Offices, Ngcobo
Award Date: 21 May 2019
Arbitrator: Henk Jacobs
Case Number: PSES155-18/19EC
Commissioner: Henk Jacobs
Date of Ruling: 21 May 2019
In the matter between
PSA obo Mayiya and others
(Applicant)
And
Department of Education Eastern Cape
(Respondent)
Union/Applicant’s representative:
Gilbert Seakamela
Telephone: 082 903 6804
Telefax: 047 501 2512
E-mail: Gilbert.seakamela@psa.co.za
Respondent’s representative: Asaduma Buyana
Respondent’s address: Private Bag X0032
Bisho
5606
Telephone: 083 372 6768
Telefax: 040 608 4313
E-mail: Asaduma.buyana@ecdoe.gov.za
Details of hearing and representation
1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), was held at the Department of Education District Offices, Ngcobo on 11 April 2019.
2 The applicants, Mayiya and others were represented by Mr Gilbert Seacamela, a Labour Relations Officer employed by the Public Service Association. The respondent, the Department of Education Eastern Cape, was represented by Mr Asaduma Buyana, a Labour Relations Officer employed by the Respondent.
3 The hearing was held in English and was digitally recorded.
4 At the proceedings, the parties agree that all the facts of this dispute are common cause and in the interest of time, the parties agreed to file arguments with respect to each party’s case for consideration.
Issue to be decided
9. The issue to be decided is whether or not the Applicants were subject to an unfair labour practice in relation to benefits, and if so, to determine the appropriate relief.
Background to the matter
10. The Applicants are employed by the Respondent as Educators in different districts and lodged a grievance with regards to them not considered for the rural allowance. The matter was thereafter referred to the ELRC on 26 June 2018, on 29 January 2019, during the third arbitration sitting, the Respondent raised a jurisdictional issue wherein it is stated that the dispute does not relate to an unfair labour practice dispute in terms of section 186(2)(a) of the LRA.
11. A jurisdictional ruling was issued that categorised the dispute as an unfair labour practice dispute and subsequently, that the ELRC has jurisdiction to arbitrate the dispute. The matter was previously heard by Commissioner Bantwini.
12. The following issued were common cause, even if the Applicants in their submissions placed some under issues in dispute. It is common cause that all the Applicants qualify in terms of the minimum qualifications (REQV 13) for the said allowance. That their schools were identified to receive the rural allowance for the period 2019 to 2010. That they were excluded from receiving the rural allowance since 20 January 2017. That the reason for the exclusion was based on a decision taken in the Eastern Cape Provincial Education Chamber. That the payment of Incentives to educators is Gazetted under Government Gazette no: 30678, dated 18 January 2008, after it was signed by the Minister of Education on 15 December 2017 for public comment. That the Applicants schools are situated far from towns that provide reasonable facilities, services and amenities.
13. The Applicants sought for the rewarded the rural allowance retrospectively.
14. The parties submitted bundles of documents which they relied on during the proceedings and all documents were accepted to be what they purports to be.
Survey of submissions and arguments
20. This is a summary and does not reflect all the submissions and arguments submitted for considering in reaching a decision.
Applicant’s submissions and arguments
21. The Applicants submit that the Government Gazette no: 30678 on page 26, clause 8.1(a) defines remoteness of the school, or how far the school is situated from the nearest town. Such a town should have all the basic facilities and services that a teacher would need to have access to. The Head of Department should identify towns in, near or bordering the province, that complies with these requirements and distance by road, from each school to the nearest town.
22. That the Applicants schools’ distances by road from the nearest towns are 32 and 43 kilometres and that there are other schools, with the same road distances who are incentivised.
23. That the Department of Education failed to comply with the requirements in terms of the Government Gazette, instead, they referred the decision to Chamber and that decision not bound the Applicants. It was further submitted that the Department of Education further failed to comply with clauses 10 and 11 of the Government Gazette for the years 2016 and 2017.
24. That the decision taken at Chamber does not constitute a Collective Agreement and that the decision was clearly wrong as the Applicants schools were included for the year 2019 to 2020.
Respondents evidence
25. The Respondent submits that the implementation of the rural incentive scheme as per Government Gazette No: 30678 in the Eastern Cape, was done through a Chamber process where all parties were present, namely PELRC, CTU-ATU and SADTU and that these parties by virtue of their position, was mandated to represent their members. That since the inception of the initiative, parties could not find each other on the criteria to be used for selection and implementation, as a result, it was only implemented in 2013 after all parties to Chamber agreed to use the following criteria and tools for the selection of the beneficiaries of the scheme.
26. That the criteria used was that of district ruralness, coupled with the National Department of Basic Education database on Eastern Cape schools, and their linear distance to the closest identified towns. That it was also agreed to incentivise all the PPN declared posts of selected schools, rather than only certain category posts.
27. That the schools to this dispute did not meet the qualifying criteria and that the majority of the Applicants are members of SADTU or CTU-ATU, and was thus represented in Chamber with mandates to select and agree on the implementation of the incentive scheme as per decision of Chamber on all matters pertaining to the Rural Incentive Scheme.
28. That section 186(2)(a) of the LRA states that an unfair labour practice means and act or omission that arises between employer and an employee and that a Chamber decision is not an employer’s decision as the employer is only a party to Chamber.
Reply
29. In reply the Applicants submit that the Government Gazette authorised the Head of Department to Identify towns and to determine distance by road, that the Respondent deviated from this and that the decision taken by Chamber is not binding to parties. The Applicants also attached the Memorandum dates 10 December 2018 wherein it was confirmed that a Chamber decision was reached to use Scenario C in identifying rural schools.
Analysis
30. Most of the events are common cause, save from whether the events constitute an unfair labour practice as envisaged in section 186(2)(a) of the LRA.
31. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practices. Employees who claim that they were subjected to unfair labour practice must prove such allegations.
32. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to benefits” in this instance.
33. The Applicants claim that the allocation of the rural incentive scheme is guided by the Government Gazette and that the Respondent failed to comply with same, and as such, excluded the Applicants from benefitting in terms of the Rural Incentive Scheme.
34. The Respondent claims that the Department of Education, Eastern Cape, decided to refer the decisions on how the implement the Rural Incentive Scheme to Chamber, whereat the Respondent was only a party to the decision as well as CTU-ATU and SADTU who was mandated to represent their members (the educators and Applicants in this instance) at the time, and that such decision cannot form a claim under an unfair labour practice dispute.
35. The definition in terms of section 186(2) makes specific reference to an act that arises between an employer and an employee involving unfair conduct by the employer. The unfair conduct complaint about in this instance is the Chamber decision that was taken on how to define ruralness, and what measures to implement to give effect to the Rural Incentive Scheme in terms of the Government Gazette. In order to constitute an unfair labour practice, the act or omission complained about must be by an employer against its own employees. This was not the case in this instance.
36. In Eskom Holdings Ltd v NUM obo Kyaya [2017] 8 BLLR 797 (LC) the court had to determine whether employees were entitled to be upgraded. The court said in para [89] that:
“It is difficult to understand, in the above context, how it can be said that applicant acted unfairly towards the individual respondents. The fact that the individual respondents may disagree with the grading attached to their position because of the nature of their work and the duties they perform simply does not matter. There was no evidence by the individual respondents or even any case that the grading of T 10 attached to their positions was improperly arrived at, wrong or for example in breach of the applicant’s policies. What matters, beyond doubt is that this grading was properly considered and debated by all stakeholders, agreed to, and then graded by the Job Evaluation Committee accordingly, leading to a grading of the individual respondents’ position at T 10. Accordingly, the high water mark of the individual respondent’s case is that they did not agree that their positions were a T 10 grade. Such disagreement simply cannot successfully find a case for an unfair labour practice.”
37. It is the Applicants contention that the Respondent did not comply with the provisions of the Government Gazette guiding the implementation of the Rural Incentive Scheme, thus the decision to exclude the Applicants initially were improperly arrived at. Whether that is so or not, it cannot form part of an unfair labour practice dispute. The guideline in terms of the Government Gazette No: 30678 becomes a policy as stated in clause 13, and we do not hold the power to interpret policy documents.
38. What is evident from the above matter is that a decision was taken by all stakeholders and was agreed to, same as in the matter before me. It is important to note that it is common cause that the decision regarding the Rural Incentive Scheme for the Eastern Cape was concluded in Chamber. It is common cause that Chamber consists of representatives of all stakeholders, that is, all recognised trade unions representing its members, as well as the employer. It is further so, that decisions taken in Chamber does not constitute a Collective Agreement in terms of the LRA. However, that is not the point, as the issue of a Collective Agreement was rebated by the Applicants. What is important is to note is that the decision was taken collectively by all stakeholders and thus, the unhappiness of the excluded educators, cannot find a case for an unfair labour practice as the individual Respondent did not commit an act or omission.
39. In light of the above, I find it appropriate to make the following award.
Award
40. The Applicants claim that the Respondent committed an unfair labour practice in terms of section 186(2)(a) is dismissed.
41. The Applicants are not entitled to any form of relief.
Signature:
Commissioner: Henk Jacobs