PSES245-16/17LP
PSES245-16/17LP
Award Date:
15 October 2016
Case Number: PSES245-16/17LP
Province: Limpopo
Applicant: JOHANNES SEHLOROANE MAKHURA
Respondent: Department of Education Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Voorwarts Building, corner Hospital and Hans van Rensburg Streets, Polokwane
Award Date: 15 October 2016
Arbitrator: M NAIDOO
Case No PSES245-16/17LP
In the matter between
JOHANNES SEHLOROANE MAKHURA Applicant
And
LIMPOPO DEPARTMENT OF EDUCATION Respondent
ARBITRATOR: M NAIDOO
HEARD: 15 SEPTEMBER 2016
DELIVERED: 15 OCTOBER 2016
AWARD
Details of hearing and representation
[1] The arbitration proceedings took place on 15 September 2016 at the offices of the respondent, Voorwarts Building, corner Hospital and Hans van Rensburg Streets, Polokwane. The proceedings were mechanically recorded. The applicant, Mr Johannes Sehloroane Makhura, was present and represented by Mr S Rangoanasha, an attorney of the law firm Rangoanasha Incorporated. The respondent, the Limpopo Department of Education, was represented by Mr R Makhema, its assistant director: labour relations. The proceedings were conducted in English. No interpretation services were used.
Issues to be decided
[2] I am required to interpret the provisions relating to the grading of schools as directed by the Education Labour Relations Council Collective Agreement Number 3 of 2006 (“the collective agreement”) against the provisions of the provisions relating to the grading of institutions as directed by the Personnel Administrative Measures (“PAM”) published by the Minister of Education (“the Minister”) in terms of section 4 of the Employment of Educators Act 1998, as amended (“the PAM”), to determine whether the respondent correctly graded the applicant to be on salary level P2, as opposed to being on P3, when it appointed him as principal of the CM Sehlapelo Primary School (“the school”).
Background to the issues in dispute.
[3] The applicant has been employed with the respondent as a principal at the school since 2014. The post was graded by the respondent at the salary level P2 on the criterion that the school was allocated eight educator posts. The applicant concedes that the school was allocated eight educator posts but avers that the post should have been graded at the salary level of P3 on the criterion that the school has more than 160 registered learners. The respondent concedes that the school has, since 2014, had more than 160 registered leaners.
[4] On 28 July 2016 the applicant referred a “promotion/appointment” dispute with the Education Labour Relations Council (ELRC) The dispute was conciliated on 19 August 2016 and remained unresolved. A certificate of outcome was issued accordingly.
[5] The arbitration was set down for 15 September 2016. The parties’ representatives explained to me that there was no dispute on the material facts associated with the dispute. The parties conceded that the dispute is one of interpretation and application.
Summary of the evidence and arguments
[6] The parties made opening statements. The parties submitted a two bundles of documents. No one testified. By agreement with the parties, I issued a ruling on record directing the parties to deliver closing arguments by 20 September 2016 and, by 23 September 2016, to deliver any supplementary closing arguments, if they so desired.
[7] When the parties made their submission, during the opening statement stage, I engaged with them with a view to narrowing the issues in dispute.
[8] The parties explained that the applicant was appointed to his current post as principal of the school in 2014. At the time the respondent had graded the post at the salary level P2. This was because the respondent had allowed only eight educator posts for the school. This remained to be the case to the current year.
[9] The respondent justified the grading on the strength of clause 4.1 and 4.2 of the collective agreement, which states:
“4. THE PARTIES TO THE COUNCIL THEREFORE AGREE AS FOLLOWS:
4.1 That the existing norms as set out in PAM in terms of which schools are graded and regraded must be replaced by the following norms:
Grading of Schools
The salary level of a principal of a school is determined by the grading of the school, which is done in accordance with the number of educator posts allocated to a school in terms of national norms. …
Educator Posts on the Departmental Establishment of the School Applicable Salary levels Grading Minimum posts required for upgrading to next level Number of posts to which the establishment must drop before the institution will be down graded
…
4 -12 9 S9 13 2
…”
[10] The respondent appointed the applicant to the salary level P2 as the school was allocated eight educator posts. The eight educator posts on the departmental establishment of the school has been the same for the academic years 2014, 2015 and 2016.
[11] The applicant’s version was that the provisions of clause 2.6 of PAM superseded the collective agreement and therefore he should have been appointed to the salary level P3 as the school had registered more than 160 leaners for the academic years 2014, 2015 and 2016. To support this contention Mr Rangoanasha submitted an extract of PAM (“the PAM extract”) which provide:
“2.6. Grading of Institutions
The rank (post level) of the head of an institution is determined in terms of the grading of the institution, which is done in accordance with the number of leaners in the institution. The following table is applicable:
Type of educational Institution Number of full-time equivalent leaners Grading of Institution Post level of head of institution
…
Primary Ordinary Schools …
160 -719
…” …
P3 …
3
[12] The PAM extract was part of the PAM document in Government Notice 222 of 1999 published in Government Gazette Number 19767 dated 18 February 1999 and as amended by Government Notice 948 of 2003 published in Government Gazette Number 24948 dated 21 February 2003
Analysis of evidence and arguments
[13] There were dispute on the material facts of the matter. In this regard the parties were in agreement that the applicant was appointed as the principal of the school in 2014 and that the school was allocated eight educator posts. The parties were also in agreement that the school had registered between 160 and 719 learners for the academic years 2014, 2015 and 2016.
[14] The issue in dispute is whether the applicant’s salary grading should have been based on “the number of educator posts allocated to a school” as contemplated in the collective agreement; or on “the number of leaners in the institution” as contemplated in the extract.
[15] The PAM extract that Mr Rangoanasha referred me to is not applicable to the applicant. The applicant was appointed as the school principal in 2014. Hence, the relevant PAM document that is applicable to his salary grading is the one issued by the Minister and published in 2014. The relevant clauses in the PAM document, as it appears in Government Notice 25 published in Government Gazette Number 30678 dated 18 January 2008 and Government Notice 948 published in Government Gazette Number 38249 dated 27 November 2014, are clause A.3.1 and A.3.2, (“the 2014 PAM extract”), which states:
“A3.1 The salary level of a principal of a school is determined by the grading of the school, which is done in accordance with the number of educator posts allocated to the school in terms of the national norms. …
A.3.2 The grading of a school determines the salary range of the principal as indicated in the second column of the table below, and applies to a fully qualified principal.
Educator posts on the departmental establishment of the school … Grading … …
…
4 - 12 … P2 … …
13 - 24 … P3 … …”
“My emphasis)
[16] It is apparent from the 2014 PAM extract that Mr Rangoanasha’s argument is simply not sustainable as the PAM extract that is clearly not applicable to the applicant. The applicant’s salary grading was correctly assessed to be P2 based on the eight educator posts in the school.
AWARD
[17] The respondent, the Limpopo Department of Education, has correctly graded the applicant, Mr Johannes Sehloroane Makhura, in respect of the academic years 2014, 2015 and 2016, to be on salary level P2 based on the eight educator posts allocated to the CM Sehlapelo Primary School.
Arbitrator: M Naidoo
Province: Limpopo
Applicant: JOHANNES SEHLOROANE MAKHURA
Respondent: Department of Education Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Voorwarts Building, corner Hospital and Hans van Rensburg Streets, Polokwane
Award Date: 15 October 2016
Arbitrator: M NAIDOO
Case No PSES245-16/17LP
In the matter between
JOHANNES SEHLOROANE MAKHURA Applicant
And
LIMPOPO DEPARTMENT OF EDUCATION Respondent
ARBITRATOR: M NAIDOO
HEARD: 15 SEPTEMBER 2016
DELIVERED: 15 OCTOBER 2016
AWARD
Details of hearing and representation
[1] The arbitration proceedings took place on 15 September 2016 at the offices of the respondent, Voorwarts Building, corner Hospital and Hans van Rensburg Streets, Polokwane. The proceedings were mechanically recorded. The applicant, Mr Johannes Sehloroane Makhura, was present and represented by Mr S Rangoanasha, an attorney of the law firm Rangoanasha Incorporated. The respondent, the Limpopo Department of Education, was represented by Mr R Makhema, its assistant director: labour relations. The proceedings were conducted in English. No interpretation services were used.
Issues to be decided
[2] I am required to interpret the provisions relating to the grading of schools as directed by the Education Labour Relations Council Collective Agreement Number 3 of 2006 (“the collective agreement”) against the provisions of the provisions relating to the grading of institutions as directed by the Personnel Administrative Measures (“PAM”) published by the Minister of Education (“the Minister”) in terms of section 4 of the Employment of Educators Act 1998, as amended (“the PAM”), to determine whether the respondent correctly graded the applicant to be on salary level P2, as opposed to being on P3, when it appointed him as principal of the CM Sehlapelo Primary School (“the school”).
Background to the issues in dispute.
[3] The applicant has been employed with the respondent as a principal at the school since 2014. The post was graded by the respondent at the salary level P2 on the criterion that the school was allocated eight educator posts. The applicant concedes that the school was allocated eight educator posts but avers that the post should have been graded at the salary level of P3 on the criterion that the school has more than 160 registered learners. The respondent concedes that the school has, since 2014, had more than 160 registered leaners.
[4] On 28 July 2016 the applicant referred a “promotion/appointment” dispute with the Education Labour Relations Council (ELRC) The dispute was conciliated on 19 August 2016 and remained unresolved. A certificate of outcome was issued accordingly.
[5] The arbitration was set down for 15 September 2016. The parties’ representatives explained to me that there was no dispute on the material facts associated with the dispute. The parties conceded that the dispute is one of interpretation and application.
Summary of the evidence and arguments
[6] The parties made opening statements. The parties submitted a two bundles of documents. No one testified. By agreement with the parties, I issued a ruling on record directing the parties to deliver closing arguments by 20 September 2016 and, by 23 September 2016, to deliver any supplementary closing arguments, if they so desired.
[7] When the parties made their submission, during the opening statement stage, I engaged with them with a view to narrowing the issues in dispute.
[8] The parties explained that the applicant was appointed to his current post as principal of the school in 2014. At the time the respondent had graded the post at the salary level P2. This was because the respondent had allowed only eight educator posts for the school. This remained to be the case to the current year.
[9] The respondent justified the grading on the strength of clause 4.1 and 4.2 of the collective agreement, which states:
“4. THE PARTIES TO THE COUNCIL THEREFORE AGREE AS FOLLOWS:
4.1 That the existing norms as set out in PAM in terms of which schools are graded and regraded must be replaced by the following norms:
Grading of Schools
The salary level of a principal of a school is determined by the grading of the school, which is done in accordance with the number of educator posts allocated to a school in terms of national norms. …
Educator Posts on the Departmental Establishment of the School Applicable Salary levels Grading Minimum posts required for upgrading to next level Number of posts to which the establishment must drop before the institution will be down graded
…
4 -12 9 S9 13 2
…”
[10] The respondent appointed the applicant to the salary level P2 as the school was allocated eight educator posts. The eight educator posts on the departmental establishment of the school has been the same for the academic years 2014, 2015 and 2016.
[11] The applicant’s version was that the provisions of clause 2.6 of PAM superseded the collective agreement and therefore he should have been appointed to the salary level P3 as the school had registered more than 160 leaners for the academic years 2014, 2015 and 2016. To support this contention Mr Rangoanasha submitted an extract of PAM (“the PAM extract”) which provide:
“2.6. Grading of Institutions
The rank (post level) of the head of an institution is determined in terms of the grading of the institution, which is done in accordance with the number of leaners in the institution. The following table is applicable:
Type of educational Institution Number of full-time equivalent leaners Grading of Institution Post level of head of institution
…
Primary Ordinary Schools …
160 -719
…” …
P3 …
3
[12] The PAM extract was part of the PAM document in Government Notice 222 of 1999 published in Government Gazette Number 19767 dated 18 February 1999 and as amended by Government Notice 948 of 2003 published in Government Gazette Number 24948 dated 21 February 2003
Analysis of evidence and arguments
[13] There were dispute on the material facts of the matter. In this regard the parties were in agreement that the applicant was appointed as the principal of the school in 2014 and that the school was allocated eight educator posts. The parties were also in agreement that the school had registered between 160 and 719 learners for the academic years 2014, 2015 and 2016.
[14] The issue in dispute is whether the applicant’s salary grading should have been based on “the number of educator posts allocated to a school” as contemplated in the collective agreement; or on “the number of leaners in the institution” as contemplated in the extract.
[15] The PAM extract that Mr Rangoanasha referred me to is not applicable to the applicant. The applicant was appointed as the school principal in 2014. Hence, the relevant PAM document that is applicable to his salary grading is the one issued by the Minister and published in 2014. The relevant clauses in the PAM document, as it appears in Government Notice 25 published in Government Gazette Number 30678 dated 18 January 2008 and Government Notice 948 published in Government Gazette Number 38249 dated 27 November 2014, are clause A.3.1 and A.3.2, (“the 2014 PAM extract”), which states:
“A3.1 The salary level of a principal of a school is determined by the grading of the school, which is done in accordance with the number of educator posts allocated to the school in terms of the national norms. …
A.3.2 The grading of a school determines the salary range of the principal as indicated in the second column of the table below, and applies to a fully qualified principal.
Educator posts on the departmental establishment of the school … Grading … …
…
4 - 12 … P2 … …
13 - 24 … P3 … …”
“My emphasis)
[16] It is apparent from the 2014 PAM extract that Mr Rangoanasha’s argument is simply not sustainable as the PAM extract that is clearly not applicable to the applicant. The applicant’s salary grading was correctly assessed to be P2 based on the eight educator posts in the school.
AWARD
[17] The respondent, the Limpopo Department of Education, has correctly graded the applicant, Mr Johannes Sehloroane Makhura, in respect of the academic years 2014, 2015 and 2016, to be on salary level P2 based on the eight educator posts allocated to the CM Sehlapelo Primary School.
Arbitrator: M Naidoo