Award  Date:

05 July 2021

In the matter between

Rossouw Melanie Joyce Applicant


And

Education Department of Western Cape Respondent

_________________________________________________________
Issue: Unfair Labour Practice – Provision of Benefits

Arbitrator: Dr. GC. Van Der Berg
Award: 05 July 2021


ARBITRATION AWARD


Details of hearing and representation

1. The arbitration case was scheduled on the 15th of June 2021 via video conference from Cape Town. The proceedings were both digitally and manually recorded. The Applicant, MJ Rossouw was represented by Cedric Johnson. The Respondent, Education Department of Western Cape, was represented by Vuyokazi Mthwazi, Labour Relations Officer. The Applicant alleged an unfair labour practice regarding benefits. The Applicant is seeking compensation for acting allowance from October 2020 up to 30 April 2021. The Respondent denied that an unfair labour practice was committed against the Applicant.

Issue to be decided

2. The applicant referred an unfair labour practice dispute regarding benefits in respect of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended to the ELRC.

3. I am firstly required to determine whether or not the Respondent committed an unfair Labour practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA by non-payment of the acting allowance from the 1st of October 2020 up to the 30th of April 2021.

4. Secondly I am required to determine whether or not the Respondent can deduct the acting allowance paid to the Applicant from the 1st of May 2017 to the 31st of March 2020 after it was determined that the Applicant were not entitled to it. This part of the dispute was prematurely referred as no deductions were made from the salary of the Applicant in terms of the Personnel Administrative Measures (PAM), paragraph B. 12.1 and B. 12.2.2.1. The dispute was referred to the ELRC on the 1st of April 2021, and the ELRC has no jurisdiction to handle this part of the dispute if referred prematurely.

5. In terms of appropriate relief in the event that I find that the Respondent committed an ULP: (1) Allocate to the Applicant the amount of R46 735-60 for acting allowance from the 1st of October 2020 up to the 30th of April 2021.

Background to the Dispute

6. The Applicant was previously employed as a Principal at the Wansbek (DRC) Primary School. With the closure of this school, the Applicant were moved to De Villiers Primary School with effect from the 1st of January 2015 with retention of her rank and salary. She was carried above the establishment of De Villiers Primary School until suitable placement could be found.

7. When the Deputy Principal post became vacant in 2017 the Applicant were nominated by the school to act in this position. The nomination was recommended by the Circuit Manager and the processing of the acting allowance payment started from the 1st of May 2017 until the 31st of March 2020. According to the Respondent it was erroneously affected.

8. The Applicant acted in the post of Deputy Principal also from the 1st of October 2020 up to the 30th of April 2021 and during this period she was doing the required functions of the post, but was not compensated for this period.

9. The Applicant referred the dispute to ELRC on the 8th of April 2021. The conciliation took place on the 29th of April 2021 and the certificate of non-resolution was issued, and no pre-arbitration minutes were concluded. The arbitration proceedings were set down for the 15th of June 2021.

10. The parties did present opening statements but presented written closing statements, as agreed, on or before the 21st of June 2021. Both parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity the details of this will not all be repeated in the award, but it should not be construed that it was not considered.

Survey of evidence and argument
Documentary evidence.
11. Both parties submitted bundles of documents. The bundle of the Applicant was marked as “A” pages 1-13. The bundle of the Respondent were marked as “R” pages 1-16. Both parties did not dispute the authenticity of the respective bundles.
Applicant’s evidence and arguments
The Applicant, Melanie Joyce Rossouw, Principal (P4), after having been sworn in, testified as follows:
12. She was employed as the Principal of Wansbek (DRC) Primary School since 2001 and the school closed in 2014. With effect from the 1st of January 2015 she was moved to De Villiers Primary School with retention of her rank and salary. She is current on a post level P4 in access and should have been placed. The rural school where she was the Principal was a small school and De Villiers Primary School is a S11, much bigger school. Her salary at Wansbek Primary School was much smaller than a P4 Principal at De Villiers Primary School. Even her salary was lower that the P3 Deputy Principal post (P3) at De Villiers Primary School. The salary of posts are determined on the level of the school and not the post level of the position. However at the P1 School they have the same job description as at a bigger S11 school.

13. The Education Department put all Principals on post level 4, but the salaries are not the same depending on the level of the school. When she arrived at De Villiers School the Deputy Principal position was vacant due to a resignation, and another person acted in the position up to 2017, when the person resigned. She was nominated as Deputy Principal and started acting in the P3 post since the 1st of May 2017 up to the 31st of March 2020 and she was remunerated R4 800-00 more a month on her present salary. Nobody informed her that she was not supposed to act in a post level 3 position with higher salary and more benefits than her post level 4 at the smaller school.

14. She fulfilled all the functions as described in the job description of a Deputy Principal post at a S11 school. She was accepted by the School Governing Body (SGB) and her acting was signed off by the Circuit Manager. Her acting was approved and she was paid the difference in the salary.

15. The position of Deputy Principal was advertised and she applied but was not appointed. In 2018 the Chairperson of the SGB received a letter signed by the Head of Education with the following heading: ERRONEOUSLY ADVERTISED POST OF DEPUTY PRINCIPAL AT DE VILLIERS PRIMARY SCHOOL: POST NUMBER 629: VACANCY LIST NO 2 OF 2016. The content reads as follow: “Kindly be advised that approval has been granted to regard the post of Deputy Principal at De Villiers Primary School as erroneously advertised. The Directorate: Recruitment and Selection have noted that two excess principals has been placed at your school. These two principals are therefore carried against the Deputy Principal and Departmental Head posts and should be utilised as per the post description. You are also reminded that the Circuit Manager is responsible for the placement of these two Principals and until they have been suitably placed, the post concern cannot be filled”. This letter was signed by the Head of Education on the 27th of August 2018.

16. According to Resolution 8 of 2002 clause 2, an educator may only be appointed to act in a post that is one post level higher than his/her current position. Point 4 states: “In extraordinary circumstances, the employer may deviate from clauses 2 and 3, above (including instances where the Governing Body/Council for a Further Education and Training institution fails to make a recommendation). In this case the Applicant on a P4 post in a small school and moved to De Villiers Primary School, acted in a P3 post in a much bigger school and the acting allowance was paid monthly by the Education Department of the Western Cape.

17. Under cross-examination the Applicant confirmed that she was not aware that she cannot act in a P3 position from a P4 post. The P4 position of Principal was much lower in salary and benefits than a P3 Deputy position in a bigger school. She agreed that she opted to keep the position as Principal at De Villiers Primary School when she left the farm school. The Applicant was referred to page 10 of bundle “A” where paragraph C.4.1.3 of the PAM states: “An educator may only be appointed to act in a post that is one level higher than his/her current position” She opted to retain her rank as Principal as P4 at De Villiers Primary School. She was therefore disqualified to act in the post of Deputy Principal. She responded that although she was appointed to one level higher as P3, she never received the salary and benefits of a level P4 position at De Villiers Primary school.

18. Under re-examination she confirmed that she acted in a P3 post as Deputy Principal, which was a R4800-00 higher payment than her present position as Principal. She was also acting as Deputy Principal from the 1st of October 2020 up to the 30th of April 2021 and deserves to be paid the monthly acting allowance.
The witness of the Applicant, Russel Sampson, Principal, after having been sworn in, testified as follows:
19. He is presently employed as Principal at Bonnievale Primary School. Previously he was employed as the Principal at De Villiers Primary School in Robertson from January 2011 up to March 2020. The Applicant came to the school as a P4 Principal. She was capable and added value to De Villiers Primary School. The Applicant never earned the same salary and benefits as the Principal. The Applicant was doing all the responsibilities of Deputy Principal as contained in the job description at a bigger school. He testified that there was a Deputy Principal when the Applicant arrived. When the position of Deputy Principal became vacant and the other person also left, the Applicant acted as Deputy Principal since October 2017 up to the 31st of March 2020.

20. He was not made aware that the Applicant was not supposed to act in the position of Deputy Principal, but it is common law that when a person acts in a position she will be remunerated in the position if the salary is higher than her present position. The salary as Principal in the small school was lower than the salary of the Deputy Principal position in the bigger school. He stated that the salary of a Principal at a school is determined by the position and notch you get paid in that position. The ranking of a school (S11) in this instance is very important and a Deputy Principal earns more than a Principal in a smaller school.

21. He admitted as Principal that the PAM document is familiar to him. He agreed that the person must act in a higher vacant position and the Applicant acted in a lower position, but there were extraordinary circumstances for the Applicant to act for such a long period in a higher paid Deputy Principal position. He stated that the school received instruction to absorb the two principals in the vacant positions. He read the letter signed by the Head of Education on the 27th of August 2018 which appears in paragraph 15 and testified on by the Applicant.

22. The Applicant acted in the Deputy Principal position and the other person in the HOD position. He disagreed, when it was put to him that the Applicant was not supposed to act in the Deputy Principal position, as she was nominated by the SGB and approved by the Circuit Manager and paid acting allowance accordingly. She was performing all the functions of the Deputy Principal position.
Respondent’s evidence and argument
The witness of the Respondent, Lindsay Jansen, Assistant Director in Recruitment and Selection, after having been sworn in, testified as follows:
23. The Applicant is employed by the Western Cape Education Department as a Principal on post level P4 and she wanted to be paid an acting allowance from the 1st of October 2020 up to the 30th of April 2021. He stated that the Applicant is not entitled to acting allowance as the policy is very clear that an educator can only act in a higher position which is vacant. He confirmed that the Applicant cannot act in a lower position as she occupied the position of Principal.

24. Under cross-examination he confirmed that the salary of a Principal in any school is determined by the size and curriculum of the school and whether it is a primary or a secondary school. He agreed that the salary and benefits of a Principal at a farm school is lower than the same position in a bigger school although both positions are on a P4. He was not sure whether a Principal can act in a lower position if the salary is lower that the Deputy Principal position. He was also not sure whether a person must be paid acting allowance if the person took all the responsibility of the position.

25. Under re-examination he confirmed that acting is always in a higher position and it has nothing to do with the rank of the position and notches. He reiterated that a person is not supposed to receive acting allowance for acting in a lower position.

Closing arguments
26. Both the representatives of the Applicant and the Respondent sent written closing arguments by the 21st of June 2021 as agreed on the 15th of June 2021. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.

Analysis of evidence and argument

27. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter.

28. The following common cause facts were identified or testified by the parties: (1) The Applicant is a Principal (P4) employed at De Villiers Primary School with effect from the 1st of January 2015, as she was moved from Wansbek (DRC) Primary School; (2) She retained her rank and salary of a farm school. She is carried above the establishment of De Villiers Primary School until suitable placement could be found; (3) The Applicant was advised to apply for vacant posts at other institutions; (4) When the Deputy Principal post became vacant, she was nominated by the school to act in this position. The nomination was recommended by the Circuit Manager and the processing of the payment of an acting allowance was affected; (5) the Applicant acted in the position of Deputy Principal at De Villiers Primary School for the period of the 1st of May 2017 until the 31st of March 2020, and was paid an acting allowance.

29. In this arbitration, I am firstly going to refer to the ELRC Collective Agreements Number 8 of 2002 on the payment of acting allowances. Secondly, I am going to refer to the Personnel Administrative Measures (PAM) dated 12 February 2016 in Government Gazette No 39684.

30. The Panellist is expected to determine whether the Respondent committed an unfair labour practice (ULP) in terms of section 186 (2)(a) of the LRA by non-payment of the acting allowance from the 1st of October 2020 up to the 30th of April 2021, regarding benefits. Benefits are available to all employees, but in acting position it is only available to employees that qualify or meet the minimum requirements and who is to undertake extra work.

31. An employee who alleged that she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The Applicant must prove not only the existence of the labour practice, but also that it is unfair. She must do more than just demonstrate that she has acted from the 1st of October 2020 up the 30th of April 2021 in the position of Deputy Principal and not been paid for it. She must further prove that the acting in a lower position was according to the stipulations of the relevant ELRC Collective Agreement 8 of 2002, as well as the relevant chapters of the PAM. She must also prove that she was paid acting allowance for acting in a Deputy Principal position (P3) at De Villiers Primary School whilst she was in a Principal position (P4), and that it was done as a result of extraordinary circumstances.

32. The ELRC Collective Agreement 8 of 2002 states as follows regarding the acting allowances: “(1) An educator, complying with the minimum requirements in paragraph 2 (2) of Chapter B of the PAM, shall be appointed, in writing, by the employer to act; (2) An educator may only be appointed to act in a post that is one post level higher than his/her current position; (3) Within fourteen days of notification by the employer, a School Governing Body/Council for a Further Education and Training Institution shall be requested to recommend for the employer, the educator to be appointed to act in a higher post where the permanent incumbent is absent; (4) In extraordinary circumstances, the employer may deviate from clauses 2 and 3 above (including instances where the Governing Body/Council for a Further Education and training institution fails to make recommendation)”. The representative of the Applicant also emphasizes the fact that the latter statement makes special provision for the unique circumstances under which the Applicant has been placed at De Villiers Primary School.

33. The PAM, of 12 February 2012 states as follows regarding an acting allowance: “C.4.1.2 An educator, complying with the minimum requirements in paragraph B.3.2 of Chapter B, must be appointed in writing by the employer to act; C.4.1.4 Within fourteen days of notification by the employer, an SGB will be requested to recommend to the employer the educator to be appointed to act in a higher post; C.4.1.5 In extraordinary circumstances the employer may deviate from C.4.1.1 and C.4.1.2 above (including instances where the SGB fails to make a recommendation).”

34. The general relevant measures regarding acting are as follows: (1) An educator, complying with the minimum requirements in paragraph 2 (2) of Chapter B of the PAM, shall be appointed, in writing, by the Institution Head/Principal, to act; (2) An educator may only be appointed to act in a higher vacant and funded post that is one level higher than his/her current position; (3) An acting allowance is the difference between the employee’s present salary notch (without benefits) and the starting salary notch of the higher vacant funded post (without benefits); (4) If an employee is on a salary notch (including a personal notch) higher than the commencing salary notch of the higher funded vacant post to which he or she is appointed, the acting allowance will be the difference between the current salary notch and the next higher salary notch applicable to the higher vacant post, provided that there is a difference; (5) An educator shall assume all the responsibilities pertaining to the post for the period he/she is appointed; (6) Only an employee permanently employed by the WCED may be appointed in an acting capacity to a higher vacant funded post or in a post where the permanent incumbent is absent; and (7) The Institution Head/ Principal of the component must inform the employee in writing of his/her appointment to the higher vacant funded post in an acting capacity and the employee must accept or refuse the appointment in writing.

35. The Applicant testified that she was employed at De Villiers Primary School from the 1st of January 2015. She is in a Principal (P4) post employed as she was moved from Wansbek (DRC) Primary School and retained her rank and salary of a farm school. She is carried above the establishment of De Villiers Primary School until suitable placement could be found and the Applicant was advised to apply for vacant posts at other institutions. When the Deputy Principal post became vacant, she was nominated by the school to act in this position. The nomination was recommended by the Circuit Manager and the processing of the payment of an acting allowance was affected. The applicant acted in the position of Deputy Principal at De Villiers Primary School for the period of the 1st of May 2017 until the 31st of March 2020 and was paid an acting allowance.

36. The position of Deputy Principal was advertised and she applied but was not appointed. In 2018 the Chairperson of the SGB received a letter signed by the Head of Education indicating that approval has been granted to regard the post of Deputy Principal at De Villiers Primary School as erroneously advertised. The Directorate: Recruitment and Selection have noted that two excess principals have been placed at the De Villiers Primary School. These two principals were therefore carried against the Deputy Principal and Departmental Head posts and should be utilised as per the post description. This was signed on the 27th of August 2018 whilst the Applicant acted in the Deputy Principal position since the 1st of May 2017. The Applicant claims that the Respondent failed to pay her an acting allowance for the period the 1st of October 2020 up to the 30th of April 2021.

37. According to Resolution 8 of 2002 clause 2 an educator may only be appointed to act in a post that is one post level higher than his/her current position. Point 4 states: “In extraordinary circumstances, the employer may deviate from clauses 2 and 3, above (including instances where the Governing Body/Council for a Further Education and Training institution fails to make a recommendation). In this case the Applicant on a P4 post from a small school acted in a P3 post in a much bigger school and the acting allowance was paid monthly by the Education Department of the Western Cape. Therefore Resolution 8 of 2002 clause 2 was violated and the acting was condoned by the Circuit Manager according to clause 4 and implemented.

38. The representative of the Applicant submits that she never earned the same salary and benefits as the Principal at the bigger School although she retained her rank and salary as Principal (P4) as at the smaller school. The Applicant was doing all the responsibilities of Deputy Principal as contained in the job description at a bigger school. When the position of Deputy Principal became vacant and the other person also left, the Applicant acted as Deputy Principal since October 2017 up to the 31st of March 2020. The salary of the Deputy Principal post (P3) at De Villiers Primary School is much higher than the salary at the P4 Principal position at the smaller rural school. The Education Department put all Principals on post level 4, but the salaries are not the same depending on the level of the school. The Resolution 8 of 2002 is also silent about a principal of a P1 school declared as P4 for IQMS purposes acting as a deputy principal of a S11 school.

39. It was clear from the aforementioned that the P3 Deputy Principal position in De Villiers Primary School was higher than the P4 Principal position at a farm school which the Applicant retained after her placement in the bigger school. The Applicant, an educator, complying with the minimum requirements in paragraph 2 (2) of Chapter B of the PAM, and was appointed by the Institution Head/Principal, to act. The Applicant assumed all the responsibilities pertaining to the post for the period he/she was appointed. She is an employee permanently employed by the WCED and may be appointed in an acting capacity.

40. The dispute about unpaid acting allowance relating to an ULP regarding benefits and it involved the interpretation and application of the mentioned Collective Agreement and PAM. There is no evidence to establish that the Circuit Manager did not exercise his/her discretion fairly when the acting of the Applicant was approved, in this extraordinary circumstances where the position acting in is lower, but in principle higher than her position. Therefore the Applicant was allowed by the Principal and WCED to act in the position of Deputy Principal at De Villiers Primary school and paid accordingly an acting allowance from the 1st of May 2017 up to the 31st of March 2020.

41. The acting continued from the 1st of October 2020 up to the 31st of April 2021 and therefore due to the extraordinary approved situation, the Applicant must be paid for this period as well. The Respondent therefore committed an unfair labour practice regarding the non-payment of an allowance for the mentioned period regarding the provision of benefits.

42. The Respondent did not oppose the statement that the Applicant was acting as Deputy Principal and that she did not receive the acting allowance for the period of the 1st of October 2020 until the 30th of April 2021.

43. Considering all the above, the applicant is entitled to an acting allowance for the period of the 1st of October 2020 until the 30th of April 2021 and is entitled to an amount of R46 735-60.

44. Respondent acted unfairly when they refused to pay the approved acting allowance for the period 1st of October 2020 up to the 30th of April 2021 after they had paid it for the period 1st of May 2017 until 31st of March 2020.

45. In light of the above I make the following award.

AWARD

46. The Respondent, Education Department of the Western Cape is ordered to pay the Applicant an amount of R46 735-60 (fourty six thousand seven hundred and thirty five rand and sixty sent) for acting allowance during the period of the 1st of October 2020 up to the 30th of April 2021.

47. The above-mentioned amount must be paid by the Respondent to the Applicant by not later than the 25th of July 2021.

48. The Head of the Department of Education-WC, (HOD) is ordered to ensure that payment of R46 735-60 is paid to the Applicant by the 25th of July 2021.



Signature:

Panelist: Gert van der Berg
Sector: Education Department of the Western Cape

ELRC 302 -20 /21 NW