ELR759-20/21EC
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Award Date:
05 July 2021
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Case Number:
ELR759-20/21EC
Panellist: Pumeza Ndabambi
Date of Award: 05 July 2021
In the ARBITRATION between
NAPTOSA obo Coetzer, Karen Lesley
(Applicant)
And
Department of Education – Eastern Cape
(Respondent)
Details of hearing and representation
1. This matter came before the ELRC for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act, No. 66 of 1995, as amended (“LRA”). The hearing was held virtually via Zoom on 10 May 2021 and finalised on 11 June 2021.
2. The Applicant, Karen Lesley Coetzer, was represented by Adv Saayman, an official of NAPTOSA and the Respondent, Department of Education – Eastern Cape, was represented by Mr Lusapho Ndzongo, the Labour Relations Manager.
3. The proceedings were conducted in English and were electronically recorded.
4. Both parties agreed to submit written closing arguments by 18 June 2021 and they complied as closing arguments were received from both parties.
Issue to be decided
5. I am required to determine whether or not the non-payment of acting allowance to the Applicant constitutes an unfair labour practice, and if so, determine an appropriate remedy.
Background to the issues
6. The Applicant is a Post Level 1 Teacher and acted as HoD from March 2020 in a vacant position at Balmoral Girls Primary School without a written appointment letter. She is therefore expecting payment of an acting allowance as a benefit amounting to R29 935.50.
Survey of evidence and argument
Applicant’s Version
7. Ms Karen Lesley Coetzer (the Applicant) led her own testimony, the summary of which is outlined below:
8. The Applicant stated that the SGB of the school sent a recommendation letter to the department, for the attention of Mr Gongqa, who was the EDO at the time. She received no communication from the department. She then sent a Whatsapp message to Miss Godana, who she believes is the Deputy Director: Human Resources of the employer. The Applicant stated that she informed her from about 5 February 2020 that she is acting in the position and is not being paid her acting allowance.
9. She presented the Whatsapp message she sent to Ms Godana and presented it to show that it was read by the recipient. She received no response from Ms Godana. She therefore assumed that there are no objections to her acting in the position. Her salary notch is R381 405.00 per annum and that she qualifies for a 6% acting allowance. She is not aware of any person who was not paid for acting.
10. In January 2019 their HoD was appointed as a Deputy Principal and the position of HoD became vacant. Had she not acted in the position teaching and learning would not have happened.
11. She confirmed under cross-examination that she acted in the position to ensure smooth running of the curriculum and was advised by NAPTOSA that she should be remunerated for the acting role and was advised to send a letter to the department. She had no appointment letter from the employer.
Respondent’s Version
12. The Respondent led the evidence of one witness, Ms Ntombekhaya Godana (Miss Godana), the summary of which is outlined below: -
13. Ms Godana testified that she was called by the Applicant seeking information on acting roles. At the time of the conversation she was driving to Cradock. She did not issue the appointment. The requirement is that the school applies to the department and appointment letters are issued for Principals and are approved by the department. There should be a prior approval to act.
14. Under cross-examination she could not agree to the history of the employer’s late payments and denied that there was an application. She confirmed that there should an appointment letter from the employer before one assumes duty. She stated that she was not aware of any person who was paid acting allowance having not received acting appointment letters.
15. She stated that even if the Applicant qualified for acting there was never an appointment letter issued. She also could not respond on behalf of the EDO to whom the recommendation letter was sent and that the recommendation was not made to her office. In this matter the issue should have been a local arrangement between the school and the Circuit Manager and that applications are sent to the department not through Whatsapp.
Analysis of evidence and argument
16. Section 185 of the LRA states that every employee has the right not to be unfairly dismissed or subjected to unfair labour practices. In this matter the onus rests on the employee to prove an unfair labour practice.
17. In this matter it is common cause that the Applicant acted, and still acts as HoD at Balmoral Girls Primary School since March 2020. It is further common cause that the Applicant was never appointed in writing by the Respondent. The Respondent disputes that there was an application by the school to the Respondent.
18. From the evidence presented a letter dated 9 March 2020 was issued by the school for the attention of Mr Gongqa recommending appointment of the Applicant to act in a vacant substantive position of HoD. Such letter is signed by the SGB Chairman, Mr B. Killian, the SGB Secretary, Mr J. Van Niekerk and the Principal, Mrs B. Le Roux. There is further evidence led by the Applicant, in which she attached this letter as well as extracts from the PAM document. I cannot understand why Ms Godana would deny receiving the document, even if the platform was not appropriate. She did not respond to the Applicant.
19. I therefore find that indeed a letter to the EDO Mr Gongqa, was drafted by the school, but there is no proof that it was served on him, but Ms Godana was forwarded a copy by the Applicant through Whatsapp to which she never responded, even though in the conversation she acknowledged receipt and promised to revert back to the Applicant. There is also no dispute that Mr Godana did not receive the document as the employer’s witness could not attest thereto. I can therefore accept that the document went to Mr Godana.
20. The first issue to be determined is whether the Applicant is eligible to act in a position on the strength of a recommendation by the SGB. That question has been answered by both parties to the effect that there must be a written approval by the employer. In this matter it is common cause that the written appointment was never issued by the department, as employer in the matter. The SGB is therefore not the employer in this matter and they have played their role of making the required recommendations, after which the employer remained silent, whilst the Applicant continued to act up to a point of lodging this dispute.
21. The challenge with the Applicant’s case is that we are not dealing with a decision taken by the employer, seen in her eyes as an unfair labour practice. As alluded to above, the SGB is not the employer, and the department, being the employer took no decision to appoint the Applicant in an acting capacity. I accept that the department’s conduct in not responding to the school’s recommendation is unfair and demoralising on the Applicant and the school that has taken a responsible decision to ensure that teaching and learning continues. The case at hand is still an internal matter between the Applicant and her employer as no decision has been taken.
22. At this point the referral is premature in the absence of a decision by the department, as employer, whose conduct would need to be interrogated and a decision be taken on whether the conduct complained of amounts to an unfair labour practice as regulated by chapter C4 of PAM.
23. There is therefore no evidence of a grievance being lodged by the Applicant and her union to attempt to resolve the matter internally and to secure a decision from the employer. I am of the opinion that the matter at hand is capable of being resolved internally by following due process. In the premises that then makes the referral premature. In arriving at this decision I have taken into account the provisions of Collective Agreement No 3 of 2016, Chapter E, Clause 29.
24. In these circumstances I make the following ruling:
AWARD
25. The referral is premature.
26. The ELRC lacks jurisdiction to entertain an unfair labour practice dispute at this stage.
Signature:
Panellist: Pumeza Ndabambi
ELR759-20/21EC
Panellist: Pumeza Ndabambi
Date of Award: 05 July 2021
In the ARBITRATION between
NAPTOSA obo Coetzer, Karen Lesley
(Applicant)
And
Department of Education – Eastern Cape
(Respondent)
Details of hearing and representation
1. This matter came before the ELRC for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act, No. 66 of 1995, as amended (“LRA”). The hearing was held virtually via Zoom on 10 May 2021 and finalised on 11 June 2021.
2. The Applicant, Karen Lesley Coetzer, was represented by Adv Saayman, an official of NAPTOSA and the Respondent, Department of Education – Eastern Cape, was represented by Mr Lusapho Ndzongo, the Labour Relations Manager.
3. The proceedings were conducted in English and were electronically recorded.
4. Both parties agreed to submit written closing arguments by 18 June 2021 and they complied as closing arguments were received from both parties.
Issue to be decided
5. I am required to determine whether or not the non-payment of acting allowance to the Applicant constitutes an unfair labour practice, and if so, determine an appropriate remedy.
Background to the issues
6. The Applicant is a Post Level 1 Teacher and acted as HoD from March 2020 in a vacant position at Balmoral Girls Primary School without a written appointment letter. She is therefore expecting payment of an acting allowance as a benefit amounting to R29 935.50.
Survey of evidence and argument
Applicant’s Version
7. Ms Karen Lesley Coetzer (the Applicant) led her own testimony, the summary of which is outlined below:
8. The Applicant stated that the SGB of the school sent a recommendation letter to the department, for the attention of Mr Gongqa, who was the EDO at the time. She received no communication from the department. She then sent a Whatsapp message to Miss Godana, who she believes is the Deputy Director: Human Resources of the employer. The Applicant stated that she informed her from about 5 February 2020 that she is acting in the position and is not being paid her acting allowance.
9. She presented the Whatsapp message she sent to Ms Godana and presented it to show that it was read by the recipient. She received no response from Ms Godana. She therefore assumed that there are no objections to her acting in the position. Her salary notch is R381 405.00 per annum and that she qualifies for a 6% acting allowance. She is not aware of any person who was not paid for acting.
10. In January 2019 their HoD was appointed as a Deputy Principal and the position of HoD became vacant. Had she not acted in the position teaching and learning would not have happened.
11. She confirmed under cross-examination that she acted in the position to ensure smooth running of the curriculum and was advised by NAPTOSA that she should be remunerated for the acting role and was advised to send a letter to the department. She had no appointment letter from the employer.
Respondent’s Version
12. The Respondent led the evidence of one witness, Ms Ntombekhaya Godana (Miss Godana), the summary of which is outlined below: -
13. Ms Godana testified that she was called by the Applicant seeking information on acting roles. At the time of the conversation she was driving to Cradock. She did not issue the appointment. The requirement is that the school applies to the department and appointment letters are issued for Principals and are approved by the department. There should be a prior approval to act.
14. Under cross-examination she could not agree to the history of the employer’s late payments and denied that there was an application. She confirmed that there should an appointment letter from the employer before one assumes duty. She stated that she was not aware of any person who was paid acting allowance having not received acting appointment letters.
15. She stated that even if the Applicant qualified for acting there was never an appointment letter issued. She also could not respond on behalf of the EDO to whom the recommendation letter was sent and that the recommendation was not made to her office. In this matter the issue should have been a local arrangement between the school and the Circuit Manager and that applications are sent to the department not through Whatsapp.
Analysis of evidence and argument
16. Section 185 of the LRA states that every employee has the right not to be unfairly dismissed or subjected to unfair labour practices. In this matter the onus rests on the employee to prove an unfair labour practice.
17. In this matter it is common cause that the Applicant acted, and still acts as HoD at Balmoral Girls Primary School since March 2020. It is further common cause that the Applicant was never appointed in writing by the Respondent. The Respondent disputes that there was an application by the school to the Respondent.
18. From the evidence presented a letter dated 9 March 2020 was issued by the school for the attention of Mr Gongqa recommending appointment of the Applicant to act in a vacant substantive position of HoD. Such letter is signed by the SGB Chairman, Mr B. Killian, the SGB Secretary, Mr J. Van Niekerk and the Principal, Mrs B. Le Roux. There is further evidence led by the Applicant, in which she attached this letter as well as extracts from the PAM document. I cannot understand why Ms Godana would deny receiving the document, even if the platform was not appropriate. She did not respond to the Applicant.
19. I therefore find that indeed a letter to the EDO Mr Gongqa, was drafted by the school, but there is no proof that it was served on him, but Ms Godana was forwarded a copy by the Applicant through Whatsapp to which she never responded, even though in the conversation she acknowledged receipt and promised to revert back to the Applicant. There is also no dispute that Mr Godana did not receive the document as the employer’s witness could not attest thereto. I can therefore accept that the document went to Mr Godana.
20. The first issue to be determined is whether the Applicant is eligible to act in a position on the strength of a recommendation by the SGB. That question has been answered by both parties to the effect that there must be a written approval by the employer. In this matter it is common cause that the written appointment was never issued by the department, as employer in the matter. The SGB is therefore not the employer in this matter and they have played their role of making the required recommendations, after which the employer remained silent, whilst the Applicant continued to act up to a point of lodging this dispute.
21. The challenge with the Applicant’s case is that we are not dealing with a decision taken by the employer, seen in her eyes as an unfair labour practice. As alluded to above, the SGB is not the employer, and the department, being the employer took no decision to appoint the Applicant in an acting capacity. I accept that the department’s conduct in not responding to the school’s recommendation is unfair and demoralising on the Applicant and the school that has taken a responsible decision to ensure that teaching and learning continues. The case at hand is still an internal matter between the Applicant and her employer as no decision has been taken.
22. At this point the referral is premature in the absence of a decision by the department, as employer, whose conduct would need to be interrogated and a decision be taken on whether the conduct complained of amounts to an unfair labour practice as regulated by chapter C4 of PAM.
23. There is therefore no evidence of a grievance being lodged by the Applicant and her union to attempt to resolve the matter internally and to secure a decision from the employer. I am of the opinion that the matter at hand is capable of being resolved internally by following due process. In the premises that then makes the referral premature. In arriving at this decision I have taken into account the provisions of Collective Agreement No 3 of 2016, Chapter E, Clause 29.
24. In these circumstances I make the following ruling:
AWARD
25. The referral is premature.
26. The ELRC lacks jurisdiction to entertain an unfair labour practice dispute at this stage.
Signature:
Panellist: Pumeza Ndabambi
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ELRC 302 -20 /21 NW
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