ELRC644-20/21 EC
Text
ELRC 366-19/20EC
Text
Award Date:
13 September 2021
AWARD
Arbitrator: L.CHAROUX
Case Reference: ELRC 366-19/20EC
Date of Award: 13 September 2021
In the arbitration between
NEHAWU OBO P M MTWALO APPLICANT
And
DEPARTMENT OF HIGHER EDUCATION EC 1ST RESPONDENT
EAST CAPE MIDLANDS COLLEGE 2ND RESPONDENT
On behalf of the Applicant: Mr M Gobana of NEHAWU
On behalf of the 1st and 2nd Respondents: Mr L Mpati
INTRODUCTION AND REPRESENTATION
1. The arbitration was initially conducted via zoom on 18 and 31 August 2020.
2. The Applicant was represented by Mr M Gobana of NEHAWU. The 1st and 2nd Respondents were represented by Mr L Mpati, the Assistant Director, Labour Relations, Department of Higher Education.
3. The Applicant is employed by the 1st Respondent in a permanent capacity discharging duties at the 2nd Respondent in terms of the Employment of Educators Act, 1998 as amended.
4. The Applicant alleged that her previous work experience entitles her to the benefits as set out in the ELRC Collective Agreements 4 & 5 of 2003 (“CA”) read together with Chapter B of the PAM (“PAM”). She referred a dispute to the ELRC that relates to the interpretation and application of the CA and the PAM in this regard.
5. The parties handed in a pre-arbitration minute.
6. The parties handed in Bundles “A” and “B”.
7. I heard the evidence of the Applicant, Mr M Sdeba (the College HR Manager) and Mr C van Heerden (the College Principal).
8. The parties submitted written heads of argument that I received on 9 and 14 September 2020.
9. On 5 October 2020 I issued the following ruling:
“The 2nd Respondent is ordered to forward the verified documentation regarding the Applicant’s prior work experience to the 1st Respondent within 5 days of receiving this award. (should be ruling)
The 1st Respondent is ordered to give a final outcome in writing regarding whether the Applicant is entitled to be paid for her previous work experience in terms of the CA read together with the PAM within 10 days of receiving the verified documentation from the 2nd Respondent.”
10. The matter was rescheduled for the arbitration hearing to continue on 24 August 2021 via zoom.
11. On 24 August 2021 I received a copy of the outcome of the 1st Respondent as per my ruling of 5 October 2020.
12. The outcome letter dated 30 April 2021 ( marked Annexure C) states as follows:
“Dear Ms Mtwalo,
This serves to inform you that your previous service is not recognised due to the fact that none of the previous organisations you worked for were accredited to teach and according to Personnel Administration Measures paragraph :B.8.4.3 salary of an educator who has actual teaching or appropriate experience outside public education (ELRC Collective Agreements 5 of 2003 and 4 of 2003) Note: Actual teaching experience outside public education includes, inter alia, experience gained in an independent school, as a SGB or college council employee, AET educator or teaching experience abroad. Note: Appropriate experience refers to working experience, which in the opinion of the employer, developed the person directly or appositely in all respects regarding knowledge, skills and attitude, for holding an educator post. Note; Paragraph B.8.4.3 does not refer to the determination of salaries of educators who have been employed by the state and are re-appointed after a break in service. Refer to paragraph B.8.5 in this regard. B.8.4.3.1 Actual teaching or appropriate experience is recognized as follows: (a) For purposes of determining the starting salary of an educator with experience outside public education, additional notches may be granted based on actual teaching and/or appropriate experience.” (my emphasis)
The letter is signed by Mrs Gropp, the Acting Deputy Director: HRMA.
ISSUES TO BE DECIDED
13. I am required to decide whether the Applicant is entitled to the recognition of her previous work experience in terms of the CA and the PAM.
EVIDENCE
APPLICANT’S EVIDENCE
14. The Applicant testified at the arbitration hearing scheduled on 18 and 31 August 2020 and again at the arbitration hearing scheduled on 24 August 2021.
15. The Applicant testified as follows:
16. She was appointed as a lecturer by the 2nd Respondent (the College) on a Post Level 1 position on 6 January 2014. She is currently still employed at the East Cape Midlands College, under the auspices of the 1st Respondent since 2015.
17. The Applicant said that since 2015 she followed various avenues in an attempt to be afforded recognition of previous work experience (“ROPE”).
18. The Applicant referred to her bundle of documents which sets out in detail her prior employment history that she alleged entitles her to be paid for appropriate previous work experience.
19. 1991 – 1995: The Applicant was employed at Langa-KwaNobuhle Self Help and Resource Exchange (SHARE). She started working as a Facilitator/Trainer providing support and conducting class visits. In 1994 she worked as the Co-ordinator managing the program and organizing events. In 1995 she volunteered her services to manage the Literacy Project. In June 1995 she resigned. (page 8 of Bundle A).
20. 2003 – 2010: The Applicant was employed at Uitenhage Despatch Development Initiative (UDDI) as a Special Projects Co-ordinator. (page 9 Bundle A).
21. 2010-2013: The Applicant was employed at Actionaid SA in the position of Programme Officer. (Page 12 Bundle A)
22. The Applicant testified that all 3 the companies that she worked for were NGO’s which were not registered with the 1st Respondent. She also conceded that the NGO’s did not offer education as their core business.
THE RESPONDENTS’ EVIDENCE
23. As indicated above Mr L Sdeba and Mr C van Heerden testified at the arbitration hearing on 18 and 31 August 2020.
24. Subsequent to my ruling Ms V Kruger, who is employed by the 1st Respondent as the Deputy Director HR in the Conditions of Service Directorate, testified at the hearing scheduled for 24 August 2021, regarding the letter of 30 April 2021. (letter at paragraph 12 above)
25. Ms Kruger said that in order to qualify as appropriate previous work experience the experience had to be with an employer who was accredited with the Department of Higher Education and Training. The experience had to be in training in a formal, structured teaching environment. The previous employers had to be accredited by the 1st Respondent to present courses or programs. Ms Kruger said that none of the NGO’s that the Applicant worked for were accredited by the 1st Respondent. (proof that the NGO’s were not registered with the 1st Respondent was handed in as Annexure D)
26. The relevant evidence for purposes of this arbitration award is the evidence surrounding the letter of 30 April 2021 and the reasons presented by the 1st Respondent for their decision not to recognise the previous work experience of the Applicant for purposes of the benefits in terms of the CA and PAM.
ANALYSIS OF EVIDENCE AND ARGUMENT
The Collective Agreements 4 and 5 of 2003
27. The purpose of the Collective Agreements is to give the same recognition for experience gained outside public schools to educators who were appointed for the first time after 1 July 1996 as for educators who were in service prior to this date. The CA distinguishes between actual and appropriate experience. Actual experience is experience gained while the person held an educator’s post inside and outside public education. Appropriate experience is experience which in the opinion of the employer developed the candidate directly and appositely in all respects regarding knowledge, skills and attitude for holding an educator’s post.
The PAM
28. The relevant part of the PAM reads as follows:
“B.8.4.3
Salary of an educator who has actual teaching or appropriate experience outside public education (ELRC Collective Agreements 5 of 2003 and 4 of 2003)
Note: Actual teaching experience outside public education includes, inter alia, experience gained in an independent school, as a SGB or college council employee, AET educator or teaching experience abroad.
Note: Appropriate experience refers to working experience, which in the opinion of the employer developed the person directly or appositely in all respects regarding knowledge, skills and attitude, for holding an educator post.”
The Applicant’s argument is that her previous work experience (outside the public sector) is appropriate experience and that she is therefore entitled to the recognition of previous work experience in terms of the CA and the PAM.
Interpretation of CA and PAM
29. In terms of the CA and the PAM the employer (1st Respondent) has a discretion (“in the opinion of the employer”) to decide what experience in their view is appropriate experience and would qualify a candidate to be entitled to obtain recognition for such experience.
30. The letter of 30 April 2021 states that the 1st Respondent did not consider the Applicant’s previous work experience to be appropriate because none of the previous organisations that the Applicant worked for were accredited with the 1st Respondent.
31. It is common cause that the entire previous work experience that the Applicant relied on was with NGO’s that are not registered with the 1st Respondent.
32. Mr Gobana argued that neither the CA nor the PAM contained any provision that previous employers and/or entities had to be registered with an institution that was accredited with the 1st Respondent. That is correct, however, neither is the 1st Respondent’s discretion limited in any way. The test for the assessment of whether a discretion is fairly exercised is set out in the Labour Court matter of Arries v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 2324 (LC). In the Arries judgment the court held that there are limited grounds on which an arbitrator, or court, may interfere with the discretion which has been exercised by a party competent to exercise that discretion. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC) the court held with reference to the Arries decision, that the overall test is one of fairness. In that case the court considered the following factors:
o Whether the employer’s decision was arbitrary, or capricious, or unfair;
o Whether the employer was motivated by bad faith;
o Whether there was insubstantial reasons for the employer’s decision;
o Whether the employer’s decision was based upon a wrong principal.
33. After a consideration of the evidence and the arguments presented by both parties and taking into consideration the case law above I concluded that the 1st Respondent is entitled to determine the threshold of what they regard to be appropriate experience. In my view the requirement that previous work experience has to be with an employer who is accredited with the 1st Respondent is not arbitrary, capricious or unfair. I am of the view that it is not unfair to require that appropriate previous work experience has to be experience appropriate for holding an educator post in an institution that is recognised and accredited by the 1st Respondent and therefore meets the minimum standard required in terms of the South African Schools Act, 1994 as amended. There is no evidence before me and it was not alleged by the Applicant that the 1st Respondent’s decision not to recognise the Applicant’s previous work experience was motivated by bad faith or that the Applicant was treated differently to other employees.
AWARD
34. The Applicant’s application is dismissed.
35. I make no order as to costs.
ADVOCATE L CHAROUX
COMMISSIONER
Arbitrator: L.CHAROUX
Case Reference: ELRC 366-19/20EC
Date of Award: 13 September 2021
In the arbitration between
NEHAWU OBO P M MTWALO APPLICANT
And
DEPARTMENT OF HIGHER EDUCATION EC 1ST RESPONDENT
EAST CAPE MIDLANDS COLLEGE 2ND RESPONDENT
On behalf of the Applicant: Mr M Gobana of NEHAWU
On behalf of the 1st and 2nd Respondents: Mr L Mpati
INTRODUCTION AND REPRESENTATION
1. The arbitration was initially conducted via zoom on 18 and 31 August 2020.
2. The Applicant was represented by Mr M Gobana of NEHAWU. The 1st and 2nd Respondents were represented by Mr L Mpati, the Assistant Director, Labour Relations, Department of Higher Education.
3. The Applicant is employed by the 1st Respondent in a permanent capacity discharging duties at the 2nd Respondent in terms of the Employment of Educators Act, 1998 as amended.
4. The Applicant alleged that her previous work experience entitles her to the benefits as set out in the ELRC Collective Agreements 4 & 5 of 2003 (“CA”) read together with Chapter B of the PAM (“PAM”). She referred a dispute to the ELRC that relates to the interpretation and application of the CA and the PAM in this regard.
5. The parties handed in a pre-arbitration minute.
6. The parties handed in Bundles “A” and “B”.
7. I heard the evidence of the Applicant, Mr M Sdeba (the College HR Manager) and Mr C van Heerden (the College Principal).
8. The parties submitted written heads of argument that I received on 9 and 14 September 2020.
9. On 5 October 2020 I issued the following ruling:
“The 2nd Respondent is ordered to forward the verified documentation regarding the Applicant’s prior work experience to the 1st Respondent within 5 days of receiving this award. (should be ruling)
The 1st Respondent is ordered to give a final outcome in writing regarding whether the Applicant is entitled to be paid for her previous work experience in terms of the CA read together with the PAM within 10 days of receiving the verified documentation from the 2nd Respondent.”
10. The matter was rescheduled for the arbitration hearing to continue on 24 August 2021 via zoom.
11. On 24 August 2021 I received a copy of the outcome of the 1st Respondent as per my ruling of 5 October 2020.
12. The outcome letter dated 30 April 2021 ( marked Annexure C) states as follows:
“Dear Ms Mtwalo,
This serves to inform you that your previous service is not recognised due to the fact that none of the previous organisations you worked for were accredited to teach and according to Personnel Administration Measures paragraph :B.8.4.3 salary of an educator who has actual teaching or appropriate experience outside public education (ELRC Collective Agreements 5 of 2003 and 4 of 2003) Note: Actual teaching experience outside public education includes, inter alia, experience gained in an independent school, as a SGB or college council employee, AET educator or teaching experience abroad. Note: Appropriate experience refers to working experience, which in the opinion of the employer, developed the person directly or appositely in all respects regarding knowledge, skills and attitude, for holding an educator post. Note; Paragraph B.8.4.3 does not refer to the determination of salaries of educators who have been employed by the state and are re-appointed after a break in service. Refer to paragraph B.8.5 in this regard. B.8.4.3.1 Actual teaching or appropriate experience is recognized as follows: (a) For purposes of determining the starting salary of an educator with experience outside public education, additional notches may be granted based on actual teaching and/or appropriate experience.” (my emphasis)
The letter is signed by Mrs Gropp, the Acting Deputy Director: HRMA.
ISSUES TO BE DECIDED
13. I am required to decide whether the Applicant is entitled to the recognition of her previous work experience in terms of the CA and the PAM.
EVIDENCE
APPLICANT’S EVIDENCE
14. The Applicant testified at the arbitration hearing scheduled on 18 and 31 August 2020 and again at the arbitration hearing scheduled on 24 August 2021.
15. The Applicant testified as follows:
16. She was appointed as a lecturer by the 2nd Respondent (the College) on a Post Level 1 position on 6 January 2014. She is currently still employed at the East Cape Midlands College, under the auspices of the 1st Respondent since 2015.
17. The Applicant said that since 2015 she followed various avenues in an attempt to be afforded recognition of previous work experience (“ROPE”).
18. The Applicant referred to her bundle of documents which sets out in detail her prior employment history that she alleged entitles her to be paid for appropriate previous work experience.
19. 1991 – 1995: The Applicant was employed at Langa-KwaNobuhle Self Help and Resource Exchange (SHARE). She started working as a Facilitator/Trainer providing support and conducting class visits. In 1994 she worked as the Co-ordinator managing the program and organizing events. In 1995 she volunteered her services to manage the Literacy Project. In June 1995 she resigned. (page 8 of Bundle A).
20. 2003 – 2010: The Applicant was employed at Uitenhage Despatch Development Initiative (UDDI) as a Special Projects Co-ordinator. (page 9 Bundle A).
21. 2010-2013: The Applicant was employed at Actionaid SA in the position of Programme Officer. (Page 12 Bundle A)
22. The Applicant testified that all 3 the companies that she worked for were NGO’s which were not registered with the 1st Respondent. She also conceded that the NGO’s did not offer education as their core business.
THE RESPONDENTS’ EVIDENCE
23. As indicated above Mr L Sdeba and Mr C van Heerden testified at the arbitration hearing on 18 and 31 August 2020.
24. Subsequent to my ruling Ms V Kruger, who is employed by the 1st Respondent as the Deputy Director HR in the Conditions of Service Directorate, testified at the hearing scheduled for 24 August 2021, regarding the letter of 30 April 2021. (letter at paragraph 12 above)
25. Ms Kruger said that in order to qualify as appropriate previous work experience the experience had to be with an employer who was accredited with the Department of Higher Education and Training. The experience had to be in training in a formal, structured teaching environment. The previous employers had to be accredited by the 1st Respondent to present courses or programs. Ms Kruger said that none of the NGO’s that the Applicant worked for were accredited by the 1st Respondent. (proof that the NGO’s were not registered with the 1st Respondent was handed in as Annexure D)
26. The relevant evidence for purposes of this arbitration award is the evidence surrounding the letter of 30 April 2021 and the reasons presented by the 1st Respondent for their decision not to recognise the previous work experience of the Applicant for purposes of the benefits in terms of the CA and PAM.
ANALYSIS OF EVIDENCE AND ARGUMENT
The Collective Agreements 4 and 5 of 2003
27. The purpose of the Collective Agreements is to give the same recognition for experience gained outside public schools to educators who were appointed for the first time after 1 July 1996 as for educators who were in service prior to this date. The CA distinguishes between actual and appropriate experience. Actual experience is experience gained while the person held an educator’s post inside and outside public education. Appropriate experience is experience which in the opinion of the employer developed the candidate directly and appositely in all respects regarding knowledge, skills and attitude for holding an educator’s post.
The PAM
28. The relevant part of the PAM reads as follows:
“B.8.4.3
Salary of an educator who has actual teaching or appropriate experience outside public education (ELRC Collective Agreements 5 of 2003 and 4 of 2003)
Note: Actual teaching experience outside public education includes, inter alia, experience gained in an independent school, as a SGB or college council employee, AET educator or teaching experience abroad.
Note: Appropriate experience refers to working experience, which in the opinion of the employer developed the person directly or appositely in all respects regarding knowledge, skills and attitude, for holding an educator post.”
The Applicant’s argument is that her previous work experience (outside the public sector) is appropriate experience and that she is therefore entitled to the recognition of previous work experience in terms of the CA and the PAM.
Interpretation of CA and PAM
29. In terms of the CA and the PAM the employer (1st Respondent) has a discretion (“in the opinion of the employer”) to decide what experience in their view is appropriate experience and would qualify a candidate to be entitled to obtain recognition for such experience.
30. The letter of 30 April 2021 states that the 1st Respondent did not consider the Applicant’s previous work experience to be appropriate because none of the previous organisations that the Applicant worked for were accredited with the 1st Respondent.
31. It is common cause that the entire previous work experience that the Applicant relied on was with NGO’s that are not registered with the 1st Respondent.
32. Mr Gobana argued that neither the CA nor the PAM contained any provision that previous employers and/or entities had to be registered with an institution that was accredited with the 1st Respondent. That is correct, however, neither is the 1st Respondent’s discretion limited in any way. The test for the assessment of whether a discretion is fairly exercised is set out in the Labour Court matter of Arries v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 2324 (LC). In the Arries judgment the court held that there are limited grounds on which an arbitrator, or court, may interfere with the discretion which has been exercised by a party competent to exercise that discretion. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC) the court held with reference to the Arries decision, that the overall test is one of fairness. In that case the court considered the following factors:
o Whether the employer’s decision was arbitrary, or capricious, or unfair;
o Whether the employer was motivated by bad faith;
o Whether there was insubstantial reasons for the employer’s decision;
o Whether the employer’s decision was based upon a wrong principal.
33. After a consideration of the evidence and the arguments presented by both parties and taking into consideration the case law above I concluded that the 1st Respondent is entitled to determine the threshold of what they regard to be appropriate experience. In my view the requirement that previous work experience has to be with an employer who is accredited with the 1st Respondent is not arbitrary, capricious or unfair. I am of the view that it is not unfair to require that appropriate previous work experience has to be experience appropriate for holding an educator post in an institution that is recognised and accredited by the 1st Respondent and therefore meets the minimum standard required in terms of the South African Schools Act, 1994 as amended. There is no evidence before me and it was not alleged by the Applicant that the 1st Respondent’s decision not to recognise the Applicant’s previous work experience was motivated by bad faith or that the Applicant was treated differently to other employees.
AWARD
34. The Applicant’s application is dismissed.
35. I make no order as to costs.
ADVOCATE L CHAROUX
COMMISSIONER