ELRC644-20/21 EC
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ELRC 4-20/21EC
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Award Date:
13 October 2021
IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION
HELD AT ZWELITSHA
In the arbitration between
NAPTOSA obo Hubbard, C APPLICANT
AND
HOD, Department of Basic Education, Eastern Cape RESPONDENT
ARBITRATION AWARD
CASE NUMBER: ELRC 4-20/21EC
DATE OF HEARING: 21 September 2021
DATES CLOSING ARGUMENTS RECEIVED: 28 September 2021
DATE OF SUBMISSION OF AWARD:
13 October 2021
NAME OF PANELLIST: M Huber
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council as a dispute concerning the interpretation, application and enforcement of a collective agreement. There were various sittings prior to the arbitration hearing on 21 September 2021, with a number of rulings issued on preliminary matters, culminating in the matter proceeding on 21 September 2021.
2. The Applicant, Ms C Hubbard, was represented by Advocate Saayman from NAPTOSA and the Respondent was represented by Mr. T Makina from Labour Relations.
Issue to be decided
3. The dispute has been referred and categorised as a dispute about the interpretation, application and enforcement of Collective Agreement 1 of 2012.
4. If the Applicant is successful, the outcome sought is for the Applicant be appointed to the post of a senior education therapist, to be translated from level 10 to level 12 in terms of Collective Agreement 1 of 2012, with the differences in remuneration backdated to the date of her appointment and paid to the Applicant, and to be placed on notch 827400.
Background
5. The Applicant applied for a post as Deputy Chief Education Specialist (Psychosocial Support Chief Occupational Therapist) and was appointed into this post.
6. The Applicant’s version is, in summary, that the advert for, and her appointment into, this specific position was erroneous, she raised this at the time, and she should have been appointed into a Senior Education Therapist role.
7. Collective Agreement 1 of 2012 comprises the Occupation Specific Dispensation (OSD) for Education Therapists, Counsellors and Psychologists Employed in Public Education.
8. The Applicant argues that this Collective Agreement finds application based on a particular interpretation of the provisions and based on the argument that she is in effect a Senior Education Therapist (who was erroneously appointed into the post of DCES).
9. The Respondent disagrees that the Applicant’s appointment was erroneous. She applied for a specific post, was offered it, and accepted it. She did not apply for the post of Educational Therapist. CA 1 of 2012 only applies to therapists, Counsellors and Psychologists, and not to the Applicant. The Applicant was appointed to the correct notch.
10. The Respondent believes that the relief the Applicant is seeking is one that takes the dispute to one of interest, as there is no clearly defined right to be ‘translated’. The Applicant is seeking something that she is not entitled to. She is currently in a post, it exists, her contract of employment has not been amended. The Applicant is in an OSD notch, and she has benefitted from that, if she is now appointed retrospectively to an Education Specialist, she will benefit from that, which is in effect ‘double dipping’.
Survey of evidence
10 Both parties submitted bundles of documents and were instructed to ensure their witnesses testified to the documents that they wished to bring into evidence.
11 A summary of the evidence of the parties’ witnesses is set out below. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
11. The proceedings were digitally recorded.
Applicant’s case
12. The Applicant, Ms C Hubbard, testified. She had applied for the post of Deputy Chief Education Specialist (Psychosocial Support Chief Occupational Therapist), Reference EDU0109, before the closing date of 14 October 2016. She only heard from the Department in August 2017; she was interviewed on 31 August 2017. She is the professional lead for occupational therapists in the Province.
13. The advertisement was ‘old dispensation’, the DCES dispensation, advertised in a way that was done before 2012. This was when the error occurred. They were using the old nomenclature.
14. Collective Agreement 1 of 2012, Appendix A1 shows that only therapists are appointed in the Department of Education, they are no longer appointed as DCES. She would be a Senior Education Therapist.
15. The post should have been advertised as a Senior Education Therapist, and the error crept in when the Collective Agreement (1 of 2012) was not used in the advertisement. The post was not aligned with this collective agreement. Parts of the Business Rules were read out. Her role should have been advertised as a Senior Education Therapist.
16. The letter sent to Ms. Amanda Msindwana, the Director of Inclusive Education, dated 25 October 2017, queried why the advertisement said Chief DCES and at that salary scale. When she referred to OSD she was referring to CA 1 of 2012. It did not sit well with her even then .
17. Ms Hubbard stated that she had engaged with Ms. Msindwana before accepting the post and told her that the role had been advertised incorrectly, she had been assured it would be rectified, and she ‘in blind faith believed it would be rectified’. She queried her offer and why it was not on the correct dispensation.
18. Ms. Hubbard testified about other posts, her job description, her salary notch level, salary, she referred to two senior educational therapist posts were advertised (correctly) after she had started working, and that she should have been appointed as a Senior Education Therapist, her appointment was irregular and the way to rectify this irregular appointment would be the translate her in accordance with CA 1 of 2012.
Respondent’s case
19. The Respondent called one witness, Mr. Luthuli, Acting Chief Director responsible various portfolios relating to Human Resources.
20. Mr. Luthuli testified that the post occupied by the Applicant is not irregular, nor abnormal, it is in line with other Deputy Chief Education Specialist posts in the Department. The post exists, the Applicant is being paid for that post, and it is the post she applied for, was offered, and accepted.
21. Collective Agreement 1 of 2012 was explained, and Mr. Luthuli said that after 2012 no irregular appointments had been made in this regard, and Ms Hubbard was appointed correctly as a Deputy Chief Education Specialist on OSD (Occupation Specific Dispensation). OSD corrects any disadvantage by recognising previous experience.
22. Ms. Hubbard does not qualify to be translated to a senior education therapist from her current role, in terms of CA 1 of 2012, she was appointed as a DCES, not a therapist.
23. Ms Hubbard signed acceptance of the offer made to her, she was appointed to it, and no changes have been made to that contract. The letter from Ms. Msindwana, regarding assumption of duty, cannot deviate from the appointment letter. Ms. Msindwana does not have the authority to change someone’s job title.
24. Regarding Ms. Hubbard’s letter requesting alignment of her salary scale with the two Senior Education Therapist Specialists at Head Office level, and her request that her post be brought in line or converted to be in line with these Senior Education Therapist Specialists, Mr. Luthuli stated that the appointment letter is the basis for employment, anything outside of this contract is an interest, not a right.
25. With regard to CA 1 of 2012, at that stage (2012 or earlier) if a person was at that time in a DCES post, they needed to be translated into the correct post. A person appointed after the CA would have been appointed correctly, and if the post was a DCES office-based post, it would be advertised as such. In 2016 the Department advertised a post of a senior education therapist, which demonstrates that the Department did not advertise posts incorrectly.
26. Mr Luthuli stated that the post (that the Applicant occupies) is not redundant, there is an HR plan to support it, jobs have been created, they have their titles and duties, and this post that was advertised was a DCES post, not therapist.
Closing Arguments
27. Written closing arguments were submitted by both representatives.
28. I am indebted to both representatives for the written arguments submitted. These arguments have been reduced to writing and form part of the record, and I therefore do not intend to summarise them.
29. I have read and carefully considered these arguments and will refer to certain parts of them if and where necessary.
An ‘issue in dispute’ versus ‘the dispute’
30. It is incumbent on an arbitrator to apply his or her mind to what the ‘real dispute’ in a referred matter is, where this is not clear . The Labour Appeal Court described the nature of this inquiry in Hospersa obo Tshambi v Department of Health, KwaZulu-Natal as follows:
“[16] An arbitrator is required to determine the true dispute between the parties. To that end, it is necessary to establish the relevant facts and construe the category of dispute correctly. An arbitrator must make an objective finding about what is the dispute to be determined.”
31. The Courts have highlighted the importance of identifying and determining what are issues in dispute and what the actual dispute is in the Johannesburg City Parks v Mphahlani NO & others matter, with the following explanation of the difference between a dispute and an issue in a dispute (my underlining):
“[16] There are a number of areas in the LRA which contain references to disputes or proceedings that are about the interpretation or application of collective agreements, particularly in provisions that deal with dispute resolutions. Some of the sections of the
LRA which contain such references are sections 22 and 24. In all of those sections the
references to disputes about the interpretation or application of a collective agreement are references to the main disputes sought to be resolved and not to issues that need to or may need to be answered or dealt with in order to resolve the main dispute. Let me make an example to illustrate the distinction that I seek to draw between a dispute and an issue in a dispute. One may have a situation where an employee is dismissed for operational requirements and that dismissal is challenged as unfair because it is said that in terms of a certain collective agreement the employer was supposed to follow a certain procedure before dismissing the employee but did not follow such procedure. In such a case, in determining whether the dismissal was fair or unfair, the Labour Court would have to determine whether the relevant provisions of the collective agreement were applicable to that particular dismissal. The employer may argue that, although the collective agreement is binding on the parties, the particular clause did not apply to a particular dismissal. This means that the Labour Court has to interpret and apply the collective agreement in order to resolve the dispute concerning the fairness or otherwise of the dismissal for operational requirements. So, the real dispute is about the fairness or otherwise of the dismissal and the issue of whether certain clauses of the collective agreement are applicable and or were complied with before the employee was dismissed is an issue necessary to be decided in order to resolve the real dispute.”
32. The example in the Labour Appeal Court matter, as described above, is on point with this matter – there are certain ‘issues in dispute’, and one central dispute that ultimately must be determined.
33. As set out below, the dispute referred by the Applicant as one about the interpretation and application of a collective agreement is in fact, on the one hand, either a dispute about the Applicant’s appointment (valid / invalid), which involves addressing matters such as whether a position existed at the time, what must be in place within the Department for a position to exist, and various other questions regarding, ultimately, the validity of the consequential appointment of the Applicant – i.e. was a valid contract of employment created? Of consideration in this dispute will be the application of Collective Agreement 1 of 2012, to the extent that it is shown to impact the validity of the Applicant’s appointment. On the other hand, the dispute may in fact be about the Applicant’s remuneration and linked benefits, taking into account the duties she carries out, when compared to others performing similar duties (i.e. equal pay for work of equal value). The issue of the application and impact of Collective Agreement 1 of 2012 will be an issue in dispute, in order to determine the substantive dispute or ‘main dispute’, which then determines the jurisdiction of the Forum to hear it, and the relief that can be ordered.
The actual dispute in this matter
34. In this matter, the dispute has been referred, and argued by the Applicant as a dispute about the interpretation and application of Collective Agreement 1 of 2012. This Collective Agreement is titled “Occupation Specific Dispensation (OSD) for Education Therapists, Counsellors and Psychologist Employed in Public Education.”
35. The objectives of this Collective Agreement are as follows (my underlining):
“2. OBJECTIVES
2.1 To give effect to paragraph 4 of PSCBC Resolution 1 of 2007, Agreement on improvement in salaries and other conditions of service for the financial years 2007/2008 to 2010/2011.
2.2 To introduce an occupation specific remuneration and career progression dispensation (OSD) for Physiotherapist, Speech Therapists, Occupational Therapists (hereafter referred to as Education Therapists), counsellors and psychologists employed in public education.”
36. It is common cause that the Applicant, in response to an advertisement, in 2016, applied for the post of Deputy Chief Education Specialist (Psychosocial Support Chief Occupational Therapist), she was interviewed, offered the post in 2017, and started working in January 2018.
37. In terms of the Applicant’s appointment documentation and ‘official’ position with the Respondent, the Applicant is not a therapist, and Collective Agreement 1 of 2012 would not, on the face of it, apply to her.
38. The Applicant’s basis for arguing that the collective agreement does in fact apply to her, and therefore would warrant a claim for translation, new salary level, etc, is based on the version that the advertisement for the role that she applied for was erroneous [because it did not comply with CA 1 of 2012], that she raised this in the interview process (no evidence was given to support this, to the extent that it is relevant), that she formally raised this incorrect appointment in a letter to the Respondent before appointment (the content of the letter does not support this, however), and that in terms of Collective Agreement 1 of 2012, her appointment was irregular, and she should be appointed into a Senior Education Therapist post, with all the changes required to effect this, and Council is requested to order this relief.
39. The Applicant did however sign and accept the offer letter and started working in the post of Deputy Chief Education Specialist (Psychosocial Support Chief Occupational Therapist) in January 2018 and has been remunerated accordingly for the past almost 4 years. Even if the Applicant did vociferously object to the position, the salary, amongst other aspects, of which there is no proof that she did, this would not detract from the fact that she signed and agreed to the position. She did not sign ‘conditional upon certain amendments being made’. She referred to a request for a salary notch that took her years of service into account, but did not demand this, nor indicate that her acceptance of the contract was subject to that. This is what would have needed to occur, in order for the Applicant to thereafter follow a process to address the contractual issue (escape from the contract due to non-fulfilment of her conditional acceptance; cancellation of the contract, or some similar contractual remedy). Once employed, with a valid contract, but with questions around the equity and fairness of the work content, the remuneration and benefits – then the Applicant would need to address these specific complaints, through the appropriate dispute mechanisms.
40. However, in this matter, the Applicant testified before this hearing that the advertisement for the role that she applied for, was offered, and accepted, was irregular, and the duties she fulfils along with her qualifications and experience, are those that are appropriate for a Senior Education Specialist, and her conclusion is that her role was incorrectly advertised, and in some instances, the Applicant has stated that ‘it does not exist’.
41. The Applicant testified in this arbitration hearing that she had ‘raised her objection to the post and was assured it would be rectified’. When considering the Applicant’s initial letter to Ms. Msindwana, which would be a reflection of this ‘objection’, the wording of the letter does not support the Applicant’s version of this ‘objection’.
42. In this letter, where the Applicant is accepting the post that she applied for, Deputy Chief Education Specialist (Psychosocial Support Chief Occupational Therapist), the Applicant merely expresses concern regarding her starting salary, and requests that her years of experience be taken into account when determining her starting salary. This does not reflect the objection regarding the incorrect / irregular post that she had applied for and been offered, as testified by the Applicant. It relates to a request from the Applicant that her starting salary, in the DCES role, will be determined with consideration of her prior experience.
43. Likewise, in the letter dated 26th February 2018, from the Applicant to the Chief Director: HRM & D. The Applicant in this letter indicates that she has concerns about her appointment, and she believes she was incorrectly appointed, and she indicates that “Mr. Luthuli had stated she had been correctly appointed ‘on the first salary notch’ against the post that was advertised at the time”. The concern by the Applicant was regarding her years of prior experience, and her starting salary notch.
44. The Applicant in this letter also appeals for the posts of the Senior Educations Specialists (and she categorises herself as this) to be aligned “on the same salary scale, for the delivery of the same tasks and responsibilities.”
45. The Applicant refers to the following provision from the Collective Agreement to support the argument that her appointment was irregular in terms of that Agreement:
5.1.4 REQUIREMENTS FOR APPOINTMENT AND SALARY/ GRADE/ CAREER PROGRESSION:
The introduction of appointment requirements, grade and career progression requirements for education therapists, counsellors and psychologists, subject to any statutory requirements determine by the Health Professions Council of South Africa and the South African Council for Educators (SACE), where applicable.
46. The Respondent maintains that the Applicant was appointed into a valid post, which remains valid, and any therapist posts advertised and filled subsequent to Collective Agreement 1 of 2012 have in fact complied with the appointment requirements as referred to in the Collective Agreement.
47. To further consider the true nature of the dispute in this matter, the following extracts from the Applicant’s written closing arguments are relevant:
“[12] To give clarity to OSD for therapists and psychologists to the CA 1 of 2012 the Business Rules, 3/10/1012 was introduced. Clause 3.2.2.6 of the Business provided that:
Post level 1, 2 and 3 Education therapists appointed after 1 July 2010 and who satisfy the requirements, are translated as follows:
( c) Education therapists appointed on 1 July 2012 or thereafter (my emphasis) are appointed in terms of the requirements set out in Annexure A2 (page 11* of ELRC Collective Agreement 1 of 2012).”
48. Based on the above reference, if accepted as applicable and relevant, the Applicant would have needed to be appointed as an education therapist after 1 July 2012, for this Forum to then be able to consider whether the “requirements in the annexure” referred to above are applicable.
49. The Applicant’s written submissions are clear regarding the finding that this Forum would need to make, which will then lead to consideration of the relief sought (my underlining):
“[13] Clauses 2.4 and 5.1.2 of CA 1/2021 provides for a unique remuneration structure for inter alia education therapists. The purpose of the CA is to lure specific competencies, appropriate experience and performances from outside the public education system. The applicant with more than 26 years occupational experience in the private sector was influenced and convinced that CA 1/2012 is applicable to her. That the post advertised as DCES was irregular because therapists are appointed in terms of the requirements as contained in Annexure A2 of CA1/2012 is applicable to her.
[14] The applicant is entitled to be appointed as Senior Education Therapist Specialist Grade 1 in terms of Annexure A2, p11, and Clause B.3.5.4 of PAM , P B 60, for the following reasons:
* She has the appropriate qualifications as Occupational Therapy (OT)
*She is duly registered with the HPCSA
* She has more than 3 years relevant experience in OT after registration with HPCSA.
[15] The respondent’s claim that the applicant was correctly appointed as a Deputy Chief Education Specialist (DCES) office – based occupational therapists, in terms of PAM Clause B.3.2, is misplaced for the following reasons:
* Clause B.3.2 of PAM, page B-43, deals with minimum requirements for appointment for institution- based and office based educators. B.3.2.1 states that to be appointed as DCES an educator must comply with statutory requirements, educational qualifications and experience.
* In terms of PAM B.3.2.1.2, p B-46, a DCES must have:
(a) A recognised –or 4 year qualification which includes professional teacher education. The applicant has NO professional teacher qualifications
(b ) 8 years’ experience in Education field. The applicant has no experience at the time of application.
It is clear that the recruitment process, by extension the advert, purpose was to recruit an occupational therapist and not a DCES.”
50. This dispute as described above is about the Applicant’s appointment. Whether Collective Agreement 1 of 2012, as described and argued by the Applicant, is in fact applicable and should be interpreted in the manner suggested, is ‘an issue in dispute’, in order to determine the actual dispute, being that the Applicant believes that her appointment was ‘erroneous’. Considering this further, the Applicant’s claim that the advertisement that she applied for was irregular effectively means that the advertisement should have been for a different post altogether.
51. The Applicant is seeking this Forum to find that her appointment was erroneous. Council does not have jurisdiction over a dispute of this nature. If the matter involves a complaint relating to the Applicant’s lower remuneration when compared to others who are carrying out ‘equal work of equal value’ to her, then this dispute would be an unfair discrimination dispute. In any event, the Applicant would need to have clearly identified the dispute, and what relief she sought, and then determined the correct Forum to refer it to.
52. The dispute that the Applicant has referred to this Forum is not one about the interpretation and application of a collective agreement.
53. The Council will have jurisdiction over this matter if it a dispute about interpretation and application of a collective agreement. If it does not, then the Council does not have jurisdiction, as confirmed by the Labour Court in Arends and Others v South African Local Government Bargaining Council and Others (my underlining):
“[21] Jurisdiction obtains in two forms. Firstly, certain facts must exist before a power to decide arises. That part is known as objective jurisdictional facts. Secondly, an instrument must give that authority. That is the power itself. Often times, it is located in a statute or regulation. In relation to this particular matter, the section allows conciliation and arbitration. However, if the objective jurisdictional facts are absent, there is no power irrespective of the exercising of the power in terms of the empowering legislation.
[22] The jurisdictional facts appertaining to this matter are what the nature of the dispute is and the contesting persons. An appointed functionary must satisfy himself or herself that the dispute brought under section 24 concerns a collective agreement and its application or interpretation. If the dispute concerns something else, then it is not justiciable under section 24 and the repository of power is handicapped.”
54. The dispute in this matter does not concern the interpretation and / or application of collective agreement 1 of 2012. It concerns ‘something else’, for example a contract of employment that was null and void from the outset (if erroneous / irregular from inception, this would usually be the legal consequence), or parity of remuneration between specific functions.
55. Finding
56. This dispute is not one about the interpretation and application of a collective agreement. Whether the dispute is in fact one about the Applicant’s alleged irregular appointment, whether her function is incorrectly described / does not exist, or if the Applicant’s dispute is that she is remunerated unfairly compared to other persons, whom the Applicant believes she should be paid equally to, I am unable to determine.
57. The application and interpretation of Collective Agreement 1 of 2012 is, at best, a ‘further issue in dispute’ to be determined, in order to reach a finding on the actual dispute.
58. The Council therefore does not have jurisdiction over this dispute.
Costs
59. The arbitration hearing scheduled for 29 July 2021 was postponed due to the failure of the Respondent’s representative, Mr Makina, to attend. The Applicant and her representative were in attendance. Mr. Makina was attending a 3-day section 188A hearing, involving sexual misconduct against a minor. That matter had been scheduled after this matter, so Mr. Makina was able to request a postponement of the sitting on 29 July 2021, thus avoiding the wasted costs of the NAPTOSA, which involved travel from Gqeberha to Zwelitsha, and a return journey.
60. The Applicant therefore requested that the costs of travel (mileage) for travelling to and from the arbitration venue be awarded against the Respondent.
61. Mr. Makina was provided with an opportunity in his closing argument to argue against an order being made against the Respondent for these ‘wasted costs’.
62. In summary, Mr. Makina has submitted that, at the time of setting the conflicting date in the section 188A matter [which meant he could not attend the arbitration hearing in this matter], he was attending to consultations with young learner victims of sexual misconduct. The matters need to be attended to urgently, failing which the cases rise exponentially. The learner in the specific matter had had to leave school due to the incident/s, and Mr. Makina was involved in trying to find an alternative school for her.
63. Mr. Makina was also ‘on the road’ continuously, travelling for these matters, and it was an oversight that he failed to realise that the current matter had been booked on the same day, and he had not in fact requested a postponement. The 188A matters cause him stress due to their nature / content, and his own family situation with daughters causes an additional impact for him. It was an oversight, which he expresses regret for.
64. He requests that the Applicant as well as Council accepts that his actions were not frivolous or vexatious and were not intended to show disrespect, and that costs are not awarded in this instance.
65. Clause 54 of Part C of the ELRC Constitution (2021) provides as follows:
“54 Costs
54.1 In any arbitration proceedings, the commissioner may make an order for the payment of costs according to the requirements of law and fairness and when doing so should have regards to:
54.1.1 The measure of success that the parties achieved;
54.1.2 Considerations of fairness that weigh in favour of or against granting a cost order;
54.1.3 Any with prejudice offers that were made with a view to settling the dispute;
54.1.4 Whether a party or the person who represented that party in the arbitration proceedings acted in a frivolous and vexatious manner-
54.1.4.1By proceeding with or defending the dispute in the arbitration proceedings, or
54.1.4.2 In its conduct during the arbitration proceedings;
54.1.5 The effect that a cost order may have on a continued employment relationship;
54.1.6 Any agreement concluded between the parties to the arbitration concerning the basis on which costs should be awarded:
54.1.7 The importance of the issues raised during the arbitration to the parties as well as to the labour community at large;
54.1.8 Any other relevant factor.”
66. Taking into account all the relevant principles, the facts of this case and more particularly the following factors, I do not believe that it would be just and equitable to make a costs order in this case:
65.1 The Respondent has not attempted to misrepresent the non-attendance;
65.2 The Forum and Applicant saw evidence that at that time, Mr. Makina was representing the Respondent in a 3-day section 188A matter in Cradock, a significant distance to travel, and the Commissioner is also aware that these matters are often held in areas that involve a significant amount of travel;
65.3 It is accepted that Mr. Makina would have been ‘on the road’ and it is accepted that the stress of these matters, on any adult, but particularly the person responsible in many ways and preparing them to testify, is not insignificant and would take its toll on a person;
65.4 The Respondent and the trade union, NAPTOSA, have a long-standing relationship, and they will continue to interact in matters involving employment disputes.
Award
67. This dispute is not about the interpretation and application of a collective agreement and the Council accordingly does not have jurisdiction over it.
68. The matter is dismissed.
69. No order is made in respect of costs.
SIGNED AT MAKHANDA ON THIS 13th DAY OF OCTOBER 2021.
M HUBER
HELD AT ZWELITSHA
In the arbitration between
NAPTOSA obo Hubbard, C APPLICANT
AND
HOD, Department of Basic Education, Eastern Cape RESPONDENT
ARBITRATION AWARD
CASE NUMBER: ELRC 4-20/21EC
DATE OF HEARING: 21 September 2021
DATES CLOSING ARGUMENTS RECEIVED: 28 September 2021
DATE OF SUBMISSION OF AWARD:
13 October 2021
NAME OF PANELLIST: M Huber
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council as a dispute concerning the interpretation, application and enforcement of a collective agreement. There were various sittings prior to the arbitration hearing on 21 September 2021, with a number of rulings issued on preliminary matters, culminating in the matter proceeding on 21 September 2021.
2. The Applicant, Ms C Hubbard, was represented by Advocate Saayman from NAPTOSA and the Respondent was represented by Mr. T Makina from Labour Relations.
Issue to be decided
3. The dispute has been referred and categorised as a dispute about the interpretation, application and enforcement of Collective Agreement 1 of 2012.
4. If the Applicant is successful, the outcome sought is for the Applicant be appointed to the post of a senior education therapist, to be translated from level 10 to level 12 in terms of Collective Agreement 1 of 2012, with the differences in remuneration backdated to the date of her appointment and paid to the Applicant, and to be placed on notch 827400.
Background
5. The Applicant applied for a post as Deputy Chief Education Specialist (Psychosocial Support Chief Occupational Therapist) and was appointed into this post.
6. The Applicant’s version is, in summary, that the advert for, and her appointment into, this specific position was erroneous, she raised this at the time, and she should have been appointed into a Senior Education Therapist role.
7. Collective Agreement 1 of 2012 comprises the Occupation Specific Dispensation (OSD) for Education Therapists, Counsellors and Psychologists Employed in Public Education.
8. The Applicant argues that this Collective Agreement finds application based on a particular interpretation of the provisions and based on the argument that she is in effect a Senior Education Therapist (who was erroneously appointed into the post of DCES).
9. The Respondent disagrees that the Applicant’s appointment was erroneous. She applied for a specific post, was offered it, and accepted it. She did not apply for the post of Educational Therapist. CA 1 of 2012 only applies to therapists, Counsellors and Psychologists, and not to the Applicant. The Applicant was appointed to the correct notch.
10. The Respondent believes that the relief the Applicant is seeking is one that takes the dispute to one of interest, as there is no clearly defined right to be ‘translated’. The Applicant is seeking something that she is not entitled to. She is currently in a post, it exists, her contract of employment has not been amended. The Applicant is in an OSD notch, and she has benefitted from that, if she is now appointed retrospectively to an Education Specialist, she will benefit from that, which is in effect ‘double dipping’.
Survey of evidence
10 Both parties submitted bundles of documents and were instructed to ensure their witnesses testified to the documents that they wished to bring into evidence.
11 A summary of the evidence of the parties’ witnesses is set out below. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
11. The proceedings were digitally recorded.
Applicant’s case
12. The Applicant, Ms C Hubbard, testified. She had applied for the post of Deputy Chief Education Specialist (Psychosocial Support Chief Occupational Therapist), Reference EDU0109, before the closing date of 14 October 2016. She only heard from the Department in August 2017; she was interviewed on 31 August 2017. She is the professional lead for occupational therapists in the Province.
13. The advertisement was ‘old dispensation’, the DCES dispensation, advertised in a way that was done before 2012. This was when the error occurred. They were using the old nomenclature.
14. Collective Agreement 1 of 2012, Appendix A1 shows that only therapists are appointed in the Department of Education, they are no longer appointed as DCES. She would be a Senior Education Therapist.
15. The post should have been advertised as a Senior Education Therapist, and the error crept in when the Collective Agreement (1 of 2012) was not used in the advertisement. The post was not aligned with this collective agreement. Parts of the Business Rules were read out. Her role should have been advertised as a Senior Education Therapist.
16. The letter sent to Ms. Amanda Msindwana, the Director of Inclusive Education, dated 25 October 2017, queried why the advertisement said Chief DCES and at that salary scale. When she referred to OSD she was referring to CA 1 of 2012. It did not sit well with her even then .
17. Ms Hubbard stated that she had engaged with Ms. Msindwana before accepting the post and told her that the role had been advertised incorrectly, she had been assured it would be rectified, and she ‘in blind faith believed it would be rectified’. She queried her offer and why it was not on the correct dispensation.
18. Ms. Hubbard testified about other posts, her job description, her salary notch level, salary, she referred to two senior educational therapist posts were advertised (correctly) after she had started working, and that she should have been appointed as a Senior Education Therapist, her appointment was irregular and the way to rectify this irregular appointment would be the translate her in accordance with CA 1 of 2012.
Respondent’s case
19. The Respondent called one witness, Mr. Luthuli, Acting Chief Director responsible various portfolios relating to Human Resources.
20. Mr. Luthuli testified that the post occupied by the Applicant is not irregular, nor abnormal, it is in line with other Deputy Chief Education Specialist posts in the Department. The post exists, the Applicant is being paid for that post, and it is the post she applied for, was offered, and accepted.
21. Collective Agreement 1 of 2012 was explained, and Mr. Luthuli said that after 2012 no irregular appointments had been made in this regard, and Ms Hubbard was appointed correctly as a Deputy Chief Education Specialist on OSD (Occupation Specific Dispensation). OSD corrects any disadvantage by recognising previous experience.
22. Ms. Hubbard does not qualify to be translated to a senior education therapist from her current role, in terms of CA 1 of 2012, she was appointed as a DCES, not a therapist.
23. Ms Hubbard signed acceptance of the offer made to her, she was appointed to it, and no changes have been made to that contract. The letter from Ms. Msindwana, regarding assumption of duty, cannot deviate from the appointment letter. Ms. Msindwana does not have the authority to change someone’s job title.
24. Regarding Ms. Hubbard’s letter requesting alignment of her salary scale with the two Senior Education Therapist Specialists at Head Office level, and her request that her post be brought in line or converted to be in line with these Senior Education Therapist Specialists, Mr. Luthuli stated that the appointment letter is the basis for employment, anything outside of this contract is an interest, not a right.
25. With regard to CA 1 of 2012, at that stage (2012 or earlier) if a person was at that time in a DCES post, they needed to be translated into the correct post. A person appointed after the CA would have been appointed correctly, and if the post was a DCES office-based post, it would be advertised as such. In 2016 the Department advertised a post of a senior education therapist, which demonstrates that the Department did not advertise posts incorrectly.
26. Mr Luthuli stated that the post (that the Applicant occupies) is not redundant, there is an HR plan to support it, jobs have been created, they have their titles and duties, and this post that was advertised was a DCES post, not therapist.
Closing Arguments
27. Written closing arguments were submitted by both representatives.
28. I am indebted to both representatives for the written arguments submitted. These arguments have been reduced to writing and form part of the record, and I therefore do not intend to summarise them.
29. I have read and carefully considered these arguments and will refer to certain parts of them if and where necessary.
An ‘issue in dispute’ versus ‘the dispute’
30. It is incumbent on an arbitrator to apply his or her mind to what the ‘real dispute’ in a referred matter is, where this is not clear . The Labour Appeal Court described the nature of this inquiry in Hospersa obo Tshambi v Department of Health, KwaZulu-Natal as follows:
“[16] An arbitrator is required to determine the true dispute between the parties. To that end, it is necessary to establish the relevant facts and construe the category of dispute correctly. An arbitrator must make an objective finding about what is the dispute to be determined.”
31. The Courts have highlighted the importance of identifying and determining what are issues in dispute and what the actual dispute is in the Johannesburg City Parks v Mphahlani NO & others matter, with the following explanation of the difference between a dispute and an issue in a dispute (my underlining):
“[16] There are a number of areas in the LRA which contain references to disputes or proceedings that are about the interpretation or application of collective agreements, particularly in provisions that deal with dispute resolutions. Some of the sections of the
LRA which contain such references are sections 22 and 24. In all of those sections the
references to disputes about the interpretation or application of a collective agreement are references to the main disputes sought to be resolved and not to issues that need to or may need to be answered or dealt with in order to resolve the main dispute. Let me make an example to illustrate the distinction that I seek to draw between a dispute and an issue in a dispute. One may have a situation where an employee is dismissed for operational requirements and that dismissal is challenged as unfair because it is said that in terms of a certain collective agreement the employer was supposed to follow a certain procedure before dismissing the employee but did not follow such procedure. In such a case, in determining whether the dismissal was fair or unfair, the Labour Court would have to determine whether the relevant provisions of the collective agreement were applicable to that particular dismissal. The employer may argue that, although the collective agreement is binding on the parties, the particular clause did not apply to a particular dismissal. This means that the Labour Court has to interpret and apply the collective agreement in order to resolve the dispute concerning the fairness or otherwise of the dismissal for operational requirements. So, the real dispute is about the fairness or otherwise of the dismissal and the issue of whether certain clauses of the collective agreement are applicable and or were complied with before the employee was dismissed is an issue necessary to be decided in order to resolve the real dispute.”
32. The example in the Labour Appeal Court matter, as described above, is on point with this matter – there are certain ‘issues in dispute’, and one central dispute that ultimately must be determined.
33. As set out below, the dispute referred by the Applicant as one about the interpretation and application of a collective agreement is in fact, on the one hand, either a dispute about the Applicant’s appointment (valid / invalid), which involves addressing matters such as whether a position existed at the time, what must be in place within the Department for a position to exist, and various other questions regarding, ultimately, the validity of the consequential appointment of the Applicant – i.e. was a valid contract of employment created? Of consideration in this dispute will be the application of Collective Agreement 1 of 2012, to the extent that it is shown to impact the validity of the Applicant’s appointment. On the other hand, the dispute may in fact be about the Applicant’s remuneration and linked benefits, taking into account the duties she carries out, when compared to others performing similar duties (i.e. equal pay for work of equal value). The issue of the application and impact of Collective Agreement 1 of 2012 will be an issue in dispute, in order to determine the substantive dispute or ‘main dispute’, which then determines the jurisdiction of the Forum to hear it, and the relief that can be ordered.
The actual dispute in this matter
34. In this matter, the dispute has been referred, and argued by the Applicant as a dispute about the interpretation and application of Collective Agreement 1 of 2012. This Collective Agreement is titled “Occupation Specific Dispensation (OSD) for Education Therapists, Counsellors and Psychologist Employed in Public Education.”
35. The objectives of this Collective Agreement are as follows (my underlining):
“2. OBJECTIVES
2.1 To give effect to paragraph 4 of PSCBC Resolution 1 of 2007, Agreement on improvement in salaries and other conditions of service for the financial years 2007/2008 to 2010/2011.
2.2 To introduce an occupation specific remuneration and career progression dispensation (OSD) for Physiotherapist, Speech Therapists, Occupational Therapists (hereafter referred to as Education Therapists), counsellors and psychologists employed in public education.”
36. It is common cause that the Applicant, in response to an advertisement, in 2016, applied for the post of Deputy Chief Education Specialist (Psychosocial Support Chief Occupational Therapist), she was interviewed, offered the post in 2017, and started working in January 2018.
37. In terms of the Applicant’s appointment documentation and ‘official’ position with the Respondent, the Applicant is not a therapist, and Collective Agreement 1 of 2012 would not, on the face of it, apply to her.
38. The Applicant’s basis for arguing that the collective agreement does in fact apply to her, and therefore would warrant a claim for translation, new salary level, etc, is based on the version that the advertisement for the role that she applied for was erroneous [because it did not comply with CA 1 of 2012], that she raised this in the interview process (no evidence was given to support this, to the extent that it is relevant), that she formally raised this incorrect appointment in a letter to the Respondent before appointment (the content of the letter does not support this, however), and that in terms of Collective Agreement 1 of 2012, her appointment was irregular, and she should be appointed into a Senior Education Therapist post, with all the changes required to effect this, and Council is requested to order this relief.
39. The Applicant did however sign and accept the offer letter and started working in the post of Deputy Chief Education Specialist (Psychosocial Support Chief Occupational Therapist) in January 2018 and has been remunerated accordingly for the past almost 4 years. Even if the Applicant did vociferously object to the position, the salary, amongst other aspects, of which there is no proof that she did, this would not detract from the fact that she signed and agreed to the position. She did not sign ‘conditional upon certain amendments being made’. She referred to a request for a salary notch that took her years of service into account, but did not demand this, nor indicate that her acceptance of the contract was subject to that. This is what would have needed to occur, in order for the Applicant to thereafter follow a process to address the contractual issue (escape from the contract due to non-fulfilment of her conditional acceptance; cancellation of the contract, or some similar contractual remedy). Once employed, with a valid contract, but with questions around the equity and fairness of the work content, the remuneration and benefits – then the Applicant would need to address these specific complaints, through the appropriate dispute mechanisms.
40. However, in this matter, the Applicant testified before this hearing that the advertisement for the role that she applied for, was offered, and accepted, was irregular, and the duties she fulfils along with her qualifications and experience, are those that are appropriate for a Senior Education Specialist, and her conclusion is that her role was incorrectly advertised, and in some instances, the Applicant has stated that ‘it does not exist’.
41. The Applicant testified in this arbitration hearing that she had ‘raised her objection to the post and was assured it would be rectified’. When considering the Applicant’s initial letter to Ms. Msindwana, which would be a reflection of this ‘objection’, the wording of the letter does not support the Applicant’s version of this ‘objection’.
42. In this letter, where the Applicant is accepting the post that she applied for, Deputy Chief Education Specialist (Psychosocial Support Chief Occupational Therapist), the Applicant merely expresses concern regarding her starting salary, and requests that her years of experience be taken into account when determining her starting salary. This does not reflect the objection regarding the incorrect / irregular post that she had applied for and been offered, as testified by the Applicant. It relates to a request from the Applicant that her starting salary, in the DCES role, will be determined with consideration of her prior experience.
43. Likewise, in the letter dated 26th February 2018, from the Applicant to the Chief Director: HRM & D. The Applicant in this letter indicates that she has concerns about her appointment, and she believes she was incorrectly appointed, and she indicates that “Mr. Luthuli had stated she had been correctly appointed ‘on the first salary notch’ against the post that was advertised at the time”. The concern by the Applicant was regarding her years of prior experience, and her starting salary notch.
44. The Applicant in this letter also appeals for the posts of the Senior Educations Specialists (and she categorises herself as this) to be aligned “on the same salary scale, for the delivery of the same tasks and responsibilities.”
45. The Applicant refers to the following provision from the Collective Agreement to support the argument that her appointment was irregular in terms of that Agreement:
5.1.4 REQUIREMENTS FOR APPOINTMENT AND SALARY/ GRADE/ CAREER PROGRESSION:
The introduction of appointment requirements, grade and career progression requirements for education therapists, counsellors and psychologists, subject to any statutory requirements determine by the Health Professions Council of South Africa and the South African Council for Educators (SACE), where applicable.
46. The Respondent maintains that the Applicant was appointed into a valid post, which remains valid, and any therapist posts advertised and filled subsequent to Collective Agreement 1 of 2012 have in fact complied with the appointment requirements as referred to in the Collective Agreement.
47. To further consider the true nature of the dispute in this matter, the following extracts from the Applicant’s written closing arguments are relevant:
“[12] To give clarity to OSD for therapists and psychologists to the CA 1 of 2012 the Business Rules, 3/10/1012 was introduced. Clause 3.2.2.6 of the Business provided that:
Post level 1, 2 and 3 Education therapists appointed after 1 July 2010 and who satisfy the requirements, are translated as follows:
( c) Education therapists appointed on 1 July 2012 or thereafter (my emphasis) are appointed in terms of the requirements set out in Annexure A2 (page 11* of ELRC Collective Agreement 1 of 2012).”
48. Based on the above reference, if accepted as applicable and relevant, the Applicant would have needed to be appointed as an education therapist after 1 July 2012, for this Forum to then be able to consider whether the “requirements in the annexure” referred to above are applicable.
49. The Applicant’s written submissions are clear regarding the finding that this Forum would need to make, which will then lead to consideration of the relief sought (my underlining):
“[13] Clauses 2.4 and 5.1.2 of CA 1/2021 provides for a unique remuneration structure for inter alia education therapists. The purpose of the CA is to lure specific competencies, appropriate experience and performances from outside the public education system. The applicant with more than 26 years occupational experience in the private sector was influenced and convinced that CA 1/2012 is applicable to her. That the post advertised as DCES was irregular because therapists are appointed in terms of the requirements as contained in Annexure A2 of CA1/2012 is applicable to her.
[14] The applicant is entitled to be appointed as Senior Education Therapist Specialist Grade 1 in terms of Annexure A2, p11, and Clause B.3.5.4 of PAM , P B 60, for the following reasons:
* She has the appropriate qualifications as Occupational Therapy (OT)
*She is duly registered with the HPCSA
* She has more than 3 years relevant experience in OT after registration with HPCSA.
[15] The respondent’s claim that the applicant was correctly appointed as a Deputy Chief Education Specialist (DCES) office – based occupational therapists, in terms of PAM Clause B.3.2, is misplaced for the following reasons:
* Clause B.3.2 of PAM, page B-43, deals with minimum requirements for appointment for institution- based and office based educators. B.3.2.1 states that to be appointed as DCES an educator must comply with statutory requirements, educational qualifications and experience.
* In terms of PAM B.3.2.1.2, p B-46, a DCES must have:
(a) A recognised –or 4 year qualification which includes professional teacher education. The applicant has NO professional teacher qualifications
(b ) 8 years’ experience in Education field. The applicant has no experience at the time of application.
It is clear that the recruitment process, by extension the advert, purpose was to recruit an occupational therapist and not a DCES.”
50. This dispute as described above is about the Applicant’s appointment. Whether Collective Agreement 1 of 2012, as described and argued by the Applicant, is in fact applicable and should be interpreted in the manner suggested, is ‘an issue in dispute’, in order to determine the actual dispute, being that the Applicant believes that her appointment was ‘erroneous’. Considering this further, the Applicant’s claim that the advertisement that she applied for was irregular effectively means that the advertisement should have been for a different post altogether.
51. The Applicant is seeking this Forum to find that her appointment was erroneous. Council does not have jurisdiction over a dispute of this nature. If the matter involves a complaint relating to the Applicant’s lower remuneration when compared to others who are carrying out ‘equal work of equal value’ to her, then this dispute would be an unfair discrimination dispute. In any event, the Applicant would need to have clearly identified the dispute, and what relief she sought, and then determined the correct Forum to refer it to.
52. The dispute that the Applicant has referred to this Forum is not one about the interpretation and application of a collective agreement.
53. The Council will have jurisdiction over this matter if it a dispute about interpretation and application of a collective agreement. If it does not, then the Council does not have jurisdiction, as confirmed by the Labour Court in Arends and Others v South African Local Government Bargaining Council and Others (my underlining):
“[21] Jurisdiction obtains in two forms. Firstly, certain facts must exist before a power to decide arises. That part is known as objective jurisdictional facts. Secondly, an instrument must give that authority. That is the power itself. Often times, it is located in a statute or regulation. In relation to this particular matter, the section allows conciliation and arbitration. However, if the objective jurisdictional facts are absent, there is no power irrespective of the exercising of the power in terms of the empowering legislation.
[22] The jurisdictional facts appertaining to this matter are what the nature of the dispute is and the contesting persons. An appointed functionary must satisfy himself or herself that the dispute brought under section 24 concerns a collective agreement and its application or interpretation. If the dispute concerns something else, then it is not justiciable under section 24 and the repository of power is handicapped.”
54. The dispute in this matter does not concern the interpretation and / or application of collective agreement 1 of 2012. It concerns ‘something else’, for example a contract of employment that was null and void from the outset (if erroneous / irregular from inception, this would usually be the legal consequence), or parity of remuneration between specific functions.
55. Finding
56. This dispute is not one about the interpretation and application of a collective agreement. Whether the dispute is in fact one about the Applicant’s alleged irregular appointment, whether her function is incorrectly described / does not exist, or if the Applicant’s dispute is that she is remunerated unfairly compared to other persons, whom the Applicant believes she should be paid equally to, I am unable to determine.
57. The application and interpretation of Collective Agreement 1 of 2012 is, at best, a ‘further issue in dispute’ to be determined, in order to reach a finding on the actual dispute.
58. The Council therefore does not have jurisdiction over this dispute.
Costs
59. The arbitration hearing scheduled for 29 July 2021 was postponed due to the failure of the Respondent’s representative, Mr Makina, to attend. The Applicant and her representative were in attendance. Mr. Makina was attending a 3-day section 188A hearing, involving sexual misconduct against a minor. That matter had been scheduled after this matter, so Mr. Makina was able to request a postponement of the sitting on 29 July 2021, thus avoiding the wasted costs of the NAPTOSA, which involved travel from Gqeberha to Zwelitsha, and a return journey.
60. The Applicant therefore requested that the costs of travel (mileage) for travelling to and from the arbitration venue be awarded against the Respondent.
61. Mr. Makina was provided with an opportunity in his closing argument to argue against an order being made against the Respondent for these ‘wasted costs’.
62. In summary, Mr. Makina has submitted that, at the time of setting the conflicting date in the section 188A matter [which meant he could not attend the arbitration hearing in this matter], he was attending to consultations with young learner victims of sexual misconduct. The matters need to be attended to urgently, failing which the cases rise exponentially. The learner in the specific matter had had to leave school due to the incident/s, and Mr. Makina was involved in trying to find an alternative school for her.
63. Mr. Makina was also ‘on the road’ continuously, travelling for these matters, and it was an oversight that he failed to realise that the current matter had been booked on the same day, and he had not in fact requested a postponement. The 188A matters cause him stress due to their nature / content, and his own family situation with daughters causes an additional impact for him. It was an oversight, which he expresses regret for.
64. He requests that the Applicant as well as Council accepts that his actions were not frivolous or vexatious and were not intended to show disrespect, and that costs are not awarded in this instance.
65. Clause 54 of Part C of the ELRC Constitution (2021) provides as follows:
“54 Costs
54.1 In any arbitration proceedings, the commissioner may make an order for the payment of costs according to the requirements of law and fairness and when doing so should have regards to:
54.1.1 The measure of success that the parties achieved;
54.1.2 Considerations of fairness that weigh in favour of or against granting a cost order;
54.1.3 Any with prejudice offers that were made with a view to settling the dispute;
54.1.4 Whether a party or the person who represented that party in the arbitration proceedings acted in a frivolous and vexatious manner-
54.1.4.1By proceeding with or defending the dispute in the arbitration proceedings, or
54.1.4.2 In its conduct during the arbitration proceedings;
54.1.5 The effect that a cost order may have on a continued employment relationship;
54.1.6 Any agreement concluded between the parties to the arbitration concerning the basis on which costs should be awarded:
54.1.7 The importance of the issues raised during the arbitration to the parties as well as to the labour community at large;
54.1.8 Any other relevant factor.”
66. Taking into account all the relevant principles, the facts of this case and more particularly the following factors, I do not believe that it would be just and equitable to make a costs order in this case:
65.1 The Respondent has not attempted to misrepresent the non-attendance;
65.2 The Forum and Applicant saw evidence that at that time, Mr. Makina was representing the Respondent in a 3-day section 188A matter in Cradock, a significant distance to travel, and the Commissioner is also aware that these matters are often held in areas that involve a significant amount of travel;
65.3 It is accepted that Mr. Makina would have been ‘on the road’ and it is accepted that the stress of these matters, on any adult, but particularly the person responsible in many ways and preparing them to testify, is not insignificant and would take its toll on a person;
65.4 The Respondent and the trade union, NAPTOSA, have a long-standing relationship, and they will continue to interact in matters involving employment disputes.
Award
67. This dispute is not about the interpretation and application of a collective agreement and the Council accordingly does not have jurisdiction over it.
68. The matter is dismissed.
69. No order is made in respect of costs.
SIGNED AT MAKHANDA ON THIS 13th DAY OF OCTOBER 2021.
M HUBER