ELRC644-20/21 EC
Text
ELRC 426-21/22EC
Award Date:
18 December 2022
AWARD
Commissioner: L.CHAROUX
Case Reference no: ELRC 426-21/22EC
Date of Award: 18 January 2022
In the arbitration between
M J MBONISWA APPLICANT
AND
DEPARTMENT OF EDUCATION EC RESPONDENT
On behalf of the Applicant: the Applicant represented himself
On behalf of the Respondent: Ms A Slabbert of the DOE EC
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down for an arbitration hearing via zoom on 10 December 2021. The Applicant represented himself. The Respondent was represented by Ms A Slabbert of the DOE EC.
2. The Applicant referred an alleged unfair labour practice dispute relating to demotion to the ELRC on 9 September 2021.
3. The parties signed a pre-arbitration minute which reflects as follows:
o The Applicant previously rendered services as a School Principal at Nangamso High School in King Williamstown in the Eastern Cape.
o The Applicant applied for the post of SES - Curriculum Management support FET Band and Abet Centre, which was advertised in the Vacancy Circular 25 of 2018/2019 of the DOE Eastern Cape with closing date 22 February 2019. (“SES” position)
o The SES position was in the Nelson Mandela Bay District.
o The Applicant’s application was successful and he was subsequently appointed to the SES position with effect 1 January 2020.
o The Applicant was appointed on a salary notch of R415 245.
o The Applicant claims that he should have been appointed on a salary notch of R422 340.
4. The Applicant is seeking the following relief:
To be retained on PL4 and on the PL4 salary he was earning as a principal prior to accepting the offer of employment for the SES position, backdated to 1 January 2020.
5. The Respondent handed in a bundle of documents of 13 pages.
o Page 1 of the Bundle: The advertisement for the post of SES. The salary package is indicated as R391 677 per annum.
o Page 2 of the Bundle: An offer of appointment to the SES position addressed to the Applicant dated 1 December 2019. Salary notch R415 245. Date of effect 1 January 2020. Work station Nelson Mandela Bay District.
o Page 3 of the Bundle: A letter of acceptance of the SES appointment signed by the Applicant on 3 December 2019.
ISSUES TO BE DECIDED
6. Whether the DOE EC committed an unfair labour practice against the Applicant by appointing him on the lower salary scale of R415 245.
EVIDENCE
APPLICANT’S EVIDENCE
7. Mr MJ Mboniswa testified as follows:
o He applied for the SES position whilst he was a principal in King Williamstown.
o He said the reason for his application was because he was going through a very difficult divorce and experiencing psychological problems at the time. He said he felt he had to move away from a toxic environment.
o The Applicant said that the salary scale for the SES position was reflected as between R415 295.00 and R935 193.00 on the offer of appointment letter. He said he knew he was in between the minimum and maximum salary scale and that he would be accommodated.
o The Applicant blamed HR for his dilemma. He said he made several attempts to contact HR before and after signing his contract without success and felt aggrieved that he was unable to reach anybody to assist him as he needed guidance in the matter. The Applicant said he signed the acceptance letter because he was concerned that the offer would lapse. The offer was valid for 7 days. He said in his eagerness to leave King Williamstown he signed the contract and decided that he could negotiate when he got to Port Elizabeth.
o During cross-examination Ms Slabbert put it to the Applicant that the advertisement was placed in February 2019 and clearly stated that the salary package was R391 677 per annum. The Applicant therefore had ample time to enquire about the salary package. She put it to the Applicant that he was desperate to leave King Williamstown and that is why he signed the acceptance letter. The Applicant admitted that he was desperate.
RESPONDENT’S EVIDENCE
8. Ms K Bence, the HR Recruitment officer of the Respondent testified as follows:
o She has been employed by the Respondent for 28 years.
o She works in the Department of HR Recruitment and deals with applications from the advert to appointment stage. She has been in that job for 12 years.
o Bence said that the Applicant was in contact with her prior to signing the contract and that she informed him that the position was 4 notches lower than his position as a principal.
o Bence referred to the PAM paragraph B 8.7 which states that when an employee is voluntarily appointed to a lower post the employee’s position will be decreased by 6 notches. As a principal the Applicant was on Post Level 4. The SES position is a Post Level 3 position. Bence said the Applicant’s position was decreased by 4 notches instead of 6 because it was not possible to decrease the notches more than 4 as per the PAM as the entry level for the SES post was 4 notches below that of a principal position. If the Applicant’s position was decreased by 6 notches he would not have qualified for the SES position. He was placed on the minimum notch for Post Level 3.
o During cross-examination the Applicant put it to Bence that she lied when she said she spoke to him prior to him signing the acceptance letter. He was adamant that he never spoke to Bence prior to signing the contract.
o Bence said that she emailed the offer of the SES position to the Applicant and he returned the signed acceptance letter to her. The Applicant confirmed that is what happened.
ANALYSIS OF EVIDENCE AND ARGUMENTS
9. After a consideration of the evidence and arguments presented by both parties I find that the Respondent did not commit an unfair labour practice against the Applicant for the following reasons:
10. The Applicant signed the acceptance letter which clearly indicated that he would be appointed on the salary notch of R415 245 per annum. There was no ambiguity in the offer.
11. The Applicant’s assumption that he would be appointed on a salary scale somewhere between the minimum and maximum salary scale for the SES position (R415 295.00 - R935 193.00) was clearly incorrect. Bence explained how the Applicant’s salary notch was determined in terms of paragraph B 8.7 of the PAM.
12. The advert was placed in February 2019. The Applicant therefore had ample time to enquire about the position.
13. Ms Slabbert pointed out that as a principal the Applicant was expected to be familiar with the PAM.
14. The Applicant could have made any enquiries he had about the SES position to Bence when she sent him the offer which he failed to do. Instead of directing his queries to her the Applicant signed the offer and accepted the position.
15. On his own version the Applicant was desperate to leave King Williamstown and signed the contract with the hope of negotiating a better deal once he arrived in Port Elizabeth.
AWARD
16. The Applicant’s application is dismissed.
17. I make no order as to costs.
SIGNED AND DATED ON 18 JANUARY 2022
ADVOCATE L CHAROUX
COMMISSIONER
Commissioner: L.CHAROUX
Case Reference no: ELRC 426-21/22EC
Date of Award: 18 January 2022
In the arbitration between
M J MBONISWA APPLICANT
AND
DEPARTMENT OF EDUCATION EC RESPONDENT
On behalf of the Applicant: the Applicant represented himself
On behalf of the Respondent: Ms A Slabbert of the DOE EC
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down for an arbitration hearing via zoom on 10 December 2021. The Applicant represented himself. The Respondent was represented by Ms A Slabbert of the DOE EC.
2. The Applicant referred an alleged unfair labour practice dispute relating to demotion to the ELRC on 9 September 2021.
3. The parties signed a pre-arbitration minute which reflects as follows:
o The Applicant previously rendered services as a School Principal at Nangamso High School in King Williamstown in the Eastern Cape.
o The Applicant applied for the post of SES - Curriculum Management support FET Band and Abet Centre, which was advertised in the Vacancy Circular 25 of 2018/2019 of the DOE Eastern Cape with closing date 22 February 2019. (“SES” position)
o The SES position was in the Nelson Mandela Bay District.
o The Applicant’s application was successful and he was subsequently appointed to the SES position with effect 1 January 2020.
o The Applicant was appointed on a salary notch of R415 245.
o The Applicant claims that he should have been appointed on a salary notch of R422 340.
4. The Applicant is seeking the following relief:
To be retained on PL4 and on the PL4 salary he was earning as a principal prior to accepting the offer of employment for the SES position, backdated to 1 January 2020.
5. The Respondent handed in a bundle of documents of 13 pages.
o Page 1 of the Bundle: The advertisement for the post of SES. The salary package is indicated as R391 677 per annum.
o Page 2 of the Bundle: An offer of appointment to the SES position addressed to the Applicant dated 1 December 2019. Salary notch R415 245. Date of effect 1 January 2020. Work station Nelson Mandela Bay District.
o Page 3 of the Bundle: A letter of acceptance of the SES appointment signed by the Applicant on 3 December 2019.
ISSUES TO BE DECIDED
6. Whether the DOE EC committed an unfair labour practice against the Applicant by appointing him on the lower salary scale of R415 245.
EVIDENCE
APPLICANT’S EVIDENCE
7. Mr MJ Mboniswa testified as follows:
o He applied for the SES position whilst he was a principal in King Williamstown.
o He said the reason for his application was because he was going through a very difficult divorce and experiencing psychological problems at the time. He said he felt he had to move away from a toxic environment.
o The Applicant said that the salary scale for the SES position was reflected as between R415 295.00 and R935 193.00 on the offer of appointment letter. He said he knew he was in between the minimum and maximum salary scale and that he would be accommodated.
o The Applicant blamed HR for his dilemma. He said he made several attempts to contact HR before and after signing his contract without success and felt aggrieved that he was unable to reach anybody to assist him as he needed guidance in the matter. The Applicant said he signed the acceptance letter because he was concerned that the offer would lapse. The offer was valid for 7 days. He said in his eagerness to leave King Williamstown he signed the contract and decided that he could negotiate when he got to Port Elizabeth.
o During cross-examination Ms Slabbert put it to the Applicant that the advertisement was placed in February 2019 and clearly stated that the salary package was R391 677 per annum. The Applicant therefore had ample time to enquire about the salary package. She put it to the Applicant that he was desperate to leave King Williamstown and that is why he signed the acceptance letter. The Applicant admitted that he was desperate.
RESPONDENT’S EVIDENCE
8. Ms K Bence, the HR Recruitment officer of the Respondent testified as follows:
o She has been employed by the Respondent for 28 years.
o She works in the Department of HR Recruitment and deals with applications from the advert to appointment stage. She has been in that job for 12 years.
o Bence said that the Applicant was in contact with her prior to signing the contract and that she informed him that the position was 4 notches lower than his position as a principal.
o Bence referred to the PAM paragraph B 8.7 which states that when an employee is voluntarily appointed to a lower post the employee’s position will be decreased by 6 notches. As a principal the Applicant was on Post Level 4. The SES position is a Post Level 3 position. Bence said the Applicant’s position was decreased by 4 notches instead of 6 because it was not possible to decrease the notches more than 4 as per the PAM as the entry level for the SES post was 4 notches below that of a principal position. If the Applicant’s position was decreased by 6 notches he would not have qualified for the SES position. He was placed on the minimum notch for Post Level 3.
o During cross-examination the Applicant put it to Bence that she lied when she said she spoke to him prior to him signing the acceptance letter. He was adamant that he never spoke to Bence prior to signing the contract.
o Bence said that she emailed the offer of the SES position to the Applicant and he returned the signed acceptance letter to her. The Applicant confirmed that is what happened.
ANALYSIS OF EVIDENCE AND ARGUMENTS
9. After a consideration of the evidence and arguments presented by both parties I find that the Respondent did not commit an unfair labour practice against the Applicant for the following reasons:
10. The Applicant signed the acceptance letter which clearly indicated that he would be appointed on the salary notch of R415 245 per annum. There was no ambiguity in the offer.
11. The Applicant’s assumption that he would be appointed on a salary scale somewhere between the minimum and maximum salary scale for the SES position (R415 295.00 - R935 193.00) was clearly incorrect. Bence explained how the Applicant’s salary notch was determined in terms of paragraph B 8.7 of the PAM.
12. The advert was placed in February 2019. The Applicant therefore had ample time to enquire about the position.
13. Ms Slabbert pointed out that as a principal the Applicant was expected to be familiar with the PAM.
14. The Applicant could have made any enquiries he had about the SES position to Bence when she sent him the offer which he failed to do. Instead of directing his queries to her the Applicant signed the offer and accepted the position.
15. On his own version the Applicant was desperate to leave King Williamstown and signed the contract with the hope of negotiating a better deal once he arrived in Port Elizabeth.
AWARD
16. The Applicant’s application is dismissed.
17. I make no order as to costs.
SIGNED AND DATED ON 18 JANUARY 2022
ADVOCATE L CHAROUX
COMMISSIONER