ELRC644-20/21 EC
Text
ELRC 647-20/21 GP
Award Date:
10 February 2022
Case Number: ELRC 647-20/21 GP
Commissioner: M.A. HAWYES
Date of Award: 10th February 2022
In the ARBITRATION between
B.E. Mthimunye
(Union/Applicant)
And
Gauteng Department of Higher Education
(First Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration online via Zoom on the 17th November 2021, 2nd December 2021 and finalized on the 28th January 2022.
2. After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 4th February 2022. The closing arguments were timeously received and my award now follows.
3. The Applicant represented himself.
4. Mr. Nkambule, a labour relations official, represented the Respondent.
ISSUE IN DISPUTE
5. Whether the Respondent committed an unfair labour practice dispute by failing to pay the Applicant IQMS (Integrated Quality Management System) performance and development benefits. An earlier jurisdictional ruling ruled that the Council had jurisdiction to arbitrate the matter.
BACKGROUND TO THE ISSUE IN DISPUTE
6. The Respondent employed the Applicant as a PL1 lecturer at the Ellis Park branch of the Johannesburg Central TVET College which now falls under the jurisdiction of the Gauteng Department of Education.
7. The Applicant taught in the Building and Civil department.
8. Both parties made use of bundles of documents which were delivered and referred to electronically.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
9. The Applicant testified under oath and led the evidence of two additional witnesses namely Mr. L. Seloane and Mr Mdansi. The latter two witnesses were PL 1 colleagues of the Applicant.
10. The gist of the testimony of the three witnesses was that the Respondent had not fully complied with the provisions of Collective Agreement no 5 of 2005 in administering the IQMS system in paying employees benefits from 2013-2020.
11. Basically the Applicant contended that because the IQMS procedures had been improperly applied to the other employees he likewise should not be excluded from IQMS payments for 2013-2020 when the process was improperly applied to him.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
12. The Respondent led the evidence of three witnesses namely Ms L. Sikakana (Head of Department for Civil Engineering), Mr R. Spandiel (employed in the Human Resources department) and Mr S. Plaatjie (Human Resources Manager).
13. Sikakana admitted that the process followed to administer IQMS was not perfect but a consistent process was applied to all employees who were paid IQMS benefits.
14. The first requirement was for employees to submit an application with supporting documents.
15. It is common cause that the Applicant did not submit applications for IQMS for 2013-2021. This was confirmed by all three of the Respondent’s witnesses.
16. Both Spandiel and Plaatjie noted that the Applicant had submitted an application for IQMS for 2021.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. The onus rests on the Applicant to prove that the Respondent committed an unfair labour practice on a balance of probabilities, in the way it dealt with him in respect of IQMS.
18. I am not called upon to decide whether the College followed Collective Agreement no 5 of 2005 to the letter of the law.
19. What was required of all the employees that received IQMS payments was to lodge an application with supporting documents with the College for each of the years claimed.
20. As alluded to in paragraph 15 it is common cause that the Applicant did not lodge an application or supporting documents for 2013-2020.
21. The only reason for his non-submission that appears apparent from the Applicant’s testimony is that he was intent on pointing out to the College the error of their ways i.t.o how they handled the IQMS administration.
22. I find that had the Applicant followed the relatively simple processes that were required of all Applicants’’ for IQMS he too would probably have qualified and been paid.
23. The Applicant has failed to prove on a balance of probabilities that the Respondent committed an unfair labour practice against him.
AWARD
24. The Applicant’s dispute referral is dismissed.
25. No order as to costs is made.
Commissioner: M.A. HAWYES
Date of Award: 10th February 2022
In the ARBITRATION between
B.E. Mthimunye
(Union/Applicant)
And
Gauteng Department of Higher Education
(First Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration online via Zoom on the 17th November 2021, 2nd December 2021 and finalized on the 28th January 2022.
2. After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 4th February 2022. The closing arguments were timeously received and my award now follows.
3. The Applicant represented himself.
4. Mr. Nkambule, a labour relations official, represented the Respondent.
ISSUE IN DISPUTE
5. Whether the Respondent committed an unfair labour practice dispute by failing to pay the Applicant IQMS (Integrated Quality Management System) performance and development benefits. An earlier jurisdictional ruling ruled that the Council had jurisdiction to arbitrate the matter.
BACKGROUND TO THE ISSUE IN DISPUTE
6. The Respondent employed the Applicant as a PL1 lecturer at the Ellis Park branch of the Johannesburg Central TVET College which now falls under the jurisdiction of the Gauteng Department of Education.
7. The Applicant taught in the Building and Civil department.
8. Both parties made use of bundles of documents which were delivered and referred to electronically.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
9. The Applicant testified under oath and led the evidence of two additional witnesses namely Mr. L. Seloane and Mr Mdansi. The latter two witnesses were PL 1 colleagues of the Applicant.
10. The gist of the testimony of the three witnesses was that the Respondent had not fully complied with the provisions of Collective Agreement no 5 of 2005 in administering the IQMS system in paying employees benefits from 2013-2020.
11. Basically the Applicant contended that because the IQMS procedures had been improperly applied to the other employees he likewise should not be excluded from IQMS payments for 2013-2020 when the process was improperly applied to him.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
12. The Respondent led the evidence of three witnesses namely Ms L. Sikakana (Head of Department for Civil Engineering), Mr R. Spandiel (employed in the Human Resources department) and Mr S. Plaatjie (Human Resources Manager).
13. Sikakana admitted that the process followed to administer IQMS was not perfect but a consistent process was applied to all employees who were paid IQMS benefits.
14. The first requirement was for employees to submit an application with supporting documents.
15. It is common cause that the Applicant did not submit applications for IQMS for 2013-2021. This was confirmed by all three of the Respondent’s witnesses.
16. Both Spandiel and Plaatjie noted that the Applicant had submitted an application for IQMS for 2021.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. The onus rests on the Applicant to prove that the Respondent committed an unfair labour practice on a balance of probabilities, in the way it dealt with him in respect of IQMS.
18. I am not called upon to decide whether the College followed Collective Agreement no 5 of 2005 to the letter of the law.
19. What was required of all the employees that received IQMS payments was to lodge an application with supporting documents with the College for each of the years claimed.
20. As alluded to in paragraph 15 it is common cause that the Applicant did not lodge an application or supporting documents for 2013-2020.
21. The only reason for his non-submission that appears apparent from the Applicant’s testimony is that he was intent on pointing out to the College the error of their ways i.t.o how they handled the IQMS administration.
22. I find that had the Applicant followed the relatively simple processes that were required of all Applicants’’ for IQMS he too would probably have qualified and been paid.
23. The Applicant has failed to prove on a balance of probabilities that the Respondent committed an unfair labour practice against him.
AWARD
24. The Applicant’s dispute referral is dismissed.
25. No order as to costs is made.