ELRC919-21/22FS
Text
ELRC919-21/22FS
Award Date:
06 June 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD VIRTUALLY ON 20 MAY 2022
Case Number: ELRC919-21/22FS
Arbitrator: Moraka Abel Makgaa
Date: 06 June 2022
In the matter between: -
SAOU obo S Van Biljon Applicant
And
Motheo TVET College Respondent
ARBITRATION AWARD
DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The arbitration hearing was scheduled for 20 May 2022. The employee was not present, but she was represented by Ms Ankia Bester, a professional Advisor: Legal Department from Suid-Afrikaanse Onderwysersunie (“SAOU”). Mr Mamosiwa David Mokhobo, Deputy Principal at Motheo TVET College, represented both the TVET College and the Department of Higher Education and Training.
2 The applicant submitted the following documents: SAOU letter dated 10 May 2021, the applicant’s grievance for non-implementation of salary adjustments signed on 11 May 2021, applicant’s service record dated 2021.12.06,memo from the acting DDG: Teacher and Professional Development concerning Implementation of the new salary scale resulting from the provisions of the PSCBC Resolution 1 of 2018 on the equalization of pay progression for educators, Business Rules for the implementation of the equalization of pay progression for educators, and ELRC Resolution 6 of 1996 (“the Resolution”).
3 The respondent submitted the following bundles of documents: memo generated by the Directorate: Human Resource and Administration signed during December 2021 and January 2022, the applicant’s service record printed on 2021.12.06, an extract of the Personal Administrative Measures, 12 February 2016 (“PAM”), Persal Notice Number 355:Education Pay Progression Equalization 1 July 2019, from the National Treasury, OSD Educator salary notches with effect from 1 July 2021 for full-time employees. Annexure A: OSD Educator salary /levels notches with effect from 1 July 2019 for full-time employees, Inclusive packages, Annexure B, Table: Educators Minimum and Maximum Notches-with effect from 1 July 2019, Annexure C, Table: Notch Translation Table 1/7/2019, Annexure D: new notch codes and values of the new notch codes.
4 The proceedings were digitally recorded. Both parties submitted written closing arguments, which have been taken into consideration in arriving at the conclusions herein.
ISSUES TO BE DECIDED
5 I was called upon to determine whether the applicant has been granted the correct salary notches in accordance with the provisions of the ELRC Resolution 6 of 1996 read with the relevant provisions of the Personal Administrative Measures, 12 February 2016 (“PAM”).
INTRODUCTION AND BACKGROUND
6 On 10 May 2021 the SAOU wrote a letter to Mrs M Suping of Motheo TVET College concerning the respondent’s failure to increase the applicant’s salary by 6% as a result of her promotion to the post of Departmental Head ( post level 3) with effect from 01 October 2019. On 11 May 2021 the applicant lodged a formal grievance by completing the standard grievance form ( Annexure G.1). The letter from SAOU was apparently attached to the applicant’s grievance form. The grievance could not be resolved and a dispute relating to interpretation and/or application of a collective agreement was ultimately referred a dispute ELRC. The dispute could not be resolved at conciliation stage and was set down for arbitration on 20 May 2022.
7 At the beginning of the proceedings the applicant’s representative indicated that the applicant could not join the meeting as she was in the USA. I was further informed that the parties had already had discussions about the applicant’s intention to make an application for postponement, and that the respondent was not opposed to the postponement. In the light of the fact that the matter is about interpretation and/or application of a collective agreement, I requested that we revert to a pre-arbitration meeting in order to be able determine whether it was necessary for me to grant a postponement. It was clear that there were no factual disputes between the parties as to whether the applicant was entitled to be awarded six salary notches. The only issue to be determined related to interpretation and/or application of specific provisions of the collective agreement and PAM.
8 I was also informed that the parties are in constant discussions on this matter, and that they were positive about the possibility of reaching a settlement agreement. I refused to grant a postponement, and indicated that the matter was capable of being decided on the basis of written submissions and the documentary evidence to be submitted by the parties. The parties were given until 31 May 2022 to either submit a signed settlement agreement or their written arguments.
9 The applicant’s written arguments together with supporting documents were submitted on 31 May 2022. On 31 May 2022 the respondent’s representative submitted a request for extension of the submission date by at least two (2) days on the basis that Ms Mailula, who is the respondent’s HR specialist on issues related to the granting or adjustment of salary notches, had been out of her office, visiting various colleges due to work-related commitments. I granted the extension. The respondent submitted their written arguments together with supporting documents on 02 June 2022.
SUMMARY OF THE APPLICANT’S SUBMISSIONS AND ARGUMENTS
10 The applicant made reference to clause 4 of Resolution 6 of 1996, as well as to sub-paragraphs B.8.6 and 8.6.1 of PAM which read as follows:
“ 4 An educator is always appointed to the first salary position of the range applicable to the post to which he or she is appointed, provided that an educator who is promoted to a higher post level, shall advance to at least one salary position. An appointment may only be made to salary position in the salary band which is applicable to particular post and REQV concerned.
B.8.6 Salary applicable to a serving educator who is promoted or appointed to a graded principal post, which is on a higher grade than the post he or she occupied.
B.8.6.1 The salary of an educator who is promoted must be adjusted to the minimum notch of the salary range applicable to the higher post level, provided that the educator’s salary is increased at all times by at least 6% irrespective of whether the current notch code falls below or within the higher salary range”.
11 The following are said to be common cause issues: (i) the applicant has been promoted to the post of a Departmental Head with effect from 10 October 2019, (ii) the applicant’s annual salary notch was adjusted from R514 281.00 per annum to R522 036.00 per annum as a result of her promotion, (iii) the minimum notch of the salary range applicable to the post of Departmental Head was, at the time of promotion, R415 245.00 per annum, (iv) the applicant is entitled to additional 6 notches in terms of sub-paragraph 8.6.1 of PAM.
12 The applicant has also relied on the principles outlined in the Business Rules for the implementation of the equalisation of pay progression for educators (“ the Business Rules”), especially with regard to the manner in which the additional salary notches must calculated and awarded to the deserving educator.
13 According to the service records submitted by both parties, the applicant was granted pay progression of three (3) notches on 01 July 2021 which resulted with her salary being adjusted from R522 036.00 per annum to R529 866.00 per annum. In conclusion, it is submitted that had the respondent interpreted and applied the provisions of the Resolution, the PAM read together with the Business Rules, the applicant’s salary notch would have been adjusted to R545 916. 00 per annum as from 01 October 2019.
SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND ARGUMENTS
14 The understanding of the respondent is captured in a memo generated by the Directorate: Human Resources and Administration concerning amendment of the applicant’s salary notch, which was signed by the relevant HRM officials during December 2021 and January 2022. The memo is specifically addressed to the ELRC commissioner, which means that the memo was meant to clarify the respondent’s position in the arbitration proceedings. The memo confirms both the common cause issues and issues in dispute raised in the applicant’s submissions.
15 According to this memo, when a person is appointed, he or she is placed on the first notch of the post level they have applied for. In the instant case, the salary notches which were awarded to the applicant with effect from 01 October 2019 were calculated from the minimum notch of the higher post, which was R415 245.00 at that time, resulting with a salary adjustment of the applicant from R514 281.00 to R522 036.00.
16 The respondent’s written submissions can be summarised as follows. It is a common cause that Ms Van Biljon deserved 6 notches, but the disagreement between the parties is with regard to where the counting of the first notch should have started. The applicant’s understanding is that counting of the 6 notches should have started from the annual salary notch of R514 281.00, which was the annual salary notch that was applicable to Ms van Biljon before her promotion to the post of Departmental Head. The respondent on the other hand, contends that counting of the six notches had to start from the minimum notch of the higher post.
ANALYSIS AND ARGUMENTS
17 This matter, as correctly contended by both the applicant and the respondent, does not raise any factual disputes. The only dispute between the parties is the interpretation and/or application of sub-paragraphs B.8.6 and 8.6.1 of PAM. In order for one to have a better understanding of the manner in which the 6 notches must be granted to an educator in the position of the applicant, it is advisable to do a comparative analysis of sub-paragraph 8.6.1 and the other provisions dealing with the awarding of 6% salary notches, particularly the awarding of additional 6 notches applicable in the case of educators who are reappointed after a break in service. Sub-paragraph B.5.2 of PAM provides as follows:
“ B.8.5.2 Educators who are reappointed after a break in service
B.8.5.2.1 An educator who is appointed after a break in service shall always be appointed to the entry level salary notch code of the salary band of the post to which he/she has been appointed under the following conditions:
(a) Should an educator resign or retire and comes back in service on the same level and has more than 6 years of uninterrupted service on that particular post level, such an educator shall be awarded additional 6 notches to the minimum (entry) notch of the post which he/she is appointed.
(b) Should an educator resign or retire and comes back in service on the lower post level and has more than 6 years of uninterrupted service on any post level, such an educator shall be awarded additional 6 notches to the minimum (entry) notch of the post which he/she is appointed.
B.8.5.3 Re-appointment to a higher post level after a break in service
B.8.5.3.1 An educator who is re-appointed to a higher post level than the one he/she occupied before the break in service, is appointed to the lowest salary notch of the applicable salary range which is higher than the salary position (or equivalent salary position) occupied by the educator before the break in service, provided that he/she at all times gains at least 6 notches (6%), irrespective of whether the previous notch code falls below or within the higher salary range”.
B.8.5.3.2 An educator, who is re-appointed to a graded post (principal post) with a higher grade than the post he/she occupied before the break in service, is appointed to the lowest applicable salary notch which is higher than the salary position (or equivalent salary position) occupied by the educator before the break in service, provided that he/she at all times gains at least 6 notches (6%), irrespective of whether the previous notch code falls below or within the higher salary range”.
18 The essence of the above provisions is that an educator who is reappointed after a break in service may only be awarded additional 6 notches to the minimum (entry) notch of the post which he/she is appointed if he or she has more than 6 years of uninterrupted service on that particular post level or on any post level.
19 On a proper interpretation, the first part of sub-paragraph B.8.6.1, just like the first parts of sub-paragraphs B.8.5.2.1, B.8.5.2.2 and B.8.5.2.3, deals with what can be referred to as the general rule, in terms of which the salary notch of the concerned educator must be adjusted to the minimum notch of the salary range applicable to the post to which he or she is promoted or appointed. The second part of all the provisions concerns an exception to the general rule in terms of which a salary notch of an educators who is promoted to a higher post level or appointed to the relevant post must always be increased by at least 6 notches. There are clearly no fundamental differences as regards the awarding of the six notches except that in the case of sub-paragraph B.8.6.1 the educator’s salary is increased by at least 6 notches whereas in the case of a reappointed educator the additional 6 notches are awarded to the minimum (entry) notch of the post to which the concerned educator is reappointed.
20 Sub-paragraphs 4.1.1 and 4.1.2 of Business Rules have not only reiterated the awarding of additional six notches, but they have also provided clarity as to how and where to start counting the 6% salary notches. Sub-paragraphs 4.1.1 and 4.1.2 provide as follows:
“ 12.1 The principle in this regard is to ensure that for any movement up ( appointments, promotions) or down ( demotion) the salary scale must be at least 6%.
12.2 Always count from the notch that the educator occupies or the applicable reference notch”.
21 The understanding of the respondent is clearly relevant to the situation involving the reappointment of educators who had once resigned or retired but it is completely irrelevant to salary adjustments for educators contemplated in sub-paragraph B.8.6.1.The correct legal position, as I understand it, is to the effect that the applicant and those similarly situated must be awarded additional six notches, calculated from their previous salary notches as opposed to calculating such notches from the minimum (entry) notch of the post to which they have been promoted or appointed.
QUANTIFICATION
22 The applicant’s salary should have been increased or adjusted from R514 281.00 per annum to R529 866.00 per annum with effect from 01 October 2019, and thereafter adjusted to R537 813.00 per annum as from 01 July 2021.
AWARD
23 The respondent is ordered to adjust the annual salary notch of the applicant to R529 866.00 with effect from 01 October 2019, and to make any subsequent salary adjustments and payment of any outstanding monies and benefits due and payable to the applicant.
24 The retrospective salary adjustments and payment of all the outstanding monies and benefits must be made by not later than 30 June 2022.The outstanding amounts shall attract interest at the prescribed rate as from 01 July 2022.
MORAKA ABEL MAKGAA
ELRC PANELIST
Case Number: ELRC919-21/22FS
Arbitrator: Moraka Abel Makgaa
Date: 06 June 2022
In the matter between: -
SAOU obo S Van Biljon Applicant
And
Motheo TVET College Respondent
ARBITRATION AWARD
DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The arbitration hearing was scheduled for 20 May 2022. The employee was not present, but she was represented by Ms Ankia Bester, a professional Advisor: Legal Department from Suid-Afrikaanse Onderwysersunie (“SAOU”). Mr Mamosiwa David Mokhobo, Deputy Principal at Motheo TVET College, represented both the TVET College and the Department of Higher Education and Training.
2 The applicant submitted the following documents: SAOU letter dated 10 May 2021, the applicant’s grievance for non-implementation of salary adjustments signed on 11 May 2021, applicant’s service record dated 2021.12.06,memo from the acting DDG: Teacher and Professional Development concerning Implementation of the new salary scale resulting from the provisions of the PSCBC Resolution 1 of 2018 on the equalization of pay progression for educators, Business Rules for the implementation of the equalization of pay progression for educators, and ELRC Resolution 6 of 1996 (“the Resolution”).
3 The respondent submitted the following bundles of documents: memo generated by the Directorate: Human Resource and Administration signed during December 2021 and January 2022, the applicant’s service record printed on 2021.12.06, an extract of the Personal Administrative Measures, 12 February 2016 (“PAM”), Persal Notice Number 355:Education Pay Progression Equalization 1 July 2019, from the National Treasury, OSD Educator salary notches with effect from 1 July 2021 for full-time employees. Annexure A: OSD Educator salary /levels notches with effect from 1 July 2019 for full-time employees, Inclusive packages, Annexure B, Table: Educators Minimum and Maximum Notches-with effect from 1 July 2019, Annexure C, Table: Notch Translation Table 1/7/2019, Annexure D: new notch codes and values of the new notch codes.
4 The proceedings were digitally recorded. Both parties submitted written closing arguments, which have been taken into consideration in arriving at the conclusions herein.
ISSUES TO BE DECIDED
5 I was called upon to determine whether the applicant has been granted the correct salary notches in accordance with the provisions of the ELRC Resolution 6 of 1996 read with the relevant provisions of the Personal Administrative Measures, 12 February 2016 (“PAM”).
INTRODUCTION AND BACKGROUND
6 On 10 May 2021 the SAOU wrote a letter to Mrs M Suping of Motheo TVET College concerning the respondent’s failure to increase the applicant’s salary by 6% as a result of her promotion to the post of Departmental Head ( post level 3) with effect from 01 October 2019. On 11 May 2021 the applicant lodged a formal grievance by completing the standard grievance form ( Annexure G.1). The letter from SAOU was apparently attached to the applicant’s grievance form. The grievance could not be resolved and a dispute relating to interpretation and/or application of a collective agreement was ultimately referred a dispute ELRC. The dispute could not be resolved at conciliation stage and was set down for arbitration on 20 May 2022.
7 At the beginning of the proceedings the applicant’s representative indicated that the applicant could not join the meeting as she was in the USA. I was further informed that the parties had already had discussions about the applicant’s intention to make an application for postponement, and that the respondent was not opposed to the postponement. In the light of the fact that the matter is about interpretation and/or application of a collective agreement, I requested that we revert to a pre-arbitration meeting in order to be able determine whether it was necessary for me to grant a postponement. It was clear that there were no factual disputes between the parties as to whether the applicant was entitled to be awarded six salary notches. The only issue to be determined related to interpretation and/or application of specific provisions of the collective agreement and PAM.
8 I was also informed that the parties are in constant discussions on this matter, and that they were positive about the possibility of reaching a settlement agreement. I refused to grant a postponement, and indicated that the matter was capable of being decided on the basis of written submissions and the documentary evidence to be submitted by the parties. The parties were given until 31 May 2022 to either submit a signed settlement agreement or their written arguments.
9 The applicant’s written arguments together with supporting documents were submitted on 31 May 2022. On 31 May 2022 the respondent’s representative submitted a request for extension of the submission date by at least two (2) days on the basis that Ms Mailula, who is the respondent’s HR specialist on issues related to the granting or adjustment of salary notches, had been out of her office, visiting various colleges due to work-related commitments. I granted the extension. The respondent submitted their written arguments together with supporting documents on 02 June 2022.
SUMMARY OF THE APPLICANT’S SUBMISSIONS AND ARGUMENTS
10 The applicant made reference to clause 4 of Resolution 6 of 1996, as well as to sub-paragraphs B.8.6 and 8.6.1 of PAM which read as follows:
“ 4 An educator is always appointed to the first salary position of the range applicable to the post to which he or she is appointed, provided that an educator who is promoted to a higher post level, shall advance to at least one salary position. An appointment may only be made to salary position in the salary band which is applicable to particular post and REQV concerned.
B.8.6 Salary applicable to a serving educator who is promoted or appointed to a graded principal post, which is on a higher grade than the post he or she occupied.
B.8.6.1 The salary of an educator who is promoted must be adjusted to the minimum notch of the salary range applicable to the higher post level, provided that the educator’s salary is increased at all times by at least 6% irrespective of whether the current notch code falls below or within the higher salary range”.
11 The following are said to be common cause issues: (i) the applicant has been promoted to the post of a Departmental Head with effect from 10 October 2019, (ii) the applicant’s annual salary notch was adjusted from R514 281.00 per annum to R522 036.00 per annum as a result of her promotion, (iii) the minimum notch of the salary range applicable to the post of Departmental Head was, at the time of promotion, R415 245.00 per annum, (iv) the applicant is entitled to additional 6 notches in terms of sub-paragraph 8.6.1 of PAM.
12 The applicant has also relied on the principles outlined in the Business Rules for the implementation of the equalisation of pay progression for educators (“ the Business Rules”), especially with regard to the manner in which the additional salary notches must calculated and awarded to the deserving educator.
13 According to the service records submitted by both parties, the applicant was granted pay progression of three (3) notches on 01 July 2021 which resulted with her salary being adjusted from R522 036.00 per annum to R529 866.00 per annum. In conclusion, it is submitted that had the respondent interpreted and applied the provisions of the Resolution, the PAM read together with the Business Rules, the applicant’s salary notch would have been adjusted to R545 916. 00 per annum as from 01 October 2019.
SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND ARGUMENTS
14 The understanding of the respondent is captured in a memo generated by the Directorate: Human Resources and Administration concerning amendment of the applicant’s salary notch, which was signed by the relevant HRM officials during December 2021 and January 2022. The memo is specifically addressed to the ELRC commissioner, which means that the memo was meant to clarify the respondent’s position in the arbitration proceedings. The memo confirms both the common cause issues and issues in dispute raised in the applicant’s submissions.
15 According to this memo, when a person is appointed, he or she is placed on the first notch of the post level they have applied for. In the instant case, the salary notches which were awarded to the applicant with effect from 01 October 2019 were calculated from the minimum notch of the higher post, which was R415 245.00 at that time, resulting with a salary adjustment of the applicant from R514 281.00 to R522 036.00.
16 The respondent’s written submissions can be summarised as follows. It is a common cause that Ms Van Biljon deserved 6 notches, but the disagreement between the parties is with regard to where the counting of the first notch should have started. The applicant’s understanding is that counting of the 6 notches should have started from the annual salary notch of R514 281.00, which was the annual salary notch that was applicable to Ms van Biljon before her promotion to the post of Departmental Head. The respondent on the other hand, contends that counting of the six notches had to start from the minimum notch of the higher post.
ANALYSIS AND ARGUMENTS
17 This matter, as correctly contended by both the applicant and the respondent, does not raise any factual disputes. The only dispute between the parties is the interpretation and/or application of sub-paragraphs B.8.6 and 8.6.1 of PAM. In order for one to have a better understanding of the manner in which the 6 notches must be granted to an educator in the position of the applicant, it is advisable to do a comparative analysis of sub-paragraph 8.6.1 and the other provisions dealing with the awarding of 6% salary notches, particularly the awarding of additional 6 notches applicable in the case of educators who are reappointed after a break in service. Sub-paragraph B.5.2 of PAM provides as follows:
“ B.8.5.2 Educators who are reappointed after a break in service
B.8.5.2.1 An educator who is appointed after a break in service shall always be appointed to the entry level salary notch code of the salary band of the post to which he/she has been appointed under the following conditions:
(a) Should an educator resign or retire and comes back in service on the same level and has more than 6 years of uninterrupted service on that particular post level, such an educator shall be awarded additional 6 notches to the minimum (entry) notch of the post which he/she is appointed.
(b) Should an educator resign or retire and comes back in service on the lower post level and has more than 6 years of uninterrupted service on any post level, such an educator shall be awarded additional 6 notches to the minimum (entry) notch of the post which he/she is appointed.
B.8.5.3 Re-appointment to a higher post level after a break in service
B.8.5.3.1 An educator who is re-appointed to a higher post level than the one he/she occupied before the break in service, is appointed to the lowest salary notch of the applicable salary range which is higher than the salary position (or equivalent salary position) occupied by the educator before the break in service, provided that he/she at all times gains at least 6 notches (6%), irrespective of whether the previous notch code falls below or within the higher salary range”.
B.8.5.3.2 An educator, who is re-appointed to a graded post (principal post) with a higher grade than the post he/she occupied before the break in service, is appointed to the lowest applicable salary notch which is higher than the salary position (or equivalent salary position) occupied by the educator before the break in service, provided that he/she at all times gains at least 6 notches (6%), irrespective of whether the previous notch code falls below or within the higher salary range”.
18 The essence of the above provisions is that an educator who is reappointed after a break in service may only be awarded additional 6 notches to the minimum (entry) notch of the post which he/she is appointed if he or she has more than 6 years of uninterrupted service on that particular post level or on any post level.
19 On a proper interpretation, the first part of sub-paragraph B.8.6.1, just like the first parts of sub-paragraphs B.8.5.2.1, B.8.5.2.2 and B.8.5.2.3, deals with what can be referred to as the general rule, in terms of which the salary notch of the concerned educator must be adjusted to the minimum notch of the salary range applicable to the post to which he or she is promoted or appointed. The second part of all the provisions concerns an exception to the general rule in terms of which a salary notch of an educators who is promoted to a higher post level or appointed to the relevant post must always be increased by at least 6 notches. There are clearly no fundamental differences as regards the awarding of the six notches except that in the case of sub-paragraph B.8.6.1 the educator’s salary is increased by at least 6 notches whereas in the case of a reappointed educator the additional 6 notches are awarded to the minimum (entry) notch of the post to which the concerned educator is reappointed.
20 Sub-paragraphs 4.1.1 and 4.1.2 of Business Rules have not only reiterated the awarding of additional six notches, but they have also provided clarity as to how and where to start counting the 6% salary notches. Sub-paragraphs 4.1.1 and 4.1.2 provide as follows:
“ 12.1 The principle in this regard is to ensure that for any movement up ( appointments, promotions) or down ( demotion) the salary scale must be at least 6%.
12.2 Always count from the notch that the educator occupies or the applicable reference notch”.
21 The understanding of the respondent is clearly relevant to the situation involving the reappointment of educators who had once resigned or retired but it is completely irrelevant to salary adjustments for educators contemplated in sub-paragraph B.8.6.1.The correct legal position, as I understand it, is to the effect that the applicant and those similarly situated must be awarded additional six notches, calculated from their previous salary notches as opposed to calculating such notches from the minimum (entry) notch of the post to which they have been promoted or appointed.
QUANTIFICATION
22 The applicant’s salary should have been increased or adjusted from R514 281.00 per annum to R529 866.00 per annum with effect from 01 October 2019, and thereafter adjusted to R537 813.00 per annum as from 01 July 2021.
AWARD
23 The respondent is ordered to adjust the annual salary notch of the applicant to R529 866.00 with effect from 01 October 2019, and to make any subsequent salary adjustments and payment of any outstanding monies and benefits due and payable to the applicant.
24 The retrospective salary adjustments and payment of all the outstanding monies and benefits must be made by not later than 30 June 2022.The outstanding amounts shall attract interest at the prescribed rate as from 01 July 2022.
MORAKA ABEL MAKGAA
ELRC PANELIST