ELRC579-21/22KZN

IN THE ELRC ARBITRATION
BETWEEN:

MAZWAKHE MKHULISI “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”

ARBITRATION AWARD

Case Number: ELRC579-21/22KZN

Date of award: 10 February 2023

NOZIPHO B KHUMALO
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set-down for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act (LRA) virtually via Zoom, on 7 September 2022 and 5 October 2022. The matter was then set down on 24 and 25 November 2022 at the premises of the Respondent, Department of Education: KZN in Pietermaritzburg. Mr Yunus Ramcheron appeared for the Respondent whilst Mr Saxon Pillay, an attorney represented the Applicant, Mazwakhe Mkhulisi.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

2. The Applicant was employed by the Respondent on 17 January 1989. On 1 August 2018 he was seconded from Umgungundlovu District to the head office and appointed to act in the position of chief education specialist: rural and academic support until 31 July 2019. The Applicant was not paid any acting allowance for his secondment in this role.

3. The Applicant seeks to be paid an acting allowance from 1 August 2018 to 31 July 2019 and compensation for the unfair labour practise committed by the Respondent.

4. The Applicant handed in Annexure “A”.

5. I have to decide whether the Applicant was entitled to an acting allowance for the period 1 August 2018 to 31 July 2019.

PRELIMINARY ISSUES

6. On 5 October 2022, the Respondent requested an adjournment in order to seek a mandate to settle the dispute. the adjournment was granted.

7. On 24 November 2022 the parties agreed that the matter be settled and that the Applicant will be paid his acting allowance for the period 1 July 2018 to 31 August 2019. The parties however did not sign the settlement agreement as they needed to confirm the exact amount that is owed to the Applicant.

8. The parties further agreed that the only issue to be determined is whether the Applicant is entitled to any compensation or not. The parties agreed to submit written arguments on 5 December 2022.

9. The settlement agreement however was not signed by the parties and the Respondent party failed to submit written arguments.

SUMMARY OF EVIDENCE AND ARGUMENTS

Applicant’s case

10. The Applicant testified and his evidence is summarised as follows. He was employed by the Respondent on 17 January 1989 as a post level 1 educator at Dumehlezi secondary School in Durban. In 2018 he was seconded to act in the post of chief education specialist: rural and academic support. At the time, he occupied the position of deputy chief education specialist at Mgungundlovu district as a circuit manager at Howick permanently since October 2003. He was on salary level 11. The post of chief education specialist was salary level 12.

11. The position of chief education specialist was previously occupied by Madela who is currently the director rural academic support (RAS). A submission, as recorded in “A”1-2, was made on 17 May 2018 for the approval of the Applicant’s secondment and acting appointment of the Applicant for the period 1 August 2018 to 31 July 2019. The submission was signed and supported by Mrs TJP Khoza, Mr S Mabinza, Mrs TA Gumede, Ms Nv Hlongwane, Mr MRC Msweli, Mr GN Ngcobo, Ms NJ Dlamini, Mr VL Mtshali and Dr EV Nzama, “A”3-5. The submission was approved by the HOD, “A”28, from 1 August 2018 to 31 July 2019. On “A”29 is the assumption of duty which was signed on 16 August 2018.

12. After the 31 July 2019, although no further submissions were made to the Respondent, the Applicant continued to act in the position because he did not receive a letter sending him back to his previous position. He acted until 31 January 2022 when he resigned. He was not paid the acting allowance throughout the whole acting period. The submission in “A”2 clearly states that the policy of the department on secondment and acting will apply until posts are advertised, “A’8-13. Clause 5.6.3 of the policy states that, “An acting allowance will be paid only to an educator who acts if a period of appointment is longer than twelve (12) consecutive weeks but limited to a maximum of twelve (12) months in the case of a permanent incumbent who is absent (due to maternity leave, sick leave, study leave, displacement, suspension or secondment. In the case of the Applicant, the secondment was as a result of Madela being seconded to a higher post.

13. The Applicant was earning R896 451-00 per annum. The entry notch for the position of Chief Education Specialist was R700 782-00. In terms of the policy, the Applicant should have been paid according to the entry notch of salary level 13.


14. On 30 August 2021 the Applicant submitted a letter to the Respondent regarding the non-payment of his acting allowance, “A”82-83. On 9 November 2021 the Applicant received a response that the reason why his acting allowance was not paid is because the post that he acted in was not funded and approved for filing by the premier.

15. Previously the post was permanently occupied by Madela and therefore is funded. Madela only vacated the post in September 2021 when he was appointed to a higher post.


The Respondent’s case

16. No evidence was lead on behalf of the Respondent.

SUMMARY OF ARGUMENTS

17. The Applicant argued that he was seconded and acted in the position of Chief Education Specialist which is a level 12 position. At the time he occupied the position of Deputy Chief Specialist and was on salary level 11. In terms of the policy on the payment of acting allowance for educators appointed to act in a higher position, clause 5.8, provides that he is entitled to an acting allowance equivalent to the starting notch of salary level 13 At the time of his secondment, the Applicant's existing salary exceeded the commencement value of the next salary level, i.e. salary level 12 which is applicable to the Chief Education Specialist. The Applicant ought to be paid the difference between his existing salary and the commencing salary on salary level 13.

18. The Applicant’s existing salary pm (excluding benefits) is R56 775-23. The last notch of salary level12 (excluding benefits) is R83 226-25. The difference due to the Applicant per month is therefore R26 451-02. The total allowance due to the Applicant over twelve months is R317 412-24.


19. Failure to pay an incumbent an acting allowance when such an allowance is due, automatically results in an unfair labour practice. The Applicant in this case acted for a period in excess of 12 months, however, he has limited his claim to 12 months in accordance with his acting appointment. The Respondent has also failed to make good on the letter of demand delivered by Applicant's attorneys demanding payment of such compensation. To such an extent, that Applicant was forced to refer a dispute and incur significant legal costs in order to claim a benefit which he ought to have received without any hassle. In the premises, Applicant requests for maximum compensation for the unfair labour practice committed by Respondent, in accordance with the provisions laid down in the Labour Relations Act.


ANALYSIS OF EVIDENCE AND ARGUMENT

20. In this case it is common cause that the Applicant acted for a period exceeding twelve (12) months. However, his claim is only limited to the first twelve (12) months being 1August 2018 to 31 July 2019.

21. The Applicant’s averment is that the post of Chief Education Specialist in the rural academic directorate was funded because it was permanently occupied by Dr Madela. The post falls under the Rural Academic Support Directorate, in terms of the organogram, and is therefore funded, “B”2. The Applicant’s letter of appointment does not state whether acting allowance is applicable or not.
22. Resolution 8 of 2001, Clause 5 state that 5.1 an acting allowance will be paid only to an educator who acts in a higher vacant and funded post and… 5.2. if the period of appointment is longer than six weeks but limited to a maximum of twelve months. In terms of this provision and the absence of any contradictory evidence in this regard, I therefore accept that the acting allowance was applicable in the Applicant’s case.
23. Clause 7 of Resolution 8 of 2001 states that the acting allowance that will apply is the difference between the acting person’s current salary (without benefits) and the commencing notch of the higher post (without benefits) that applies to the position in which the person is acting. Where the acting person’s current salary (without benefits) equals or exceeds the commencing notch of the higher post (without benefits) that applies to the position in which the person is acting, the acting allowance that will apply is a notch increase.

24. The Applicant in this case was earning R56 775-23 per annum which exceeds the entry notch of salary level 12. Therefore, the notch applicable to the Applicant is the last notch of salary level twelve (12) being R83 226-
FINDING

25. I therefore find that the conduct of the Respondent constituted an unfair labour practice.

AWARD

26. The Respondent is ordered to by no later than 28 February 2023 to pay the Applicant as follows:
a. R83 226-25 (being the last notch of salary level 12 per month) - R56 775-23 (being the Applicant’s salary per month without benefits) = R26 451-02 (difference)
b. R26 451-02 (difference) x 12 months = R317 412-24

Commissioner: Nozipho B Khumalo