ELRC735-22/23EC

Panelist: Clint Enslin
Case No.: ELRC735-22/23EC
Date of Award: 10 April 2023

In the ARBITRATION between:

SAOU obo H Vogel
(Union / Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Ms Debbie Harvey
Applicant’s address:

Telephone: 063 6865 486
Telefax:
Email debbieh@saou.co.za

Respondent’s representative: Mr Euan Hector
Respondent’s address:


Telephone: 072 5902 685
Telefax:
Email Euan.Hector@ecdeo.gov.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 7 and 20 March 2023 and the proceedings were electronically recorded.

2. The Applicant, Mr Herman Vogel, was represented by Ms Debbie Harvey, the Provincial Secretary of SAOU – Eastern Cape, a registered trade union. The Respondent, Department of Education – Eastern Cape was represented by M Euan Hector, a Labour Relations Officer of the Respondent.

ISSUE TO BE DECIDED
3. Whether or not the non-payment of the Applicant’s resettlement claim, as submitted by him, amounts to an Unfair Labour Practice as per Section 186(2)(a) of the LRA.
4. Whether or not the appointment of the Applicant on a level P3 school grading as compared to the anticipated P4 school grading, as per the advertisement in Principal Bulletin Volume 5 of 2022, amounts to an Unfair Labour Practice as per Section 186(2)(a) of the LRA.
5. If so, determine appropriate relief.

BACKGROUND TO THE ISSUES

6. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

6.1 The Applicant worked for the Free State Department of Education as a Deputy Principal as from 3 February 2014 until 8 June 2022 at Sarel Cilliers Combined School, a P3 graded school.

6.2 The Applicant applied for the for the Principal’s post at Jeffrey’s Bay Primary School as advertised in Eastern Cape Department of Education Principal Bulletin Volume 5 of 2021/22 (post number 133 with school grading P4).

6.3 On 28 January 2022 the Eastern Cape Department of Education amended the closing date, in erratum Principal Bulletin Volume 5 of 2022, from 31 January 2022 to 11 February 2022 (Principal post grading for the post unchanged).

6.4 The Applicant applied for the post as advertised and he was shortlisted, interviewed and later recommended by the SGB of Jeffrey’s Bay Primary School as the successful candidate.

6.5 The Applicant assumed duties as the Principal of Jeffrey’s Bay Primary School on 9 June 2022.

6.6 He was appointed on entry level P3 grading salary scale which is R504 147 per annum.

6.7 The entry level P4 grading salary scale at his appointment was R 541 470 per annum.

6.8 The Applicant submitted a claim for resettlement monies/payment, on 21 October 2022, as a result of his move from Parys (Free State) to Jeffrey’s Bay (Eastern Cape).

6.9 The amount of the resettlement claim is due to the Applicant and amounts to a benefit as per the Eastern Cape Resettlement Policy, dated 1 September 2021.

6.10 The amount claimed and due in terms of the resettlement is R115 303.64, which is made up as follows:

6.10.1 R82 593.00 for furniture removal;
6.10.2 R24 150.00 for accommodation; and
6.10.3 R8560.64 for travel reimbursement.

6.11 The resettlement claim has not been paid by the Respondent.

7. The Applicant submitted a bundle of documents, which was divided into 3 parts and which were marked “A1”, “A2” and “A3” respectively. The Applicant also handed in 2 further bundles of documents marked “A4” and “A5” respectively. Parties agreed that the documents were what they purported to be.

8. Both parties submitted written closing arguments.

9. The matter was digitally recorded.

SURVEY OF EVIDENCE AND ARGUMENT

10. This award constitutes a brief summary of evidence, argument and my reasons for the award issued 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.

Applicant’s case

Applicant’s evidence

11. The Applicant, Mr Herman Vogel, testified that he applied for the post at Jeffrey’s Bay Primary that was advertised as a P4 school grading. He was interviewed and recommended by the SGB. This lead to him moving to Jeffrey’s Bay. The offer came on the Thursday, on the Friday he met everyone and he commenced his first day of work on the Monday. The offer letter did not state the salary, but did state P3 school grading. He queried that the post was advertised as P4 grading and was told to sign and that it would be rectified later and that the salary would be confirmed. He later told that it was a P3 post and that it was advertised incorrectly. The post in question was not part of the list of incorrect advertisements in the gazette. When he received his first salary, it was at entry level P3. The level and salary notch were an issue for him. The school had spoken with the EDO and HR about the issue and there had been numerous follow ups.

12. He had received a written offer letter, which he had read before signing, but he had queried the P3 and salary to be confirmed part. He was told to sign so that he could get into the system and that it would be corrected. Bundle A1 pages 10 to 14 confirmed that from 2018 until 2022 the school qualified for 21 educator posts, which was also the case in 2023. Bundle A4 - PAM A.3.1 read as follows: “The salary level of a principal of a school is determined by the grading of the school, which is done in accordance with the number of educator posts allocated to a school in terms of national norms…….” The next page of A4 (PAM document) confirmed that for a P3 grading, a school needed to have 13 to 24 educator posts. He therefore agreed that on the above, the school did not qualify for a P4 grading. The minimum number of educator posts required for an upgrade was 26.

13. Pages 10 to 14 of A1 was the post establishment per year and they indicated that in 2018, the school had 21 educators and was graded as a P4 school. From 2019 to 2022 it still had 21 educators, but there was no grading indicated. A5 was the PPN 2023 document which indicated that the post establishment was still 21, but that the grading was now P3. He was told that due to the error, the possible outcome would be that they may start him on a higher P3 notch, however, he did not get this in writing. Mr Garth Jacobs, his school’s EDO, said that he look into the salary notch and see how they could rectify it.

Respondent’s evidence

Mr Derek Helm

14. Mr Derek Helm testified that he was the Deputy Director for the Sarah Baartman District. He testified further that the school had 21 educators and 754 learners and was accordingly a P3 grading. It was mistakenly advertised as P4 grading. According to the grading norms, 1000 to 1200 learners are required to get to a P4 grading. Jeffrey’s Bay Primary did not meet the requirements for a P4 grading. The offer made to the Applicant was on a P3 grading as per the grading norms and after considering the Applicant’s previous salary. To his knowledge, the Applicant had accepted the offer. He believed it would be irregular to appoint someone at a higher grading than what they qualified for in terms of the provisioning norms and that doing so would result in financial mismanagement. The P4 advertisement was not corrected in the erratum of February, but he believed it was due to them not being aware of the issue. He was not sure if grading requirements had changed as grading was done by the Head Office.

ANALYSIS OF EVIDENCE AND ARGUMENT

15. Section 186(2) of the LRA states “Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving –
(a) Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or related to the provision of benefits to an employee.”

Did the non-payment of the Applicant’s claim for resettlement monies amount to an Unfair Labour Practice?

16. It is common cause that the Applicant moved from Parys (Free State) to Jeffrey’s Bay (Eastern Cape) as a result of successfully applying for the position of Principal of Jeffrey’s Bay Primary School. It is further common cause that as a result of the aforementioned move, he incurred costs in the amount of R115 303.64 and that these costs were claimed from the Respondent, but not paid. It is also common cause that he is entitled to payment of the said monies and that same amounts to a benefit. No evidence was put before me as to why the said monies should not be or were not paid.

17. In view of the above, it is, to my mind, clear that by not paying the Applicant his resettlement claim the Respondent has committed an Unfair Labour Practice against the Applicant.

Did the appointment of the Applicant on a school grading of P3 and entry level P3 salary, despite the post being advertised as a P4 grading, amount to an Unfair Labour Practice?

18. It is not disputed that since 2018 the school has had 21 educators and that in terms of the post provisioning norms the school accordingly qualifies as a P3 graded school. It is also common cause that the advertisement indicated that it was a P4 grading post. The Applicant confirmed that he received a written offer which he read before signing. Further, that the written offer stated that the post was a P3 graded post and that the salary would be confirmed. Despite querying the post level and salary TBA, he nevertheless signed same. According to him this was due to him being told that he should sign in order to get into the system and that they would look at rectifying the situation later.

19. From the evidence it is clear that the written offer confirmed that the post was in fact a P3 grading. Despite concerns, that he raised, the Applicant signed the said offer. According to the post provisioning norms, the school does not qualify as P4 grading, but rather for a P3 grading. This correction was made in the written offer, prior to the signing of acceptance. Grading is done in terms of the provisioning norms and as such I do not believe that there could be deviation there from no matter what may have been said to him. Furthermore, despite what may have been said to him, a written document was signed setting out the terms of the offer and same was accepted. I agree with the view that to appoint a person in a position higher than what they qualify for, in terms of the post provisioning norms, would amount to an irregular appointment and quite possibly irregular expenditure.

20. The Applicant also argues that the previous principal was paid at a P4 level. This it argues is on the basis that due to the Respondent’s witness not being able to provide the salary level of the previous principal it should be assumed that it was in fact P4 salary notch. No further evidence was lead on the actual salary notch of the previous principal. I do not agree that an assumption can be made that, due to the witness not knowing or being in position to confirm the previous principal’s salary, it was a P4.

21. Despite the advertisement, the Applicant was given a written offer, which he considered and signed. I am of the view that if he was not satisfied with the contents of the offer, he should not only have queried same, but he should not have signed for acceptance until his concerns were either addressed, in the written offer, or he was satisfied to sign on the written terms provided. Unfortunately, for the Applicant, he did not do so. He is therefore, in my view, bound by the terms of the signed written offer, terms which are further confirmed by and in line with the post provisioning norms and post establishment of the school.

22. In view of the above, the Respondent has not committed an Unfair Labour Practice, by appointing the Applicant at a P3 grading and commensurate salary notch.

AWARD

23. The Respondent, Department of Education: Eastern Cape, has committed an Unfair Labour Practice against the Applicant, Mr Herman Vogel, by not paying his resettlement claim in the amount of R115 303.64.

24. The Respondent, Department of Education: Eastern Cape, has not committed an Unfair Labour Practice against the Applicant, Mr Herman Vogel, by appointing him a P3 Principal grading and commensurate salary notch.


25. As a result of the Unfair Labour Practice, as per paragraph 23 above, the Respondent is ordered to pay the Applicant his resettlement claim in the amount of R115 303.64, by 20 May 2023.

26. The Applicant is not entitled to the relief he seeks in terms of his appointment on a P3 Principal grading and commensurate salary notch.


Name: Clint Enslin
(ELRC) Arbitrator