ELRC783-22/23MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY

Case No. ELRC 783-22/23 MP

In the matter between

PSA obo T. NICHOLAS XABANISA Applicant

and

DEPARTMENT OF HIGHER EDUCATION Respondent
AND TRAINING/ EHLANZENI TVET COLLEGE

PANELIST: YOLISA NDZUTA

LAST HEARD: 24 APRIL 2023

DATE OF AWARD: 01 June 2023

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(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 relating to the provision of benefits to an employee.

SUMMARY: Whether the Respondent perpetrated an unfair labour practice relating to salary adjustment due to the Applicant per the interpretation and application the collective agreement

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me initially on the 15th of March 2023 and was concluded on the 24th of April 2023. During the proceedings, the Applicant, Mr Xabani was represented by Ms Pamela Letebele of PSA while the Respondent, was represented by Mr Malinga.

2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.


THE ISSUE IN DISPUTE

3. I am required to determine whether an unfair labour practice was committed by the Respondent relating to his salary which was being calculated per the application of the incorrect notch. The Applicant seeks that his salary notch be corrected and that he be compensated accordingly.

4. Prior to the hearing of evidence, the Respondent conceded to the merits of the Applicant’s dispute and thus parties agreed that the matter proceed as a stated case only in so far as the quantum (or compensation) due to the Applicant.

THE BACKGROUND TO THE DISPUTE

5. In these proceedings the Applicant referred an unfair labour practice relating the incorrect salary notch being applied for the determation of his salary.

6. The Applicant claimed that his salary was due for an adjustment (increase) considering the application of the Personnel Administrative Measures (PAM) document read with ELRC collective Agreement 1 of 2010. The Applicant stated that as a REQV level 14 educator his salary was calculated on the incorrect notch.

7. The Respondent acknowledged the above and concede to same however required that the compensation due be determined by the official (HR) department per persal calculations.

SURVEY OF EVIDENCE AND ARGUMENT

8. There wasn’t any evidence submitted save for the financial determination by the Respondent of the correct notch due to be implemented.

9. The Respondent conceded to the merits and agreed that the matter proceed without evidence being presented. The Respondent then filed a document enclosing a notch due to be implemented.

10. The Applicant conceded to the amount proposed and advised that it could not oppose or deny the proposal of the Respondent seeing that it emanated from the HR and persal.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

11. As stated above, the parties agreed that the matter proceed per clause 18 of the ELRC constitution.

12. The applicant was directed to file its Statement of Case on the 5th of May 2023 and the Respondent was directed to file its Statement in Response on the 19th of May 2023.

13. The Applicant did not file its Statement of Case save to respond to the Respondent’s proposal. Correspondingly, there weren’t any submissions relating to the dispute save for the agreement to the notch correction and the concessions (confirmation) thereof.

14. This dispute is referred as an unfair labour practice,which is defined in terms of section 186(2) of Labour Relations Act 66 of 1995 as:

an 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 relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
[S. 186 amended by s. 41 (a) of Act No. 12 of 2002. Sub-s. (2) added by s. 41 (c) of Act No. 12 of 2002.]

15. In considering the above, my task was to evaluate whether the applicant’s dispute pertaining the respondent’s conduct as constituting an unfair labour practice or not. Considering that the Respondent conceded to the merits, my analysis to that was not necessary.

16. After having established an unfair labour practice, the duty of a commissioner is to make an order that is reasonable which may include compensation in terms of section 193 (4) of the Labour Relations Act 66 of 1995.

17. The applicant did not file submissions or argue for any compensation. The only outcome it sought per its referral was for the notch to be corrected.

18. With regard to the above, I make the following award.

AWARD

19. The Applicant has established that an unfair labour practice was perpetrated against him by the Respondent.

20. The Respondent is directed to correct the applicant’s salary notch to R492 769.50 by no later than 10 days of the issuing of this award.


Yolisa Ndzuta
Panelist: ELRC