ELRC744-22/23WC

Panelist : Alta Reynolds

Case Number : ELRC744-22/23WC

Date of Award : 13 July 2023


In the ARBITRATION between:


NAPTOSA obo MELANIE ANITA CASE
(Union/Applicant)

and

DEPARTMENT OF HIGHER EDUCATION AND TRAINING
(Respondent)


DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down by the Education Labour Relations Council (ELRC) as an alleged unfair labour practice relating to benefits referred in terms of section 186 (2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was conducted virtually via Zoom video conferencing over two sittings on 19 May 2023 and 13 June 2023.

2. Present for the referring employee (the Applicant) were Ms Cailyn Harris (NAPTOSA Official as Representative) and Ms Melanie Anita Case (the Applicant). Present for the employer, the Department of Higher Education and Training (the Respondent), was Mr Joshua August (Senior Labour Relations Officer as Representative).

3. The proceedings were conducted in English with Zoom, digital and electronic recordings made.

4. No explanation of the arbitration proceedings was required by the parties.

5. A preliminary issue was raised that the dispute was initially referred as M Case and 2 Others, being Ms Zeldine van As and Ms Abigail Carlse as noted in the arbitration referral documents. However the referral to conciliation was only for Ms Case. A joinder ruling was considered to join the other two Applicants in the arbitration proceedings, who had both referred separate but similar disputes, but it was decided by the parties to only deal with Ms Case’s dispute in these proceedings.

6. Written closing arguments were requested and agreed to at the last sitting of the arbitration. It was agreed by both parties that they would submit their closing arguments simultaneously to the ELRC’s Case Management Officer and copied to one another and the Panelist via e-mail by 23 June 2023.

7. The ELRC was requested to amend the award due date accordingly on the case management system. The parties’ written closing arguments were received on due date.

ISSUE TO BE DECIDED

8. The purpose of this arbitration is to determine whether the Respondent had committed an unfair labour practice relating to benefits in terms of section 186 (2)(a) of the LRA by withdrawing the Applicant’s acting appointment in the position of Head of Department as at 30 September 2022 prior to the acting appointment termination date of 31 December 2022 and if unfairness is found, to grant relief that the Respondent pay the Applicant the acting allowance of R5519.57 per month totalling R16558.71 for the period 1 October 2022 to 31 December 2022. The onus of proof is on the Applicant in this matter.

BACKGROUND TO THE DISPUTE

9. The following information was obtained from the pre-arbitration minute drafted by the Panelist and accepted by the parties on 22 May 2023.

The following facts were established as common cause

10. The Applicant commenced service with the Respondent in 1990, resigned in 2003 and re-joined the Respondent in 2013. She occupied the position of Programme Manager at post level 2 with Persal number 50457853 at the Respondent’s Northlink TVET College in Bellville, Cape Town, and was appointed to act in the post of Head of Department at the same College from 9 August 2021 until 31 July 2022. The Applicant was informed in writing on 1 August 2022 by the Respondent that the acting appointment will be extended from 1 August 2022 until 31 December 2022 or until the post is advertised and an appointment is made, whichever comes first. The Respondent withdrew the Applicant’s acting appointment in a letter dated 25 August 2022, on notice with effect from 30 September 2022, which was received by the Applicant on 7 September 2022. The Applicant received an acting allowance of R5519.57 per month for the period from 1 August 2022, which was paid up till 30 September 2022. A grievance was registered by the Applicant on 14 October 2022, which remained unresolved on 28 November 2022 prior to referring the dispute to the ELRC on 13 December 2022. The Respondent’s Acting Appointment Policy at paragraph 4.2.5 relates to this dispute and reads as follows:

4.2.5 The appointment to act in the senior post must be for a period longer than six (6) weeks, but limited to a maximum of twelve (12) months. Only in circumstances that are beyond the control of the Employer will an acting period be extended beyond twelve (12) months. Approval for extension must first be obtained from the delegated authority.

11. The Applicant applied for and was appointed, effective from 1 April 2023, into a different Head of Department post than the one she had acted in.

The following facts were in dispute:

12. Whether a reasonable expectation had been created that the Applicant would be paid the acting allowance for the post of Acting Head of Department for the full period until 31 December 2022.

13. Whether the Applicant is entitled to payment of the acting allowance for the three months from 1 October 2022 to 31 December 2022 after the acting appointment was withdrawn.

14. Whether an unfair labour practice had been committed due to the Respondent having prematurely terminated the Applicant’s acting appointment without consultation and in breach of the appointment letter.

SURVEY OF EVIDENCE AND ARGUMENT

15. Ms Melanie Anita Case, the Applicant, testified under oath for the Applicant party.

16. Mr Muziwakhe Mathe, Deputy Principal: Corporate Services, testified under oath for the Respondent.

17. Bundles of documents were handed in by both parties and admitted to what they purported to be.

18. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, where relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE APPLICANT’S EVIDENCE

19. The Applicant’s case was that an unfair labour practice was committed against the Applicant. The Applicant was appointed as a post level 2 Programme Manager and was requested to act in a post level 3 Department Head position since 1 August 2021. During August 2022 the Applicant received another letter requesting her to continue acting for the period 1 August 2022 to 31 December 2022. The Applicant was further informed in this letter that she will act until the contract ended or the post was advertised or an appointment was made in the position. The Respondent reneged on this original agreement and terminated it prematurely with no reason given at the time. The decision to terminate her contract early on 30 September 2022 when she had to vacate the post was also taken without any consultation so therefore the Applicant felt a reasonable expectation was created that she would act and will receive the remuneration as stipulated in the letter received from the Respondent. The relief sought was that the College honours the agreement and that the Applicant is paid the acting allowance of R5519.57 per month for the three month period from 1 October 2022 until 31 December 2022. They would only call the Applicant to testify and would rely on the documentary evidence as contained in the bundles of documents.

20. Ms Melanie Anita Case, the Applicant, testified as follows under oath in her evidence in chief: She was currently Head of Department of Business Studies at Northlink TVET College (the College) and was appointed permanently in this position on 1 April 2023. Prior to this she was appointed as Acting Head of Department from 6 August 2021 to 30 September 2022 and then moved back to her previous position of Programme Manager in the Management Assistance Department. She had to move back into the position of Programme Manager since she received a letter from Head Office Human Resources Department on 7 September 2022 informing her the contract for the acting position was terminated. She referred to the letter in the bundle of documents from Human Resources Department dated 1 August 2022 offering her an acting allowance for acting in the post of Head of Department, which she signed and accepted. The letter stated that she will be paid a non-pensionable acting allowance of R5519.57 per month (before deductions) by the College for the period of 1 August 2022 until 31 December 2022 or until such time that the post is advertised and an appointment is made by the Respondent, whichever one comes first. She also referred to the Notice of Termination of an Acting Appointment letter dated 24 August 2022 signed by the Principal of the College on 25 August 2022. The reason given in the letter that her acting appointment is coming to an end on 30 September 2022 is that it is in line with section 4.2.5 of the Acting Appointment Policy. The post was never advertised and no appointment was made into the post, as stated in the letter of 1 August 2022. She was only remunerated for August and September 2022.

21. She was referred to paragraph 4.2.5 of the Acting Allowance Policy (the Policy), in particular the part about circumstances that are beyond the control of the employer that an acting period can be extended beyond 12 months, with approval to be obtained from the delegated authority. Her understanding of this section was that the Principal of the institution could have sought approval from the Respondent as the Principal is deemed to be the delegated authority. Her understanding of delegated authority is that in this case the Principal can make decisions relating to appointments, promotions, acting positions and allowances. She believed the whole process was unfair since there was no consultation, communication or discussion regarding the early termination of her acting appointment. She was just called into the Campus Manager’s office and handed an envelope and opened it. She read the letter and did not understand it entirely. She then went to her superior, her Academic Head Ms Heloise Lotz, who also read the letter and indicated that according to the letter the contract would terminate as at 30 September 2022. She was very perturbed as it came while she was doing a lot of things in the acting post, but she adhered to the letter since it came from the Principal. The correspondence that she had received had firstly created an expectation since she had a firm contract in her hand with an expectation of an amount to be paid to her. She secondly had an expectation with respect to the work she was performing since she had to stop those processes in the middle and could not complete them. As to the number of days notice given to her, she was given the letter of termination on 7 September 2022 and was told that she needed to vacate the post on 30 September 2022, which was not a full calendar month of 30 days’ notice. The duties and projects that she was busy with in the acting position were delegated to somebody else, who also left the institution and the work just came to a standstill.

22. Ms Case testified as follows under cross-examination: She confirmed that her first date of appointment in the acting post was on 1 August 2021 and agreed that the appointment letter issued on 1 August 2022 would have taken her beyond the 12 month acting duration described in the policy. She agreed that she had developed as a lecturer and professional during the acting period from August 2021 and this had assisted towards her being successfully appointed as Head of Department on 1 April 2023. As to whether the purpose of the Acting Appointment Policy had been achieved in her case, she saw development on two sides and with respect to personal development she did more that what was expected and the development she had was her own development. She agreed that the appointment in the acting post had provided her with the professional development opportunities of Head of Department. There were five Heads of Department appointed at the Tygerberg Campus whilst she was acting. She explained the structure and hierarchy from the post level of Head of Department and that of Programme Manager, of which the detail is not repeated here. There were seven other Programme Managers apart from herself. As to whether it would be unfair to not allow the other seven Programme Managers to act in the Head of Department post after she had reached the 12 months of acting, she responded it would not be unfair but the post should have been advertised and she should have been afforded the opportunity to apply for it. The post was not advertised after the 12 months. She agreed other people should also be allowed the opportunity to develop.

23. She was referred to paragraph 4.4 of the Policy regarding the circumstances to appoint to an acting post and when an acting allowance is payable or not. She agreed that an acting allowance is not payable if a senior post is no longer vacant and funded and that it cannot be acted in if its no longer vacant and funded on the structure. She agreed with reference to paragraphs 4.9.1 and 4.9.2 of the Policy that if she is no longer appointed to act that she is not entitled to receive an acting allowance. She based her reasonable expectation that she would be paid the acting allowance on the second paragraph in the letter of 1 August 2022. She was expected to be paid the acting allowance for the period 1 August 2022 to 31 December and that the post would be advertised and that she would have the right to apply for it. She disagreed that the acting allowance could be ended if anything happened in the meantime that could have brought her acting appointment to an end, since she had a document (the letter of 1 August 2022) that stated otherwise. Her acting allowance would have ended during the period if she was appointed permanently in that position since if the post was advertised she would have been successful in her application. She agreed if the post was advertised her acting appointment would come to an end. She confirmed certain aspects of her evidence in chief, which is not repeated here.

24. As to whether the month’s notice to terminate the acting appointment was for the purpose of mitigating the impact on operations, she disagreed since operations came to a standstill and a handover could not take place. Operations at the Campus was not her responsibility but that of all or them, Lecturers, Heads of Department, Programme Managers, etc. Notice was given but for her the notice period needed to come with consultation, she just received the letter, which nobody discussed with her. It could happen that the Respondent had made a mistake and it would be reasonable for the Respondent to take steps in an attempt to correct it, but it will only be reasonable if it is done in consultation. She was aware that Ms van As’s acting appointment was also terminated with hers for the same reason. As to the version that the Respondent terminated the acting appointments of all the officials who had acted beyond 12 months, she was not privy to the information and part of the discussion regarding their contracts. She agreed that the Principal was the delegated authority and was empowered to withdraw an acting appointment. She was aware of the Post Provisioning Norm (PPN) that the College had embarked upon and all that she knew was that a warm body had to be attached to a particular post and did not know how the posts were arrived at. She was referred to the current structure of the Tygerberg Campus, in which there are three Heads of Department posts and of which one is for Ministerial Delivery. The Head of Department position that she occupied was advertised around June or July 2021. It was not advertised again after the acting appointment was withdrawn. Her understanding about the circumstances beyond the control of the employer that an acting appointment can be extended beyond 12 months was that if functions still needed to be performed and also for the purpose of a more flexible workforce. She was not aware if there were other officials who were eligible to act in the post, but disagreed that other officials could act in the post because of the programmes that she needed to manage, with specialisation in financial management, management systems and other components that would differ. As to whether it would be unfair for the Respondent to extend her acting appointment beyond 12 months when there were other incumbents who also needed professional development as the Policy described, this was the Respondent’s Representative’s opinion.

25. Ms Case testified as follows under re-examination: No other reasons were given to her beforehand as to why her acting appointment was terminated prematurely. There was also no consultation regarding this. The only two reasons the appointment could have ceased was if the post was advertised and somebody was appointed in the post, which was not the case. The expectation was created for her because of the dates given to her for the acting appointment. She questioned why the extension letter was given to her knowing that the 12 months had been exceeded, which definitely created an expectation for her. No interview or selection process took place to find other suitable candidates for the post after the termination of her acting appointment. The acting appointment was not only for the reason to grow a person and for a development process to take place, but to fill a gap needed to perform the work. If the College had advertised the post and made an appointment, her reasonable expectation would no longer exist. She was aware of acting positions running for very long periods, in some cases almost six years. When she received the termination letter she just accepted it, with the Respondent not even knowing what she had done over the 12 months. She would have felt different if the Respondent had called her in and explained the reasons why her contract was to be terminated. She would then have been given the opportunity to ask questions and would have settled with the explanation of the reasons even if she did not agree with it. It was not fair of her to be disadvantaged by an error made by the College.

THE RESPONDENTS’ EVIDENCE

26. The Respondent’s case was that it was correct that the Applicant was appointed in the acting position in August 2021 and that she received another notice in August 2022, which was withdrawn in the same month and the required one month’s notice was given. The Applicant was informed in the notice of termination that the reason was because in terms of the Acting Allowance policy she had acted in the post since August 2021 and had exceeded the 12 months allowed in the policy for an acting appointment. Since the withdrawal was sudden and the understanding was that people may have made plans, a month’s notice was added. When the Respondent came to realise that the current appointment put the Applicant beyond the 12 month period, they tried to remedy the erroneous appointment by issuing the notice of withdrawal. The Respondent believed that an unfair labour practice had not been committed since the payment of the acting allowance is dependent on being appointed in an acting post. Since the acting post was withdrawn the Applicant had no entitlement to a claim and acting allowance since the acting function had ceased.

27. Mr Muziwakhe Mathe, Deputy Principal: Corporate Services, testified as follows under oath in his evidence in chief: In the position of Deputy Principal: Corporate Services issues relating to Human Resources and appointments fell under his responsibility. He was referred to the Acting Appointment Policy (the Policy) and confirmed it was the document that they currently implemented when they are dealing with issues of acting positions. He also confirmed the content of certain paragraphs and explained the purpose of acting appointments. He in particular confirmed that an acting allowance will only be paid if an appointment is made in a vacant and funded senior post, further that an acting allowance will not be paid if the period is less than six weeks, which is then not regarded as an acting appointment. If an employee acted for a period exceeding 12 months the Respondent may find it difficult to pay the acting allowance since there had been a number of queries and findings where they have allowed staff to act for more than 12 months. There are circumstances in which the Respondent may allow an employee to exceed the 12 months, but reasons must be provided, with one of the main reasons being when they are waiting for Head Office to conclude an appointment. The Principal did not have the delegated authority to approve the appointment of support staff members from salary level 9 upwards and post level 5 upwards for Lecturers. In this instance for a post level 3 Head of Department the Principal has the authority to fill the post.

28. The Official must have been appointed in writing in an acting position, which must be a vacant and funded post to receive an acting allowance. Paragraph 4.3 of the Policy relating to acting appointment criteria was applicable in all circumstances where acting is initiated and where reasons behind the withdrawal of an acting appointment are given, and it was important for the Respondent as the employer to be consistent, transparent and objective in the manner in which the Policy is implemented. A letter is generally issued when an acting allowance is withdrawn and an acting allowance will not be paid by his office if the acting appointment is withdrawn. Since the Official was acting in a post level 3 position the Principal had the delegated authority to withdraw the acting appointment. The Applicant had acted for more than 12 months and it was felt that there was no justifiable reason for the continuation of the acting appointment, the Principal as the delegated authority then approved that such acting allowance should not continue. There were quite a number of staff members who acted longer than 12 months whose acting appointments and allowances were discontinued. It had nothing to do with the Applicant and was a pure application of the rule and to avoid setting precedents for this rule. He had joined the College on 1 June 2022 and for the first six months was engaged in assessing all the policies and if they are being applied consistently. During this process they found quite a number of staff members in acting positions that exceeded the 12 month period, and when reasons were not found to justify the continuation of the acting appointments it was impossible for the Respondent to continue with their acting appointments. It was unfortunate that the Applicant fell within the category that the acting appointments were stopped.

29. Other considerations that his office took into account when dealing with a request for an acting appointment to be extended beyond the 12 months was that the post that the Applicant acted in was no longer going to exist in the reviewed College structure going forward which was signed off in October 2022 after being agreed to in August 2022. An employee could only act in a vacant post. In this instance they could not appoint any other employee in the post since they already knew in August 2022 that the post would no longer exist. For this reason the post was also not advertised since it was not allocated on the structure. He explained how posts are managed at the College and the structure of the Tygerberg Campus as contained in the documents which was signed off by the Principal on 11 October 2022, of which the detail is not repeated here. At the time that the Principal issued the letter to the Applicant dated 25 August 2022 they had not yet applied the secondary reason for terminating the contract. Since the post was abolished and was no longer available, it was no longer vacant and funded and an acting allowance could not be paid, although there were circumstances where a post is not funded and a person acts in the post, but without funding it will be difficult to pay an acting allowance.

30. Mr Mathe testified as follows under cross-examination: Since Human Resources was part of his responsibilities he had an understanding of Human Resources and labour relations and understood what unfairness and an unfair labour practice meant. The continuity referred to in the Policy is the reason why staff members are appointed to act and had nothing to do with the case at hand as there was no further need for the acting appointment, the post itself was no longer part of the reviewed structure and is no longer vacant and funded. As to this being the first time the Applicant received this information that the post she was acting in has been abolished, he responded that it was good that the Applicant is now aware of the status of the post, but the termination was not as a result of the secondary reason. The primary reason was as stated in the termination letter that the Applicant had acted for more than 12 months in the post. There was no unfair labour practice since the Applicant was never appointed at post level 3 and was never a Head of Department but was appointed at post level 2 which is at Senior Lecturer level. The withdrawal of the acting appointment should not be classified as an unfair labour practice since an acting appointment contract can be withdrawn by any party at any time and a pure application of the rule had been applied.

31. As to the fact that the Applicant was not informed that the contract was coming to an end for these reasons and why the Applicant must be held accountable for a decision the Principal made in his delegated authority which created the expectation that she will act in the post until 31 December 2022, he responded that they had considered advertising the post so that another official could act in the post after the Applicant had acted for more than a year, but the secondary reason had kicked in that the post was no longer in the new structure. He did not believe the College should be penalised for including a clause for advertising the post but there were various reasons why the acting appointment could not continue. The Applicant can also not be held accountable since she is alleging an unfair labour practice. There was also no unfair treatment towards the Applicant since this applied to all other posts in the same category and it was not only the Applicant who was affected by this decision. The Respondent had the right to terminate the acting appointment if there was a valid reason. As to whether this was normal to terminate an acting appointment without consultation, both the letters were given to the Applicant in the same process and when he realised there was a complaint he handled the matter himself and explained the reasons in front of the Union and the Applicant. As to whether somebody should have told the Applicant before the grievance process about the secondary reason that the post will not be filled with only the primary reason of the 12 months provided, he repeated his earlier statement that the Applicant was given a letter to act and the same process of giving the letter to terminate applied, hence it was in order since she was given the letters. With the Applicant being literate she could have referred to the clause in the Policy and if it was not clear she could have gone to the relevant office to explain it to her.

32. He had personally addressed this position with the Applicant and understood that she may have expected the process to run to the end date, but either party can terminate it. Although the letter was received without prior consultation, the content of the letter clearly cited the policy and they did engage afterwards, when the Applicant was given the information. There were a few employees affected and this was the only case that was referred. He could not recall the date of the grievance meeting that he addressed this with the Applicant when it was put to him that it was on 12 November 2022. He disagreed that there was no consultation with the Applicant when she received the letter and that he only met with her afterwards, since there was a clear process, which is why she received the letter and it was not who gave the letter to her, but the fact the letter was given. It was difficult for him to respond to the statement that if there was more transparency from the first day and she did not just receive a letter in an envelope, that the issues could have been resolved without going outside the procedure. The clause of one year was introduced in the Policy to give other employees who qualify the opportunity to act and learn in a position since it would be unfair to only allow one person to act for such a long period. The new structure was finalised on 26 August 2022 and signed off on 11 October 2022. When the termination letter was issued to the Applicant on 25 August 2022 they had already decided internally that the post will not remain part of the new structure. They had to be proactive when making decisions for although the new structure had not been signed off yet the resolutions had already been made and they knew that the post would no longer continue.

33. Mr Mathe testified as follows under re-examination: There was no irregularity in the process that the Respondent issued the termination letter to the Applicant. A platform was created to address the Applicant’s concerns if she had not received an initial response to her concerns. The Respondent stood by the reasons provided in the letter withdrawing the acting appointment and needed to qualify that they do not need to advertise as they are not expected to wait until a post is filled to discover that the post no longer exists. At that time they realised that the post will no longer be filled and it was not necessary to advertise it. The rule was applied consistently to all Officials at the College and is still being applied consistently since more than one employee was affected. The Applicant did not have the right to claim the acting allowance for the remainder of the period since there was no longer an acting appointment. If an employee was acting and not paid it would be unfair. The withdrawal of the acting appointment automatically withdraws the acting allowance. As to whether there was a duty to consult if a prescribed rule is contravened, he responded that these are policy directed issues but there was nothing wrong in engaging about the decision and it would be unfair to not give an employee the opportunity to address the issue. He denied that the Applicant was not engaged since she was unhappy about the decision and the platform was there for her to express her concerns, during which engagement she was informed that they could not pay the acting allowance if the acting appointment is withdrawn. Even if there was an error the Respondent addressed it by creating a platform for her to address it.

CLOSING ARGUMENT

34. Written closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here, but have been summarised under Analysis of Evidence and Argument and taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

35. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the Respondent, the Department of Higher Education and Training, had committed an unfair labour practice relating to benefits in terms of section 186(2)(a) of the LRA by withdrawing the Applicant, Ms Melanie Anita Case’s, acting appointment in the position of Head of Department as at 30 September 2022 prior to the acting appointment termination date of 31 December 2022, and if unfairness is found, to grant relief that the Respondent pay the Applicant the acting allowance of R5519.57 per month totalling R16558.71 for the period 1 October 2022 to 31 December 2022. It was confirmed that the onus of proof is on the Applicant in this matter.

36. The relevant provisions in terms of section 186 (2)(a) of the LRA are the following:

(2) ‘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 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;

37. The policy document which applies in this matter and was referred to extensively by the parties is the Higher Education and Training Department (DHET) Acting Appointment Policy (the Policy) issued by Human Resources Management and Administration and approved on 12 November 2021 by the Director-General: Department of Higher Education and Training. The relevant paragraphs are the following:

1.1 Policy Statement

The Employer is committed to filling vacancies on a permanent basis, however there are circumstances where it is in the interest of the Employer to consider more flexible workforce work arrangements to meet operational needs and to ensure continuity. In this regard, acting appointments provide employees with a range of potential professional development opportunities whilst supporting and enhancing operational efficiently and the achievement of the Employer’s strategic goals.

4.2 Acting Appointments

4.2.2 The employee appointed in writing to act in a senior post, by the delegated authority, shall be paid an acting allowance provided that:
(a) he/she is appointed to act in a senior and vacant funded post.
(b) the period of appointment shall be for an uninterrupted period and longer than 6 weeks; and
(c) no more than two employees are simultaneously being compensated as a result of a single vacancy.
4.2.5 The appointment to act in the senior post must be for a period longer than six (6) weeks. But limited to a maximum of twelve (12) months. Only in circumstances that are beyond the control of the Employer will an acting period be extended beyond twelve (12) months. Approval for extension must first be obtained from the delegated authority.

4.9 Termination of Acting Appointment

4.9.1 The acting appointment will be terminated if:
(a) An employee in the acting position goes on maternity leave;
(b) An employee goes on continuous leave for 30 days or more, upon return from leave if the employee is still required to act in a senior position he/she must be re-appointed in writing to qualify for an acting allowance;
(c) The incumbent of the post returns to his/her post earlier than anticipated;
(d) The new permanent employee commences duty;
(e) The performance of the employee in the acting post is not satisfactory; and
(f) The employee is relocated for one or other reason.
4.9.2 Acting allowance will be terminated when acting appointment is discontinued.

38. The Applicant party’s version and arguments in closing are summarised as follows: They confirmed that the Panelist had to determine whether a reasonable expectation had been created that the Applicant would be paid the acting allowance for the post of Acting Head of Department for the period of August 2022 to December 2022, and whether an unfair labour practice had been committed due to the Respondent having prematurely terminated the Applicant’s acting appointment without consultation and in breach of the acting appointment letter.

39. The following aspects of the evidence of the witnesses were highlighted, of which that which was established as common cause is not repeated here. After the Applicant was informed in writing that her contract would be extended from 1 August 2022 until 31 December 2022 she received another letter on 7 September 2022 stating that the contract would be terminated, which was done without consultation. The Applicant felt that this entire process was unfair because no consultation had taken place with her at any stage to inform her of the acting appointment termination, with her called in and an envelope containing the termination letter simply handed over to her. She had agreed that the last appointment would have taken her acting period beyond 12 months but it was signed by the delegated authority and an expectation was created that she would act for the full period and be remunerated for it.

40. The Respondent’s witness had testified that the Policy was clear and that one may not exceed acting in the post for longer than 12 months, unless in exceptional circumstances, whereby the Applicant had reached the maximum number of months and could therefore not continue acting. He had also referred to the PPN (Post Provisioning Norms) which were instituted by the College and finalised in October 2022. The Applicant had no dealings with the PPN and only saw the document at the arbitration, which was not shared with staff.

41. The Policy at paragraph 4.2.5 stated inter alia that only in circumstances beyond the control of the Employer will the acting period be extended beyond 12 months and approval for extension must first be obtained from the delegated authority, who in this instance was the College Principal. It was therefore a plausible and reasonable assumption of the Applicant to rely on the fact that her acting appointment letter was signed by the relevant delegated authority that her acting period was extended in accordance with paragraph 4.2.5 of the Policy and that she would be remunerated for the period. The Applicant had also heard the reasons provided by the Respondent why her contract was terminated for the first time in the arbitration proceedings and none of the reasons were communicated to the Applicant when she received the termination notice nor were they aligned with what was initially provided to the Applicant when her acting period was extended.
42. The early termination of the Applicant’s contract was further regarded as unfair because her termination was unilateral and she was only given the opportunity to engage on the matter after she had invoked the grievance process, with no consultation beforehand. The Panelist was requested to find that the Applicant was unfairly treated, that no consultation had taken place and that she is entitled to remuneration in respect of the balance of the remaining months of her contract.

43. The Respondent’s version and arguments in closing are summarised as follows: The Respondent referred to the facts established as common cause and the evidence led at the arbitration to confirm that that Applicant is not entitled to the relief sought in her referral. The test to be applied to determine whether an unfair labour practice has been committed was addressed with reference to case law, of which the full citations are not repeated here and related to the right to a benefit which arose either ex contractu (in terms of contract) or ex lege (in terms of law).

44. In applying these principles, it was established that the entitlement to the payment of an acting allowance would be dependent on an appointment to act and that once the appointment to act is withdrawn or terminated an employee would not be entitled to the payment of the acting allowance, which was conceded to by the Applicant and confirmed by the Respondent’s witness. It was submitted that the Applicant does not have an entitlement to claim the payment of the acting allowance due to the fact that her acting appointment was withdrawn, on notice, by the delegated authority.

45. As to the fairness of the discretion exercised by the Respondent when it withdrew the acting appointment, it was common cause that the acting appointment was withdrawn on notice since the Applicant had acted in the post for a period exceeding 12 months in terms of paragraph 4.2.5 of the Policy. The evidence was that when the anomaly was discovered the Respondent had immediately sought to rectify the error, with the Respondent not to be penalised for correcting the error. The Respondent’s decision was applied across the board leading to the termination of other acting appointments for the same reasons, with the Applicant conceding that another Official’s acting appointment was terminated under the same circumstances.

46. With respect to the alleged reasonable expectation that the payment of the acting allowance would have continued up and until December 2022, the Respondent submitted, with reference to case law, that to establish whether a reasonable expectation had been created the Applicant should have firstly demonstrated that she had a subjective expectation that the acting appointment would have endured for the entire period, and secondly that the subjective expectation demonstrated was objectively reasonable. The provisions in the appointment letter that the appointment could be terminated on certain grounds, dampened, if not eradicated, her claim to have a subjective expectation that the appointment would have endured for the entire period, with their submission that such an expectation was not objectively reasonable.

47. The circumstances beyond the control of the employer in paragraph 4.2.5 of the Policy were relevant subsequent to the withdrawal of the acting appointment in that the post that the Applicant had acted in was abolished from the Tygerberg Campus structure as at 11 October 2022, which was also contrary to the requirement in the Policy that an acting appointment can only be made into a vacant and substantive post. The Respondent was accordingly of the view that the Applicant had failed to discharge the onus of proof that the Respondent had committed an unfair labour practice and that she is entitled to an acting allowance. Further, that in the event that it is found that the issue of withdrawing the acting appointment could be regarded as an unfair labour practice, the Respondent did not exercise its discretion to withdraw the appointment arbitrarily, capriciously or inconsistently and should not be punished for attempting to ensure consistency and fairness in its processes.

FINDING

48. I have considered all the evidence and argument presented, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities. The following is accordingly found, on the balance of probabilities and in the circumstances of this case, with the following aspects of the evidence of the Applicant and the Respondent’s witness Mr Mathe deemed relevant in making a determination in this matter:

49. The Applicant conceded that her acting appointment in the post of Head of Department since August 2021 had assisted in her being the successful candidate for the Head of Department post in which she was appointed permanently with effect from 1 April 2023. In this respect the purpose of an acting appointment as described in the Policy had been fulfilled, which is to provide professional development opportunities to employees. Although the Applicant contended that she was disadvantaged by the early termination of her acting appointment, she did however attain the advantage later of being appointed permanently into a position at the level which she had acted in, accompanied by the commensurate remuneration.

50. The Applicant also conceded that the Policy did not allow for an acting appointment to extend beyond 12 months unless circumstances beyond the control of the employer applied and approval for the extension is obtained from the delegated authority. In the Applicant’s version the Principal of the College, Mr Xolelo Brian Phike, as the delegated authority in this instance had signed the agreement to extend her acting appointment from August 2022 to December 2022 beyond the 12 months prescribed in the Policy, hence she assumed that the Principal had the requisite authority and that the applicable circumstances had been considered in extending the contract. The Respondent’s witness Mr Mathe had testified that after he commenced in the position of Deputy Principal: Corporate Services in June 2022, he for the first six months was engaged in assessing all the relevant policies and whether they were being applied consistently and correctly. During this process they found that a number of staff members were acting in positions that exceeded the 12 month period. When reasons were not found to justify the continuation of the acting appointments it was impossible for the Respondent to continue with their acting appointments in terms of the Policy. He also explained that the purpose of the restriction of 12 month period for a particular incumbent was to allow other Officials to also apply for the acting post and be afforded growth and development opportunities in the acting position.

51. The Applicant had furthermore submitted that the conditions under which the acting appointment could be prematurely terminated had not applied, namely for the post to be advertised and an appointment to be made. This was not disputed by the Respondent’s witness, whose testimony was that in the College structure review by the PPN College Implementation Committee (CIC) on 26 August 2022 it was already resolved that the acting Head of Department post which the Applicant had occupied would be removed from the future structure, hence the post would no longer be vacant and funded. Further, that in such circumstances it would not have been appropriate to advertise the post, bearing in mind that the Applicant’s acting appointment extension was for the period 1 August 2022 to 31 December 2022, during which time these deliberations had taken place at the CIC on 26 August 2022 and were subsequently signed off on 11 October 2022. In this instance they could not appoint any other employee in the post since they already knew in August 2022 that the post would no longer exist. For this reason the post was also not advertised since it was not allocated on the structure. Because the post was abolished and was no longer available, it was no longer vacant and funded and an acting allowance could also not be paid.

52. The Applicant conceded in this regard that an acting appointment can only be made in a vacant funded post and that the acting allowance is only payable in terms of the Policy for an acting appointment in a senior post that is vacant and funded. She was unaware of the decision made at Council level that this acting Head of Department post was to be abolished and that it would no longer be vacant and funded and submitted that she was only made aware of this at the arbitration as the secondary reason why her acting appointment was terminated.

53. The Applicant was also aggrieved by the manner in which she was informed of the early termination of her acting appointment as at 30 September 2022, whereby the termination letter signed on 25 August 2022 by the Principal, was merely handed to her in an envelope on 7 September 2022, with no explanation nor prior consultation, communication and discussion. The Respondent’s witness did not dispute this and could not comment on who handed over the letter to the Applicant or how it was handed to her, except that the normal process was followed that a letter is issued to an employee. The Applicant was understandably aggrieved by the cavalier manner in which she as a senior staff member was informed of the early termination of her acting appointment and proceeded to register a grievance. She also viewed the less than 30 days’ notice for her to vacate the acting post as insufficient to complete and/or hand over the projects she had initiated in the acting position.

54. The Respondent’s witness Mr Mathe responded to the Applicant’s version that there was no prior consultation, discussion or explanation surrounding the termination of her acting appointment, that he had personally engaged with the Applicant and her Union afterwards to discuss the issues and explain the reasons to them, but it is noted that this was engagement was during the grievance process and not prior to her receiving the termination letter. The Applicant had conceded that if consultation and discussion had taken place before the notification of the termination that, even if she had not agreed with the decision, she would have nevertheless accepted it. On this point it is worth observing that more appropriate and timeous communication, explanation, discussion and consultation about the early termination of the Applicant’s acting appointment could have avoided the grievance and subsequent dispute referral to the ELRC.

55. The Applicant submitted that the letter extending her acting appointment had created an expectation that her acting appointment would only terminate on 31 December 2022 and that the acting allowance would be paid to her until then. She based her reasonable expectation that she would be paid the acting allowance for the full period on the second paragraph in the letter of 1 August 2022, which stated that she would act until such time as the post is advertised and an appointment is made, which eventualities it became common cause never took place. This letter would certainly have created an expectation, whether subjective or objective, that the acting appointment would terminate on 31 December 2022, unless the intervening conditions had applied, with no assurance of certainty. Other reasons not articulated in the letter of 1 August 2022 could however also lead to the acting appointment agreement being prematurely terminated, which will be addressed hereunder.

56. The Applicant had alleged a breach of contract when the acting appointment was terminated prematurely and that she was disadvantaged because of the unplanned for and unexpected loss of the acting allowance of R5519.57 per month totalling R16558.71 for the period 1 October 2022 to 31 December 2022. Although this forum is not specifically focussed on the interpretation of contracts and the legal principles associated with contracts, including the implications when a contract is terminated because of an error that has been made in the conclusion of the contract or agreement, I deem it necessary to consider these principles since the Respondent’s witness had referred to the erroneous extension of the acting appointment beyond the 12 month period and it was submitted that the Respondent should not be penalised for such a mistake having been made.

57. In this regard the validity or voidability of a contract should be considered, as well as how mistakes made in the articulation of a contract should be approached. The requirements for a valid contract are consensus, certainty, offer and acceptance, possibility, legality, capacity and formalities. The requirement of legality requires that contractual terms contained in an agreement may not be in contravention with any existing legal rule, which could include the internal rules and policies of an institution. There is also a distinction between a voidable and a void contract. A void contract refers to an agreement where from the onset the contract is unenforceable in law and is the opposite to a valid contract.

58. It is a general rule in contract law that a material mistake common to both parties to a contract voids the contract. Three different kinds of mistakes are distinguished in this regard, being unilateral, mutual and common mistakes. A unilateral mistake happens where only one party is mistaken, while the other knows, or it is assumed he/she knows, the first party’s mistake. A mutual mistake happens where the parties misunderstood each other and are at cross-purposes. A common mistake is when both parties to the agreement labour under the same incorrect perception of fact external to the minds of the parties, with their consensus based on an incorrect assumption or supposition. In this instance the Respondent had conceded that a mistake of a unilateral kind had been made and that the Principal had incorrectly applied his delegated authority to extend an acting appointment beyond the 12 month period, which appointment or agreement is in the nature of a contract between the Respondent and the Applicant.

59. No evidence was presented that circumstances beyond the control of the Respondent had applied when the Applicant’s acting appointment was extended, with the Respondent’s witness testifying that he could not find any justification as to why several acting appointments were extended beyond the 12 month period, which subsequently led to the termination of these acting appointments. In this regard it is supported that the Respondent’s delegated authority in the Principal had made a mistake in extending the acting appointment of the Applicant beyond the 12 month period prescribed in and in contravention of the Policy, as well as that a vacant and funded post must exist for an acting appointment to be confirmed in terms of the Policy, which errors could consequently render the Applicant’s acting appointment agreement or contract void or invalid. The Applicant had conceded that it would be reasonable for the Respondent to take steps to attempt to correct such a mistake, but considered it only reasonable if it was done in consultation and the reasons were explained to her, that she could have been given the opportunity to ask questions and would have settled with the explanation of the reasons even if she did not agree with it. She also felt it was not fair for her to be disadvantaged because an error was made by the College.

60. As to whether the Respondent can be held to such a mistake and be compelled to pay the Applicant for the remainder of the period from 1 October 2022 to 31 December 2022, the legal question of whether an error is reasonable and therefore excusable, was considered in the case of National Union of Metalworkers of South Africa and Another v Transalloys (Pty) Ltd (JS237/15) [2017] ZALCJHB 364 (21 September 2017) in which the employer had placed an internal advertisement for three positions of laboratory assistants. During the interviews they were informed that the successful candidates would be remunerated at a salary level 5C, being approximately R24000 per month. An offer was made but the salary reflected in error on the employment offer was on level 5A, being approximately R28000 per month, at which rate they were remunerated when they commenced as laboratory assistants. The respondent in that matter later became aware of the error in the salaries and corrected it with immediate effect, whereafter a dispute was referred to the Labour Court by NUMSA. The Court was asked to decide whether the employer was in breach of contract by unilaterally reducing the applicants’ salaries from level 5A to 5C. The respondent’s case was that it was a bona fide error since it was common cause that laboratory assistants are employed on salary level 5C and not level 5A. In this matter the Court concluded that the employees knew that they applied for positions of laboratory assistants on salary level 5C, that it was a bona fide error on the part of the employer and that the correction of the employees’ salaries to level 5C did not constitute a breach in the contract but rather a rectification. Relevant to the matter at hand is also the following statement by the Court:

[32] The fact that the contract was signed by the general manager does not automatically mean that a contract that contains an error should remain intact and be enforceable, even where the contract indeed contains an error, simply because it was signed by the general manager. This Court has to consider the context within which the contract came into existence. The position of lab analyst was advertised on level 5C, it was confirmed during the interview that the post was on level 5C, all other lab analysts are employed on level 5C and the post of lab analyst was graded on level 5C. It is within this context that I accept that the intention was to appoint the employees on level 5C and a contract within this context that reflected level 5A, contained an obvious error in respect of the salary level.

61. Based on the foregoing guidance I find that the Respondent, through the Principal as delegated authority, had made a bona fide error by losing sight of and contravening the provisions in the Policy as already referred to. Furthermore, that since the acting appointment extension did not comply with the prescripts of the Policy, that the agreement reached or contractual arrangement relating to the Applicant’s acting appointment is also deemed to be void or invalid. This will negate any expectation that the Applicant may have had that her acting appointment would continue until 31 December 2022 and that she would be paid the associated acting allowance until that date.

62. In the circumstances I find that the Applicant has been unable, on the balance of probabilities, to discharge the onus to prove that the Respondent had committed an unfair labour practice by terminating her acting appointment which was to expire on 31 December 2022 on 30 September 2022 and not paying her the acting allowance for the three months from 1 October 2022 to 31 December 2022. The earlier observation however needs to be reiterated in order to avoid any recurrence of a similar dispute, that such a premature termination of an acting appointment, or a change to any terms and conditions of service of an employee, should be based on appropriate prior consultation, discussion and communication.

AWARD

63. The Respondent, Western Cape Department of Education, had not committed an unfair labour practice relating to benefits by terminating the Applicant, Ms Melanie Anita Case’s acting appointment as Head of Department on 30 September 2022 and not paying her the acting allowance for the period from 1 October 2022 to 31 December 2022.

64. In the circumstances the Applicant is not entitled to any relief.

65. No order as to costs is made.

Panelist: Alta Reynolds (Ms)