ELRC541-22/23 EC

Case Number: ELRC541-22/23 EC
Commissioner: Hadley Saayman
Date: 19 August 2023

In the ARBITRATION between

SADTU obo MADELEY, CECIL
(Union/Applicant)

And

The HOD (SG)- Eastern Cape Department of Education
(1st Respondent)

Department of Basic Education –Eastern Cape
(2nd Respondent)

Applicant’s representative: Mr A Mbatani
Applicant’s address: 8 Bouwer Street
Extension 03
Patensie

Telephone: 0738879865
Telefax:
E-mail: cjmadeley1964@gmail.com

Respondent’s representative: Mr E. Hector
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: eun.hector@ecdoe.gov.za

DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the ELRC in terms Section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA) set down for Arbitration on 27 July 2023.

2. The Applicant was represented by Mr A Mbatani, an Union Official.

3. The Respondents were represented by Mr E Hector, a Labour Relations Officer.

4. The parties agreed to submit closing arguments by 4 August 2023, which were considered.


ISSUES TO BE DECIDED

5. I must decide whether the respondents committed an unfair labour practice in terms of section 186(2)(a) by failing to pay the applicant his outstanding benefits in respect of the upgrading of the school.

SURVEY OF EVIDENCE

6. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act, relevant to the dispute at hand.

APPLICANT’S EVIDENCE

7. The applicant was employed as a school principal of the Patensie Agricultural School (P2).

8. During 2018 the number of learners and educators increased and in January 2019, the school was upgraded to a P3 school.

9. The position of school principal was advertised. The school governing body (SGB) of Patensie Agricultural school recommended the applicant to be appointed as the school principal. The Department of Education then appointed the applicant as the school principal.

10. According to the circular no 3 of 2006 and PAM, the applicant was eligible for increase of 6 notches, from salary level 09 to salary level 10.


11. The Applicant claims that despite several requests for the Department of Education to adjust his salary, it fails or refused to adjust his salary level.

12. The applicant calculated the benefits as follows:

Salary Scale 2019
i. R527 232,00
ii. R547 029,00 (6% increase) = R 558 865,92
iii. R558 865,92 - R527 232.00 = R31 633,92
iv. R31 633.00 divided by 12 months = R2 636,16
v. R2 636,16 x 54 months (bonus included) = R142 352,64

13. The applicant therefore claims that the Department of Education owes him outstanding benefits in the amount of R142 352,64.

RESPONDENT’S EVIDENCE

14. The Employer submitted that for two consecutive years the educator post allocation reaches or exceeds the number of posts required and that the school was upgraded to a higher grading.

15. The Employer submitted that the minimum notch for a principal is R 502 147.00 and that the applicant’s salary was R 551 376.00, which is above the minimum notch.

16. The Employer further submitted that the applicant rank code was then changed from principal P2 to principal P3 and that the applicant is therefore not entitled to any salary increase.

ANALYSIS OF EVIDENCE AND ARGUMENT
17. When a school is regraded, the post of the principal is regarded as a new vacant post. Such post
must then be filled in terms of the required measures without undue delay.

18. It was common cause that principal post of the school has been upgraded from P2 to P3.

19. It was common cause that the vacancy was advertised and that the applicant and that the SGB
recommended that the applicant, who was appointed on 1 January 2019.

20. The salary of an educator who is appointed to a graded principal post, with a higher grade than
his/her current post, must be adjusted to the minimum notch of the salary range applicable to the
higher grade post, 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.

21. If the educator is appointed to a higher post level/principal post with higher grade on the same
date that he/she would have been eligible for progression, the progression will first be implemented after which his/her salary will be adjusted in terms of paragraph B.8.6.

22. The Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (2013) 34 ILJ 1120 (LAC) held that the distinction drawn by courts between remuneration and benefits is artificial and unsustainable. It also held that the definition of benefits is not limited to entitlements arising ex contractu or ex lege and may include advantages or privileges granted in terms of policy or practice subject to employer's discretion:
“In my view, the better approach would be to interpret the term 'benefit' to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer's discretion. In my judgment 'benefit' in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer's discretion”

23. What the Apollo Tyres case in essence means is that in order for a dispute to qualify as an unfair labour practice dispute relating to benefits that can be arbitrated in terms of section 186(2) the following requirements must be met:
• There must be an existing practice or policy in the workplace that gives the employer a discretion to grant certain benefits; and
• A demand must be made by the employee that his employer must grant those benefits to him/her; and
• The employee must claim that his/her demands should be met because the employer has acted unfairly in exercising his discretion and refusing the benefits,

24. In Apollo Tyres the Court said the following in relation to fairness:
"... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended."

25. Considering all the above, the Applicant, Cecil Madeley (persal no.50400274) is entitled to his adjusted and outstanding salary in the amount of R142 352,64 for the period 2019 to 2023.

AWARD

26. The Respondent, Department of Education-EC is ordered to pay the Applicant, Cecil Madeley (persal no.50400274) his adjusted and outstanding salary in the amount of R142 352,64 (One hundred and forty-two thousand three-hundred and fifty-two rand and sixty four cents) for the period 2019 to 2023.


27. The above-mentioned amount must be paid by the Respondents to the Applicant by no later than 20 October 2023 and would be subjected to normal statutory deductions.


28. The Head of The Department of Education-EC, (HOD) is ordered to ensure that payment of
R142 352,64 (One hundred and forty-two thousand three-hundred and fifty-two rand and sixty for cents) is effected to the Applicant, Cecil Madeley (persal no.50400274).

Signature:

Commissioner: Hadley Saayman
Sector: Education