ELRC739-22/23EC

Panelist: Sally-Jean Pabst
Case No.: ELRC739-22/23EC
Date of Award: 27 September 2023

In the ARBITRATION between:

NAPTOSA obo GOBEY, Mr Herbert H.G.
(Union / Applicant)

and

Eastern Cape Department of Education
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. This dispute relates to enforcement of a collective agreement in terms of section 33(A) of the Labour Relations Act 66 of 1995 (the LRA) read with clause 69 of the ELRC Dispute Resolution Procedures was arbitrated virtually via Zoom on 5 September 2023. The arbitration process was video-recorded, and the parties in terms of agreement both submitted their respective written closing arguments by latest 12 September 2023.

2. The Applicant, Mr Herbert H.G. Gobey, was represented by Advocate Gavin Duncan Saayman, an official from NAPTOSA, a registered trade union. The Respondent, the Eastern Cape Department of Education (ECDOE), was represented by Mr Lusapho Ndzongo.

3. The dispute was referred in terms of the alleged failure by the Respondent to adjust the Applicant’s salaries in accordance with the Applicant’s entitlement to recognition of prior teaching experience gained outside of the public education sector.

4. The Applicant submitted into evidence the PAM document relied upon, as well as various documents with monetary calculations of the amount outstanding. All was agreed between the parties as being what it purports to be.

ISSUE TO BE DECIDED

5. I have to determine entitlement – as well as the period and amount the Applicant is entitled to – in back-payment for salary adjustments not made in terms of the Applicant’s common-cause entitled to recognition of prior teaching experience in terms of the ELRC 4 of 2003 and ELRC 4 of 2009 as contained in the Personnel Administrative Measures (PAM) at B.8.4.3.

6. Specifically, the number of years of prior teaching experience to be recognised is in dispute. Only if recognition only partly-bestowed is established, subsequent calculations must indicate the payment amount due to the Applicant in terms of recognition for prior teaching actually due to him.

BACKGROUND

7. Mr Gobey is a Post Level 1 Educator in service of the Eastern Cape Department of Education (ECDOE) King Edward High School, in Matatiele, in the Eastern Cape. He has been serving in the employ of the ECDOE since 1 October 2010, and is currently earning R 337,248.00 per annum.
Ex tempore Ruling

8. During the course of the testimony of the Applicant Mr Gobey – the first witness testifying – it became very difficult to follow the evidence lead. This was because Adv Saayman was having to derive the evidence of complex payroll processes and terminology from Mr Gobey, who is not acquainted, nor conversant on the Respondent’s payroll processes and terminology. The Respondent repeatedly raised issue with the Adv Saayman guiding/leading his witness, which I noted, and I urged Adv Saayman proceed with caution, but as the testimony progressed it became quite apparent that a knowledge and understanding of the complexities of the payroll system is both necessary and vast. How from this system’s processes and rules the Applicant wishes to stake his claim on particular discrepancies of pay rates is actually within the knowledge scope of the representative of the Applicant, rather than the Applicant as a Post Level 1 educator who have never conducted payroll calculations nor dealt with the tables of notches and pay progressions necessary to properly create an understanding to any other person firstly on how it works, and secondly how these workings amount to the Applicant being entitled to a difference between what he received, and what he allegedly should have received.

9. The evidence being lead was clearly first-hand knowledge to the Applicant’s representative rather than the Applicant himself. The representative attempted to derive the information from the wrong person, which posed a considerable hurdle to understanding and fairness in terms of the rules of evidence and testimony. A witness who him- or herself has a full understanding might be a better person to testify. To this, Advocate Saayman himself opted to testify to these complex financial tables and scales, to facilitate a better understanding – by both myself and Mr Ndzongo as spectators – who was trying to grasp these concepts.

10. I concurrently anticipated time consuming challenges with Mr Ndzongo’s cross-questioning of Mr Gobey – which might well have evolved from the way the Applicant brought its case – as unfairly prejudicing the Applicant’s case, as he would have to attempt to wade through the evidence without the required proper understanding of the concepts and tables and salary scales and notches.

11. The Respondent logically raised objection to the representative of the Applicant testifying, and I considered this objection in light of the fact that the Advocate would have been privy to the erstwhile evidence of Mr Gobey, and is also his representative, and the fact that the original plan was not for Adv Saayman to testify as a witness. After careful deliberation I decided it best to prioritise substance over form – this in terms a commissioner’s prerogative in terms of s138(1) of the LRA to conduct the arbitration in a manner he or she deems appropriate in order to determine the dispute fairly and quickly, whilst dealing with the substantial merits of the dispute with the minimum of legal formalities. I considered this being a dispute pivoting primarily on a question of entitlement in terms of a collective agreement common to the parties rather than on witness’ conflicting versions such as the case is in, for example, a misconduct dismissal dispute. Applying fairness to both parties, I advised the parties that I will allow the Applicant’s representative to testify, and accordingly will allow also Mr Ndzongo to testify if he wishes to, as well as to bring additional witnesses if he prefers, to be fair to both parties, equitably.

SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT’S EVIDENCE
12. The Applicant Mr Gobey wishes to claim R 173,964.25 in arrears salaries short-paid in terms of 6 years and 8 months’ prior teaching experience – six notches = six years – gained from 1 May 2004 to September 2010. This in terms of the Applicant’s entitled to recognition of prior teaching experience in terms of the ELRC 4 of 2003 and ELRC 4 of 2009 as contained in the Personnel Administrative Measures (PAM) at B.8.4.3.

13. After more than 6 years of teaching experience in the private teaching sector, the Applicant directly started in the employ of the Respondent on 4 October 2010. In terms of this he claims 6 notches increased from the baseline start-notch he was placed on in October 2010. The Applicant claims the difference between what he received, and what he would have received in terms of:
13.1. 6 notches higher from October 2010 to 31 March 2013, and
13.2. 2 notches higher from 1 April 2013 onwards
- this in terms of the Respondent having bestowed only 4 notches on him from 1 April 2013 onwards, instead of 6 notches. The outstanding amount was set out in written calculations until 31 January 2023, below:
ELRC739—22/23EC
NAPTOSA obo Gobey and Eastern Cape Education Department
Calculations for recognition of experience gained as per ELRC Collective Agreements 4 of
2003 and 4 of 4 of 2009.
And
Improvement of qualification as per Chapter B.10.2.4 of the Personnel Administrative
Measures (PAM) read with Government Gazette No. 24948 dated 21 February 2003.
Quantum for recognition of service and recognition of improvement of qualifications
Period Notch paid Notch supposed to be paid Salary received Salary supposed to receive Difference arrived at Actual difference in ZAR
4/10/2010-
31/3/2011 56 62 114936 122016 6/12 x
7080 3540.00
1/4/2011-
31/3/2012 56
(Annual Increase) 62 122751 130314 7563
(entire year) 7563.00
1/4/12-
31/3/13 56 62 131343 139437 8094
(entire year) 8094.00
1/4/13- 60 63 136680 140820 15/12 x 5175.00
30/6/14 (recognition 4140
of 4 years only done
from 2014
instead of
2010)
1/7/2014-
31/3/2015 61 (1% pay progression) 64 158049 162831 9/12 x
4782 3586.50
1/4/2015-
1/4/2016 85 (Entry level for REQV 14) 91 228984 243066 12
months 14082.00
1/4/16-
30/6/17 86
(annual increase) 91 245700 260811 3/12 x
15111 3777.75
1/7/17-
31/3/18
(Pay progression 1%) 86 92 248145 263427 9/12 x
15282 11461.50
1/4/18-
30/6/18 86 92 265515 281868 3/12 x
16353 4088.25
1/7/18 87 93 268167 284685 16518/ 12 1376.50
1/7/18-
31/3/19 171 183 271680 289932 18252/12 1521.00
1/4/19-
30/6/19 171 183 288525 307791 9/12 x
19266 14449.50
1/4/19-
30/6/2019 172 185 291402 310869 3/12 x
19467 4866.75
1/7/19-
31/3/20 173 186 292854 312420 9/12 x
19566 14674.50
1/4/20 -
30/6/20 173 186 292854 312420 3/12x
19566 4891.50
1/7/20-
30/6/21
No annual increase 175 (1% IQMS) 188 292854 315537 22683 22683.00
1/7/21-
31/3/22 178 (1.5% IQMS) 191 304746 323661 9/12 x
18915 14186.25
1/4/22-
30/6/22
(Annual increase) 178 191 313887 333372 3/12 x
19485 4871.25
1/7/22-
31/1/23 181 (1.5%IQMS) 194 318597 337683 7/12 X
19086 11133.50
TOTAL: R 156 021.75
Claim:
Amount: R 156 021.75 as a short fall.
Notch to be put on: 194

14. The Applicant elected not to, at this point in time, claim from 1 February 2013 onwards. It was the Applicant party’s expressed reservation to claim from February 2023 onwards in a separate dispute, and at an appropriate time, when appropriate bonus-calculations may be combined in such a dispute at a later stage.

RESPONDENT’S EVIDENCE
15. The Respondent’s case in summary is that it confirms the Applicant is indeed entitled to payment of outstanding salary adjustments in terms of his entitlement to recognition of prior teaching experience in private schools, but disputes the period he is claiming recognition for – 4 years of prior teaching, rather than 6 years of prior teaching, experience acknowledged. From whence, the amount of outstanding backpay differs greatly from the amount the Applicant is claiming.

16. Mr Gobey obtained his teaching qualification only on 12 September 2006, and he claims to have worked as an educator in private schools as from 2004, which means the period for which he must be recognised starts on 12 September 2006 only, however he is erroneously claiming from 2004. He is not entitled to recognition from 2004 to 12 September 2006 because he was not a qualified teacher during that time.

17. The Respondent called as witness its Acting Director of Human Resources Administration, Ms Buhle Madonsela, who echoed the above during her testimony under oath. On behalf of the Respondent she agreed to recognise the Applicant’s experience from 2006 – that being the year he obtained his qualification – because experience is recognised only when it is coupled with a teaching qualification. She explained that no person can call himself ‘an educator’ without having a recognised qualification as an educator – which the Applicant notably only obtained on only on 12 September 2006.

18. Ms Madonsela explained that the Respondent in 2014 rectified the Applicant’s service record, the system rectified automatically up until current. Ms Madonsela conceded that all monies owed to Mr Gobey had been paid by the department except for an amount that she noticed only during her testimony – an amount of R15 069.00 – which she on behalf of the Respondent agreed should be awarded to Mr Gobey.

19. The Respondent’s case in summary was that all additional amounts claimed should be deemed null and void – that in actual fact all has already been paid, except for above amount of R15 069.00 which Ms Madonsela submitted under oath is still due and owing to the Applicant.

ANALYSIS OF EVIDENCE AND ARGUMENT
20. I am in full agreement with both parties that the Applicant in this matter is entitled arrears salary adjustment claimed from the Respondent. The PAM document, at B.8.4.3.1, supports the Applicant’s entitlement to recognition of his previous teaching experience in the private teaching sector.

21. However, what remains in dispute is the period of previous recognition – whether from 2004 or from 2006 – and whether the adjustment have been appropriately effected from the Respondent’s side.

22. It is common cause between the parties that the Applicant worked as a qualified educator in a private school from 12 September 2006 and is accordingly entitled to the salary adjustments from there onwards. I agree with the Respondent’s contention that teaching experience without a proper teaching qualification cannot count towards recognition of prior teaching experience. My reasoning behind this is that teaching at for example a crèche or playschool or aftercare-facility where you teach 3-year-olds colours and shapes and how to hold a fork could logically also be seen as ‘teaching’ in terms of conveying knowledge to youngsters, similarly teaching English online to adults in foreign countries can be considered ‘teaching’, but it is not something that can reasonably or logically be claimed recognition for in terms of the Respondent’s scope of practice. I therefore am in agreement with the Respondent that only 4 years (not 6 years, as the Applicant claims) should be recognised.

23. The second issue in dispute is that the Respondent then only in 2014 rectified the Applicant’s service record to acknowledge the prior teaching experience – albeit 4 notches which I agree with and not 6 notches the Applicant wished for – and that the system had automatically rectified all his salaries up until the current day. This is clear and agreed to, even from the Applicant’s calculation-sheet in evidence, that he received 4 notches for the prior teaching experience. However, there was no evidence that the 4 notches acknowledged by the Respondent had been due from October 2010 to 1 April 2013 had been paid to the Applicant.

24. The Applicant party had submitted its calculations already months before this arbitration date to the Respondent and to myself – the initial version, and then with re-calculations submitted closer to the time, as this matter had been postponed twice before me over more than 6 months. Although I find it disappointing that the Respondent, prior to the arbitration, laissez-faire had not taken the time to sit and thoroughly calculate the various scenarios suggested by the Applicant, in terms of the Respondent having pleaded during the arbitration for a part-heard to consult and calculate and re-calculate, I could logically not justify yet another rescheduling to accommodate the Respondent’s calculations.

25. To avoid a part-heard arbitration hearing I allowed time during the arbitration for Ms Madonsela to make her calculations in our virtual presence while we waited for her, to which she duly returned the outstanding amount of R15,069.00. However she did not provide calculations as to how she came to calculate this amount. Nevertheless, this was her testimony under oath, and the Respondent’s case.

26. The Applicant party’s calculations notably indicates that from the period 1 April 2013 to 30 June 2014 recognition for 4 years’ experience was indeed given to the Applicant. This was echoed by the Respondent’s witness’ testimony. In terms thereof I understand why the Applicant party claims monthly amounts from there onwards, seeing as the notch was put at 60 for the 4 years – I can derive it is the remaining 2 notches for the 2 years’ recognition that I have off of the Applicant’s claim. Be that as it may, this left me with no choice but to do my own calculations.

27. I based on the Applicant party’s spreadsheet – I give credit to Advocate Saayman – but only for the period prior to the recognition of the Applicant’s 4 years of prior experience - prior the period 1 April 2013 to 30 June 2014, as set out in below excerpt.
28.


29. The column on the far right, under “Actual difference in ZAR”, shows (below each amount of the Applicant’s which I have crossed out) – the calculation I came to for that period, based on the amended salary notch. The Applicant’s amounts were based on 6 years’ recognition, whereas my amounts are based on 4 years’ recognition – that is the only difference between my calculations, and those of the Applicant.
30. R2,334.00 + R4,986.00 + R5,337.00 = R12,657.00 outstanding.

31. Seeing as my calculation comes to less than the Respondent’s mysteriously-derived amount of R15,069.00 I gladly concede the benefit to the parties in favour of the Applicant, and award the Respondent’s amount since it is higher than my own.

32. Furthermore, the Applicant also did not submit its calculations fully up until current – rather, it submitted calculations only until 31 January 2023 amounting to R156,021.75, with a statement that further similar calculation would bring the calculation-total to R173,964.25 – and in terms of even-handed prejudice to both parties the same, such lack of full calculated substantiation limits my award to the Applicant to include only up until 31 January 2023. If the Applicant wishes to claim from 1 February 2023 onwards – as well as the bonus-calculation mentioned in the passing submitted also only as a mention, without calculations – he may refer such under a separate dispute.

AWARD
33. The Respondent, the Department of Education of the Eastern Cape, failed to pay the Applicant, Mr Herbert H.G. Gobey, in terms of increased salaries he was entitled to for the period from 4 October 2010 to 31 January 2023 – this in breach of chapter B.8.4.3.1 of the PAM collective agreement.
34. The Department of Education of the Eastern Cape must pay Mr Herbert H.G. Gobey with persal number 55319866 the amount of R15,069.00 in arrears salaries in terms of PAM B.8.4.3.1 by no later than 30 October 2023.


Commissioner Sally-Jean Pabst
ELRC Arbitrator