ELRC560-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN EAST LONDON


Case No ELRC560-23/24EC


In the matter between

Mdlambuzi N & 6 Others Applicants

and

Department of Higher Education
and Training – Ingwe TVET College Respondent


ARBITRATOR: Andre Swart

HEARD: 23 January 2024

CLOSING ARGUMENTS: N/A

DATE OF AWARD: 2 February 2024



SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice relating to benefits – failure of Respondent to adjust salary notches as contemplated by Clause B10 of Personal Administrative Measures upon obtaining qualification;


ARBITRATION AWARD


PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This matter was heard virtually using the Zoom platform on 23 January 2024, present were the Applicants’ being Mdlambuzi NC, Ndabeni V, Ngoma-Veco NA, Gusha V, Ngqayimbana TA, Mtebele S was not in attendance due to ill health and Hlambelo B was not in attendance due to having passed away during January 2024. The Applicants’ were represented by Mr. Mxolisi Sifo an official of SADTU, the Respondent was represented by Mr. Thozamile Mabovula from its Labour Relations directorate.

THE ISSUE IN DISPUTE

2. I am required to determine whether the Respondent has committed an unfair labour practice when it failed to adjust the Applicants’ salary levels to REQV 14 levels upon them obtaining the necessary qualifications.

THE BACKGROUND TO THE DISPUTE

3. The Applicants’ are all employed as lecturers at the Respondent’s Ingwe College, they were all employed in REQV13 level notches and then obtained the necessary qualifications to be adjusted to REQV 14 level notches.

4. In the present matter there is no factual dispute, the Respondent agrees that the Applicants’ all qualify for the adjustment to their salary levels as they all have obtained the required qualifications, it is further common cause that the Applicants’ are owed the adjustments and payment for such adjustments in accordance with provisions of the Personnel Administrative Measures (PAM).

5. PAM at clause B10 provides as follows:

“B.10 RECOGNITION FOR IMPROVEMENT IN REQV
B.10.1 General Measures:

B.10.1.1 An educator who qualifies for a salary adjustment, must submit proof of such a qualification to his/her employer within 12 months of obtaining it in order to receive the salary adjustment with effect from the date on which it was obtained. Should an educator fail to submit the qualification within 12 months, he/she will only qualify for such salary adjustment with effect from the date on which the qualification was submitted. (Government Gazette No 24948, dated 21 February 2003)

B.10.1.2 Qualifications will be recognized as from the date on which the educator meets all the requirements for obtaining the qualifications concerned, according to the written statement by the examining body concerned. In the absence of such a statement, a qualification will be recognized as from the date the certificate was issued.

B.10.1.3 Recognition of an improvement of an educator’s REQV can either be an adjustment to a higher salary notch or the payment of a once off cash bonus.

B.10.1.4 Cash awards payable to educators in terms of these measures, are calculated in all cases as 10% of notch code 85. In respect of an educator who improves his/her qualifications while in service, the value of this salary notch as on the date on which the qualification was obtained, will apply. In respect of educators who enter the service and who qualify for a cash bonus due to a qualification that is higher than REQV 13, the value of this salary notch, as on the date on which the person qualifies for the cash award, will apply.

B.10.1.4 The payment of such cash amounts came into effect on 1 July 1996, and may not be granted to an educator more than once for the same REQV improvement. Note: The 12-month limitation referred to in paragraph B.10.1.1 is not applicable when an educator qualifies for a cash bonus. “

6. Of specific application in the present matter is B10.2.4 and 10.2.5 which reads:

“ B.10.2.4 Educators with REQV 13 If a serving educator with REQV 13 (or lower) on post level 1 or a principal receiving an allowance for performing the duties of principal improves his/her education qualifications, which has the effect that his/her REQV improves to REQV 14, such an educator’s salary will adjust to notch code 85. If the educator is already on notch code 85 or beyond, he/she will receive a cash bonus equal to 10% of notch code 85.

B.10.2.5 Educators on post level 1 with REQV 14 or higher and educators on post levels 2 to 5 with REQV 13 or higher. If a serving educator on post level 1 with REQV 14 or higher or an educator on post levels 2 to 5 with REQV 13 or higher improves his/her REQV such educators will receive a cash bonus equal to 10% of notch code 85. “

7. The Applicant had obtained the following qualification qualifying them for REQV 14, Mdlambuzi obtained an advanced certificate in education in December 2019 and submitted such to the Respondent in January 2020, Ndabeni obtained a postgraduate diploma in education in December 2021 and submitted it to the Respondent in January 2022, Ngoma-Veco obtained a postgraduate diploma in education in March 2020 and submitted it to the Respondent in November 2020, Gusha obtained a postgraduate diploma in education in December 2019 and submitted it to the Respondent in January 2020, Ngqayimbana obtained a postgraduate diploma in education in December 2020 and submitted it in October 2021, Mtebele S obtained a postgraduate diploma in education in December 2019 and submitted it to the Respondent in January 2020.

8. The current annual salaries of the Applicants’ are Mdlambuzi – R263823.00, Ndabeni – R251808.00, Ngoma-Veco – R251808.00, Gusha R287048.00, Ngqayimbana – R244884.00, Mtebele – R332490.00.

9. As relief the Applicants seeks their salaries to be adjusted and cash bonuses.

MATTERS INCIDENTAL TO THE ARBITRATION

10. As indicated earlier Mr. Hlambelo had passed away prior to the determination of this dispute, no correspondence was received from the executor of his estate indicating that the estate wished to pursue this matter and for this reason he is excluded from this award.

11. As can be noted from the dates provided on which the qualifications were obtained and submitted to the Respondent, it on face value appeared that there was a question of late filing of the present dispute, and this was canvassed with the parties at the commencement of proceedings.

12. The Applicants’ submitted that there had been attempts to resolve the matter internally, but the breaking point arrived in August 2023 when other employees had been adjusted but they had been overlooked.

13. It was the submission of the Respondent that the Department has a significant backlog when it comes to the adjustment of salaries and that the Respondent does not dispute the Applicants’ entitlement to adjustment of salaries.

14. Having considered the provisions of PAM as they relate to the present dispute and the absence of compliance timeframes in the relevant clauses, I find that it is not unreasonable to accept that when considering the acknowledgement of entitlement that the unfair labour practice would come into existence on the later date of August 2023, and I find that the dispute has not been referred to out of time.

15. Even if I am incorrect in the above assessment, the LRA at Section 191 provides that condonation may be granted on good cause shown and that when one considers that the Respondent does not dispute the entitlement of the Applicants’, it would be unfair to not condone any lateness and bring the matter to finality.

SURVEY OF EVIDENCE AND ARGUMENT

16. I have considered all the evidence and argument, but because the Labour Relations Act no. 66 of 1995 (LRA) requires brief reasons (Section 138(7)), I have only referred to the evidence and argument necessary to substantiate my findings and award.

17. What follows is a summary of the submission made and does not constitute a verbatim record.

18. All witnesses testified under oath.


The Applicant’s Submission’s

19. Mr. Thobunedo Ndzabe (Ndzabe), a shopsteward in the workplace submitted that all the Applicants qualified to be adjusted from REQV 13 to REQV 14, and that they were further entitled to the payment of the adjustment and cash bonuses. He was not cross-examined.

20. Mr. Thulanani Ngqayimbana (Ngqayimbana), an Applicant submitted that he qualified for the notch adjustment to REQV 14, he commenced employment in October 2021. He was not cross-examined.

21. Ms. Vuyiswa Gusha (Gusha), an Applicant submitted that she had submitted proof of her qualification improvement in 2020 but has yet to be adjusted to REQV 14, she commenced employment in 2010. She was not cross-examined.

22. Ms. Pozisa Ndabeni (Ndabeni), an Applicant submitted that she had submitted proof of her improved qualification in January 2022 but was yet to be adjusted to REQV 14, she commenced employment in 2018. She was not cross-examined.

23. Ms. Noxolo Ngoma-Veco, an Applicant submitted that she had submitted proof of her improved qualification which she obtained in 2019 but was not adjusted to REQV 14, she commenced employment in 2018.

24. Mrs. Nobuncoko Mdlambuzi (Mdlambuzi), an Applicant submitted that she had obtained an improved qualification and submitted such to the Respondent in November 2020 but was not adjusted to REQV 14.

The Respondent’s Submission's

25. The Respondent elected not to call any witnesses.


ANALYSIS OF THE EVIDENCE AND ARGUMENT

26. The onus in terms of unfair labour practice disputes such as those contemplated by Section 186(1) of the LRA rest with the Applicants.

27. In the present dispute the Applicants’ submitted that they had obtained qualifications which would entitle them to a notch adjustment contemplated in Clause B10 of PAM, this is not dispute by the Respondent, it is also not disputed by the Respondent that the Applicants’ would be entitled to payment of the difference between their current notch and that of the REQV 14 notch to which they should be adjusted.

28. None of the evidence presented by the Applicants’ in these proceedings was challenged or refuted by the Respondent, in addition I could find no reason as to why the evidence presented by the Applicants’ in this arbitration should not be accepted in totality.

29. This now brings me to what the Applicants’ would be entitled to in these proceedings, during the arbitration parties did not have in their possession any form of calculation or submissions as to what should be paid to the Applicants. I directed parties to furnish me with such information prior to the rendering of this award, the Respondent submitted the current salary levels of the Applicants and what it regards the REQV 14 level to be this being Salary Notch 164.

30. The Applicants submitted a similar breakdown but spanning the periods between the qualification being obtained and present, with Salary notches ranging from 166 to 213, included was bonus calculations and totals, it however does not show how or where these calculations arrive from.

31. As is contained earlier in this award, PAM provides that when a lecturer such as the Applicants’ improve their qualification from REQV 13 levels to REQV 14 levels they would be entitled to a salary adjustment to such REQV 14 level, and such adjustment is applicable from the date the qualification is obtained if proof of obtaining such qualification is submitted within 12 months.

32. I must therefore in determining this matter consider the provision of the following clause of PAM “B.10.2.4 Educators with REQV 13 If a serving educator with REQV 13 (or lower) on post level 1 or a principal receiving an allowance for performing the duties of principal improves his/her education qualifications, which has the effect that his/her REQV improves to REQV 14, such an educator’s salary will adjust to notch code 85. If the educator is already on notch code 85 or beyond, he/she will receive a cash bonus equal to 10% of notch code 85.”, however a change must be read into this clause as there was a realignment of salary notches effective from 1 July 2019 as is found in Annexure B.13 of PAM, this realigned notch code 85 to notch code 164.

33. When considering the above it is therefore clear that all the Applicants who are remunerated below notch 164 must be adjusted to such notch and that this adjustment is applicable to from the date the qualification is obtained.

34. The Applicants’ who are remunerated above this notch code would receive a cash bonus equivalent to 10% of notch code 164.

35. Based on the information supplied to me by the Applicants’ they were remunerated as follows:

a. Mdalmbuzi – Notch 121 – remuneration for 2019 to 2022 was R229263.00, for 2022 it was R236142.00 and for 2023 it was R260160.00.
b. Gusha – Notch 142 – remuneration for 2019 to 2022 was R254532.00, for 2022 it was R262167.00, for 2023 it was R287043.00.
c. Ndabeni – Notch 114 – remuneration in 2021 was 221415.00, for 2022 it was R228057.00 and for 2023 it was R251808.00.
d. Ngoma-Veco – Notch 114 – remuneration for 2019 to 2022 was R221415.00, for 2022 it was R228057.00 and for 2023 it was R251808.00.
e. Ngqayimbana – Notch 109 – remuneration for 2021 was R214908.00, for 2022 it was R221355.00 and for 2023 it was R244884.00
f. Mtebele – the Applicants’ provided that the notch of Mtebele was 173, the Respondent submitted that his current salary is R332490.00.

36. The remuneration level of notch 164 from July 2019 to June 2021 was R280038.00, from July 2021 to March 2022 it was R284238, from April 2022 to March 2023 it was R292764 and from 1 April 2023 to present it is R318648.00.

37. Mdlambuzi obtained the qualification in December 2019, Ndabeni in December 2021, Ngoma-Veco in March 2020, Gusha in December 2019, Mtebele in December 2019, Ngqayimbana obtained it in December 2020 but only commenced employment in October 2021.

38. It is my finding that Mdalmbuzi, Gusha, Ndabeni, Ngoma-Veco and Ngqayimbana are entitled to have their salary notch increased effective from the date they obtained their qualification, however in the case of Ngqayimbana the notch increase is only effective from the date of employment.

39. In the case of Mtebele from the submissions before me is that the notch upon which he is employed is above that of notch 164 and he would therefore be entitled to the 10% cash bonus as contemplated in PAM, however this unlike what is contained in the Applicants’ submission is not an annual bonus but a once off event on the plain reading of Clause B10.2.4.

40. Mtebele obtained the qualification in 2019 and is therefore entitled to a cash bonus of R28003.80 (Notch 164 in 2019: R280038.00 x 10%).

41. Mdlambuzi would be entitled to R223056.00 (Notch 164: R280038 / 12 x 18 months (January 2020 to June 2021) R420057.00 – R343894.00 (R229263 / 12 x 18 months (January 2020 to June 2021) = R76163.00 + R41531.00 (R213478 (R284238 / 12 * 9 months (July 2021 to March 2022) - R171947 (R229263 / 12 x 9 months (July 2021 to March 2022)) + R56622.00 (R292764.00 – R236142.00 (April 2022 to March 2023) + R48740.00 (R265540.00 (R318648.00 / 12 * 10 (April 2023 to January 2024) – (R216800.00 (R260160.00 / 12 * 10 (April 2023 to January 2024).

42. Gusha would be entitled to R117773.00 (Notch 164: R280038 / 12 x 18 months (January 2020 to June 2021) R420057.00 – R381798.00 (R254532.00 / 12 x 18 months (January 2020 to June 2021) = R38259.00 + R22579.00 (R213478 (R284238 / 12 * 9 months (July 2021 to March 2022) – R190899.00 (R254532.00 / 12 x 9 months (July 2021 to March 2022)) + R30597 (R292764.00 – R262167.00 (April 2022 to March 2023) + R26338.00 (R265540.00 (R318648.00 / 12 * 10 (April 2023 to January 2024) – (R239202.00 (R287043.00/ 12 * 10 (April 2023 to January 2024).

43. Ngoma-Veco would be entitled to R236214.00 (Notch 164: R280038 / 12 x 14 months (April 2020 to June 2021) 326711 – R258321 (R221415.00/ 12 x 14 months (April 2020 to June 2021) = R68390.00 + R47417.00 (R213478 (R284238 / 12 * 9 months (July 2021 to March 2022) – R166061 (R221415.00 / 12 x 9 months (July 2021 to March 2022)) + R64707.00 (R292764.00 – R228057.00 (April 2022 to March 2023) + R55700.00 (R265540.00 (R318648.00 / 12 * 10 (April 2023 to January 2024) – (R209840.00 (R251808.00/ 12 * 10 (April 2023 to January 2024).

44. Ndabeni would be entitled to R136113.00 (R71059.00 (Notch 164: R284238.00 / 12 x 3 months (January 2022 to March 2022) – R55353.00 (R221415.00 / 12 x 3 months (January 2022 to March 2022)) = R15706.00 + R64707.00 (R292764.00 – R228057.00 (April 2022 to March 2023) + R55700.00 (R265540.00 (R318648.00 / 12 x 10 (April 2023 to January 2024) – (R209840.00 (R251808.00 / 12 x 10 (April 2023 to January 2024).

45. Ngqayimbana would be entitled to R167578.00 (R142119.00 (Notch 164: R284238.00 / 12 x 6 months (October 2021 to March 2022) – R107454.00 (R214908 / 12 x 6 months (October 2021 to March 2022)) = R34665.00 + R71409.00 (R292764.00 – R221355.00 (April 2022 to March 2023) + R61504.00 (R265540.00 (R318648.00 / 12 x 10 (April 2023 to January 2024) – (R204036.00 (R244844.00 / 12 x 10 (April 2023 to January 2024).

46. In the premises I make the following award.

AWARD

47. The Applicants have established that the Respondent had committed an unfair labour practice as contemplated by Section 186(2)(a) of LRA when if failed to implement the provisions of Clause B10 of PAM.

48. The Respondent is ordered to adjust the salary notch of Mdalmbuzi, Gusha, Ndabeni, Ngoma-Veco and Ngqayimbana to notch 164 effective from the date they obtained their qualifications, however in the case of Ngqayimbana the notch increase is only effective from the date of employment.

49. The Respondent is ordered to pay to Mtebele an amount of R28003.80 by no later than 29 February 2024, this being the cash bonus he is entitled to in terms of Clause B10.2.4 of PAM.

50. The Respondent is ordered to pay to Mdlambuzi an amount of R223056.00, pay to Gusha an amount of R117773.00, pay to Ngoma-Veco an amount of R236214.00, pay to Ndabeni an amount of R136113.00, and pay to Ngqayimbana an amount of R167578.00, these payments being backpay for the notch adjustment as calculated in paragraphs 41 to 45 above, payment to be effected no later than 29 February 2024.


Panellist: Andre Swart