ELRC473-23/24EC

Case Number: ELRC473-23/24 EC
Panelists: Malusi Mbuli
Date of Award: 20-02-2024

In the ARBITRATION between

SADTU obo ZOLANI MJANA
(Applicant)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act No 66 of 1995 (“the Act”). It was set down for an arbitration hearing at the Engcobo District Office in Engcobo at 09:00 on the 29th & 30th of January 2024.

2. The applicant, Mr. Zolani Mjana attended the hearing and was represented by Mr. Siyabonga Gashi a site steward of the applicant’s trade union SADTU.

3. The respondent, Department of Education – Eastern Cape, also attended the hearing and was represented by Mr. Bonisile Nkuhlu an official of the respondent.

4. The matter proceeded on the 29th & 30th of January 2024 and was finalized on the last day being the 30th of January 2024.

ISSUE TO BE DECIDED

5. I am required to determine whether or not the respondent has committed an unfair labour practice as envisaged by section 186 (2) (a of the Labour Relations Act 66 of 1995 as amended by demoting the applicant from REQV 13 to REQV 10 and if so, I must determine the appropriate remedy.

COMMON CAUSE FACTS

6. The applicant was first employed by the respondent Department of Education – Eastern Cape at REQV 13 at Middle Zolo Senior Secondary School in Nqamakwe in April 2006 after he was evaluated by the Department of Education – Eastern Cape.

7. He is teaching Mathematics and Physical Science and his remuneration was reduced in 2010 to REQV 10 without any reason communicated to him at that point. His persal number is 54261562, with ID Number: 62001025951086.

8. When he was employed, his qualification was Higher Diploma in Adult Basic Education and Training (HDE ABET) from the University of South Africa. Another evaluation of his qualification was done in 2007 by the National Department of Education, Educator Qualifications and Programme Unit.

9. The results of this evaluation stated that Mr. Z. Mjana is qualified as REQV 13, professionally qualified and only for appointment at an ABET center. He was appointed as a teacher at a school as an emergency pleasure.

10. After this evaluation, REQV 10 was recommended, Mr. Z. Mjana did not get fringe benefits like house subsidy, medical aid, GEPF service because he is a temporal educator, and instead he is supposed to receive 37% service benefits. The applicants dispute as stated above is one of a demotion in terms of section 186 (2) (a) of the Act.

11. The applicants salary or remuneration the dropped from that of REQV 13 to REQV 10 as a consequence of the decision by the respondent to take him to REQV 10 whilst he was occupying the same post and doing the same job.

ISSUES THAT ARE IN DISPUTE

12. Whether the reduction in the applicant’s salary amounted to an unfair labour practice relating to demotion.

13. If so whether the applicant is entitled to any relief and if so the appropriate relief.

SURVEY OF EVIDENCE

Submissions by applicant

14. The parties delivered their opening statements on record and after those statements were delivered the applicants representative called the applicant Mr. Z. Mjana as the first and the last witness.

15. He testified that he is employed by the Department of Education – Eastern Cape as an educator and his qualifications are a Senior Certificate, Higher Diploma in Adult Basic Education & Training and Advanced Certificate in Education (ACE) in educational leadership which he obtained in 2010.

16. He stated that he applied for an advertised position, interviewed and was employed by the Department of Education – Eastern Cape on the 10 April 2006 as a temporal educator. He signed an assumption of duty at Middle Zolo Senior Secondary School at REQV 12 educator and was later moved to REQV 13 after 2007 evaluation of his qualification.

17. He stated that early in 2009 he noticed that his monthly salary had decreased and he was not satisfied and he laid a complaint with the District office and later to the Provincial Department of Education.

18. He averred that he did not receive a favorable response from both the District Office and Provincial Department of Education and he decided to refer his complaint together with his qualification to (SAQA) South African Qualification Authority in the National Department of Education in Pretoria.

19. He testified that he received a response stating that the ABET qualifications are only recognized for appointment at REQV 13 at the ABET center only and was further informed that should he be appointed as a teacher at a school as an emergency measure, REQV 10 was recommended.

20. He indicated that he does not agree with the results of the evaluation of his qualifications by the National Department of Education and believes that he is supposed to be paid at REQV 13 where he currently employed as a temporary educator.

21. He further stated that he submitted an Advanced Certificate in Education (ACE) in Educational Leadership which qualifies him to be placed at REQV 13 in 2010. He also stated that he did not receive a 37% service bonus that he is entitled to as a temporal educator. He testified that there is policy or prescript produced by the respondent to state that with his qualification he cannot teach at the school in the main stream or that his qualification only allow him to teach at ABET centers only.

22. He averred that when he was employed at Middle Zolo Senior Secondary School the employer knew that he had Higher Diploma in Adult Basic Education and Training and reiterated that his qualification is at REQV 13 and can teach in any school.

23. He stated that the Department has treated him unfairly when he has performed his duties diligently and had has produced good results and that he felt that he was demoted by the respondent. He further stated that he has a SACE certificate and he was not even given an opportunity to go and teach at ABET center.

Submissions by the respondent

24. The respondent did not lead any evidence on this matter but opted to present closing arguments in support of their claim that the applicant was not demoted.

ANALYSIS OF EVIDENCE AND ARGUMENT

25. Section 185 of the Act provides:-
‘Every employee has the right not to be:
(a) Subjected to an Unfair Labour Practice.

26. The applicant dispute relates to a reduction of his salary by the employer from REQV 13 to REQV 10 after the Department of Education – Eastern Cape decided that the applicant must be place at REQV 10 when he was employed at REQV 13.

27. It is not in dispute that the applicant’s salary was reduced or in simple terms moved from a higher position to a lower position, i.e.REQV 13 to REQV 10. The employer’s argument is that the applicant’s qualifications entitle him to teach at ABET centers and not in the main stream schooling system. It is further not disputed that the very same Department of Education – Eastern Cape is the one that appointed the applicant at REQV 13 in 2006.

28. To this effect the respondent produced letters from the National Department of Education which stated that the applicant’s qualifications do not allow him to teach in the main stream schooling system. The respondent did not produce any policy or legislation which they rely on to support the proposition the applicants qualifications do not allow him to teach in the main stream schooling system and that with his qualification he can only teach at ABET centers.

29. This however does not mean that the applicant’s reduction or correction of his salary was unfair but that the policies applicable to his situation have to be applied. The applicant did not have the qualifications to be appointed otherwise than as a temporary measure in basic education. I.e. excluding ABET.

30. The Department made an error in paying him at a higher salary level when he was entitled to a lesser salary given his qualifications and the correction of that error does not amount to unfairness or a demotion as it would be in terms of legislative prescript and regulations and accordingly would not constitute a demotion, but a reduction or correction of his salary based on his qualifications in the Basic Education environment, not ABET.

31. Mr. Mjana was holding a higher Diploma in Adult Basic Education and Training when he was first employed as a temporary Educator in April 2006, and did not have an Advanced Certificate in Education (ACE) in Education Leadership at the time of his first assumption of duty.

32. The respondent argues that Mr. Mjana has always been on contract as a temporary Educator on annual basis and he was temporary Educator in all the letters to the Department of Education. The issue here is not about the status of employment of the applicant i.e. temporal or permanent status but whether it was fair to reduce the salary of the applicant from REQV 13 or REQV 10.

33. In terms of Chapter B 3.2.1 of the PAM document, an educator is required to have a 3 year recognized qualification which includes professional teacher education. E.g. Post Graduate Certificate in Education (PGCED). It is further not disputed that Mr. Mjana was appointed as a teacher at a school, as an emergency measure, REQV 13 first. This argument that he cannot teach with the qualification he had at the main stream schools came later and led to the reduction of his salary.

34. It is also not disputed that Mr. Mjana holds SACE certificate but the respondent argue that Mr. Mjana did not have a teaching qualification at Basic Education environment and as such is placed at REQV 10. The applicant cannot be placed through this dispute at REQV 13 or 14 as this will amount to appointment of promotion of the applicant. He will have to apply for the post.

35. The respondent argues further that Mr. Mjana’s case is without merit and therefore must not be entertained because his case is not based on facts and Government Policy but on his wishes. As indicated above the applicant did not a teaching qualification at the Basic Education environment when he was appointed and the Department was within its rights to correct the erroneous appointment made.

36. The respondent also stated that the current definition of a qualified teacher according to the “Employment of Educator Act No 76 of 1998”, is that in order to qualify for appointment as an Educator, a person must have at least a recognized three-year qualification (REQV 13) which must include appropriate training as a teacher. Mr. Mjana has testified that at the time of his appointment he held a Higher Diploma in Adult Basic Education but was appointed at REQV 13.

37. The respondent stated that the minimum qualification requirement for teaching is stipulated in the policy document criteria for the evaluation and recognition of qualifications for employment in Education of 22 September 2000.

38. This is therefore not a demotion but reduction or correction of salary and accordingly the applicant is not entitled to a relief sought under section 186 (2) (a) of the Act (demotion).

39. In the circumstances I therefore make the following award.

AWARD

40. The respondent Department of Education – Eastern Cape did not commit an unfair labour practice by reducing or correcting the applicant’s salary from REQV 13 to REQV 10.

41. The applicant’s application is dismissed.

42. I make no order as to costs at this stage.


Signature:

Commissioner: Malusi Mbuli