PSES885-17/18 MP

Panelist/s: Kuvonakala Pretty Chavalala
Case No.: PSES885-17/18 MP
Date of Award: 23 May 2024

In the ARBITRATION between:

Isaac Mabuza
(Union / Applicant)

and

Department of Education (Mpumalanga)
(Respondent)


DETAILS OF HEARING AND REPRESENTATION

[1] This is the arbitration award between Isaac Mabuza (hereinafter referred to as “the Applicant”) and Department of Education Mpumalanga (hereinafter referred to as “the Respondent”). The case sat before me on several days and it was finalised on 03 May 2024.
[2] The hearing concerned an alleged unilateral changes to terms and conditions of Employment In terms of Rule 5.4 of the ELRC Constitution, Part C (hereinafter referred to as ELRC Rules), the dispute concerning Unilateral Changes to terms and conditions of employment may be arbitrated by the ELRC if not resolved at conciliation.

[3] The applicant was represented by Mr Omar, his legal representative. The respondent was represented by Ms Majola.
[4] The respondent submitted a bundle which was marked Bundle R. The applicant submitted a bundle which was marked Annexure A
[5] The parties had to submit their closing arguments by the 03 May 2024 and they both did so. I considered the arguments in reaching my decision.
[6] The hearing was held in English, Mr Luthuli assisting in isiZulu interpretation and it was digitally and manually recorded.

ISSUES TO BE DECIDED

[7] I am required to decide whether the respondent unilaterality changed terms and conditions of the applicant’s employment and if so, the appropriate remedy.

BACKGROUND TO THE ISSUES TO BE DECIDED

[8] The applicant is in the employment of the respondent as a PL1 educator. He alleged that his salary was unilaterally changed by the respondent in September 2014. He referred a dispute of Unilateral change to terms and Conditions of employment on 13 March 2018 with a condonation application.
[9] On 18 April 2018, Commissioner Robertson ruled that the late referral of the applicants dispute is not condoned in respect of the period from August 2014 to 10 December 2017. Further, that the applicant’s dispute as calculated from 11 December 2017 could be set down for conciliation.
[10] The case sat for a conciliation on 22 October 2018. The applicant referred the dispute to arbitration on 19 January 2023 with a condonation application which was granted by Commissioner Robertson. The case then sat before me for arbitration.
[11] I am bound by these jurisdictional rulings as stated in the case of Sondolo IT (Pty) Ltd v Gordon Howes and others case number JR321706.
[12] The following were common cause issues: -
a) The applicant’s employment history is as follows:-
• 1 January 1985 (PL1 Educator)
• 2005-Principal position- PL5 (Notch Code 195- R558 247)
• 31-12-2013- Applicant resigned
• 01 February 2014- Applicant reappointed on fixed term for 12 months as a PL1 educator (notch code 168-R419085)
• April 2014- Notch Adjustment – R450096.00
• 01 September 2014- Notch change to code 119- R277677
• 31 December 2014 -contract lapsed.
• 1 January 2015- reemployed on fixed term contract.
• 1 November 2015- permanent employment (notch Code 119- R297114.00).

b) The applicant is still permanently employed as a PL1 educator on code 119 stationed at Pine Ridge Combined school.

c) The salary of the applicant was reduced when he was moved from Code 168 to Code 119.

[13] The following were issues in dispute:
a) Reduction of salary was without explanation.
b) HR- District informed the applicant of the change in salary.
c) The initial salary was not a term of employment but an error.
d) The correction was in line with the terms and conditions of employment.
e) That the applicant was overpaid; and whether he was informed that he was overpaid.
f) That the applicant is still underpaid.
[14] The applicant sought to be taken back to the notch he was initially appointed at, Code 168.

SUMMARY OF EVIDENCE AND ARGUMENT
Respondent’s case

The respondent’s only witness, Mr Seepe testified under oath and the brief relevant summary of his evidence is as follows:,

[15] He is an HR Personnel officer at Nkangala District and his duties include verifying and implementing new appointments. Personnel Administrative measures (PAM) is one of the vital documents that he uses in order to perform his duties.
[16] The history that he got about the applicant was that the applicant was a principal, he resigned and re-joined the department as an educator. According to PAM, in consideration of the applicant’s experience, he was supposed to have been appointed on the last notch of PL1 which would be Notch code 119. The applicant was however erroneously re-appointed on Notch Code 168 when he returned to the Department. This was corrected on 10 September 2014 and it had the effect of reducing the applicant’s salary. He was not at the department when the correction was made but the believes the applicant was informed of the correction. The salary scales can be seen on page 20 of Bundle R and code 119 in 2014 was indeed R277677.
[17] Page 19 of Bundle R which is an extract from the PAM Document and Employment of Educators Act provides for determination of salaries in Clause 4 as follows:
4.4 Educators who a re-appointed after a break in service
Note: The applicable salary position to which an educator should be appointed after a break in service, is always determined in terms of the salary position which he/she occupied before the break in service. …
(a) Educators who are re-appointed at the same post level
…
(b) Educators who are reappointed at lower post levels
An educator who is reappointed to a lower post level than the one he or she occupied before the break in service, is appointed to the highest applicable salary position which is lower than the salary position [or equivalent salary position] occupied by the educator before the break in service by at least the number of post levels that the new post level is lower than the post level occupied before the break in service : provided that if the educator has improved her or his REQV during the break in service…

[18] The respondent issued a guideline in a form of a Memo, HR staffing Memo No. 4 of 2013 on the subject of determination of salary notches when effecting a re-appointment after a break in service (Memo). This was to simplify the PAM provision. The Memo appears on page 22 of Bundle R and gives an example which the same as the applicant’s set of facts and it reads as follows:
Example 2: the educator was a principal (post level 4) before the break in service and is reappointed as a post level one teacher, the maximum note for a post level one teacher is notch code 119. The educator was on notch code 175 before the break in service. The educator shall be granted the maximum notch applicable to the post level (post level 1- salary level 8) which is notch code 119, which is lower than before the break in service and is more than three no cheese lower (one salary notch lower for every post level lower difference is 7 notches and the educator can only be appointed at the maximum notch code applicable) therefore note code 119.

[19] The respondent is entitled to correct errors and this is provided for in clause 13(1) of the Employment of Educators which appears on page 17 of Bundle R and reads as follows:
If an incorrect salary on appointment…was awarded or granted to an educator, the employer shall correct the educator’s salary with effect from the date on which the incorrect salary commenced, notwithstanding the fact that the educator concerned was unaware that an error had been made in the case where the correction amounts to a reduction of his or her salary.
[20] The EDU 1 forms on the Bundles require that the job applicant inputs his notch. On 14 November 2014 when the applicant applied for a renewal of his contract, he filled the notch of R277677 as appears on page 18 of Bundle R to show that he was aware of the corrected notch.

Cross examination
[21] He started on his role in February 2015, he therefore does not have personal knowledge, documentary or any form of proof of the details of communication that happened with the applicant in September 2014 when the change in salary notches was made.
[22] The overpayment was not recovered by the respondent.
[23] The school is not at liberty to discuss with candidates the salaries because salaries are determined by the department at the district. If that was discussed with the applicant, he cannot comment.
[24] He denied that notch Code 168 was the correct salary notch Code for the applicant’s reappointment.

Applicant’s case

The applicant was the only witness and testified under oath and the brief relevant summary of his evidence is as follows:,
[25] He is employed by the respondent as an educator Post Level 1 (PL1). He was initially a principal and he resigned in December 2013 and was reappointed first on a fixed term basis in February 2014. From February 2014, he was being paid a salary of R419085 per Anum until it was reduced to R277677 effective September 2014.

[26] No one from the Department notified him about the change, he only saw on his payslip and bank account that his salary was reduced. When he noticed the reduction, he called the Department and spoke to one lady at the district office. She informed him that his salary was reduced since he was no longer a principal but a PL1 educator.

[27] His own interpretation of the very same provision on PAM on re-appointment after break in service is quite different. His understanding is that the calculation must start first by subtracting his current post level from the one he occupied before a break in service to get the difference (PL4 minus PL1= PL3). Then one must look at the notch before the break in service which was Notch code 195 and subtract the three (3) from it. That puts him on notch code 192 which equals R532134.00 as per page 21 of Bundle R (Educators salary scale May 2011- April 2014). This is the salary he actually should have been reappointed on. He only saw the salary scale on page 21 of R for the first time when the hearing of this case started.

[28] He did indeed fill the EDU 1 forms as they appear on the Bundles and filled the notch of R277677 in November 2014. He was told to fill in the Notch as it appears on his payslip. He was not happy with the reduction of his salary and he approached the ELRC to declare a dispute on 13 March 2018.
[29] The relief he seeks it to be paid to according to the correct Code he qualifies for and to be back-paid from December 2017 as it is stated on the Condonation ruling on page 33 of Bundle A. He wants to be reverted back to the Code 168.

Cross examination
[30] He understands that the difference in remuneration amongst post levels of Educators is because of the fact that the work loads are different. It is correct that a PL1 educator cannot earn more than the Deputy Principal. He stated however that the PL1 educator can earn more than a deputy Principal if they were a principal and had a break in services and got re-appointed.

[31] He got the explanation when he called the department of why his salary was reduced but he was not happy with the explanation.

[32] He is aware that the salaries get determined by the department and not at the school level. He does not agree with Mr Seepe on what the correct salary notch code should have been even though Mr Seepe has expertise on the question of salaries. He relies on the provision 4.4 (b) to determine what his salary was supposed to have been.

[33] The example given on the Memo is similar to his set of facts but the Memo cannot overrule the provisions of the Employment of Educators Act. According to him, the provision clause 4.4 (b) entitles him to be paid only three salary levels down.

[34] It was put to him that code 168 would still be wrong according to his version and a wrong cannot correct a wrong. He stated that he accepts Code 168.


ANALYSIS OF EVIDENCE AND ARGUMENT

[35] In terms of Section 64 (4) of the LRA and clause 5.4 of the ERLC Constitution, an employee can refer the dispute to the bargaining council requiring the employer not to unilaterally implement the change to the terms and conditions of employment, or, if the employer has already implemented the change unilaterally, the referring party may require the employer to restore the terms and conditions of employment that applied before the change.

[36] Terms and conditions of employment are made up of responsibilities, rules, requirements, policies and benefits associated with a job as agreed upon by an employer and employee at the time of hiring. Unilateral changes to terms and conditions refer to a scenario where the employer changes these terms and conditions initially agreed to without any negotiation and agreement.

[37] Most of the facts in this case were common cause. The major issue in dispute became a question of whether the salary notch that was paid to the applicant upon him re-joining the respondent after resignation was indeed a ‘term of the contract’. The respondent’s submission was that this was an error and was not in line with the PAM provisions. The applicant’s submission was that it was indeed a term of the contract and was in line to the PAM provision. Both parties relied on the very same provision of the PAM but proffered different meanings of it.

[38] The respondent’s witness is someone in the HR section and deals with appointments. He further referred to a Memo which was elucidating the provision in the PAM by using an example that is similar to the applicant’s facts. His explanation was clear and was able to show the basis under which the applicant was supposed to have been appointed on notch code 119.

[39] The applicant on the other hand could not show that notch code 168 was correct. It was in fact his evidence that notch code 168 was also incorrect but that he had accepted it. Just this version of the applicant thwarts his submission that his salary was indeed a term of his employment. If the applicant accepts that Notch code 168 was not the correct term of employment, he is then not entitled to ask that he be reverted back to it.

[40] The literal interpretation of the PAM provision not that simple or clear. PAM provides that An educator who is reappointed to a post level than the one he or she occupied before the break in service, is appointed to the highest applicable salary position which is lower than the salary position [or equivalent salary position] occupied by the educator before the break in service by at least the number of post levels that the new post level is lower than the post level occupied before the break in service.

[41] One would need to harmonise the text and its purpose to understand this provision. The Memo issued by the department did just that and there is no reason for me not to accept that explanation. The example is very similar to the applicant’s set of facts. If the applicant’s interpretation was to be accepted. It would clearly create and absurdity. It would in fact create an untenable situation wherein PL4 educators resign, return as PL1 educators to continue to earn in the same salary band of a PL4 while performing the work of a PL1 educator. This could not have been the intention of the policies.

[42] It is against this background that I find that the salary paid on notch code 168 was not a term of employment but an error. I accept that the correct notch code is 119 as shown through the testimony of Mr. Seepe.

[43] One of the major elements of contracts is that there must be consensus between the parties. This means that there must be a “meeting of minds” regarding the intended obligation and performance, the intention to be legally bound, and the parties must be aware of their agreement.

[44] 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), the court held ‘A mistake will be treated as a iustus error if the other party ought, as a reasonable person, to have known of it and where the offer made is snapped up when the person purporting to accept the offer knows or ought to know that there was no intention to make the offer as it appears from the wording of the contract.

Para 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.

[45] It was the applicant’s testimony that when he called the department in September 2014 after the reduction was made, he was informed of the reasons why his salary was reduced. The respondent could not proffer any proof that there had been any engagements with the applicant prior the reduction.

[46] The respondent argued that it was entitled to correct the error and relied on the strength of clause 13(1) of the Employment of Educators which reads as follows:
If an incorrect salary on appointment…was awarded or granted to an educator, the employer shall correct the educator’s salary with effect from the date on which the incorrect salary commenced, notwithstanding the fact that the educator concerned was unaware that an error had been made in the case where the correction amounts to a reduction of his or her salary.

[47] Having found that the notch Code 168 was an error and not a term of employment, the assessment on the case of unilateral changes to terms and conditions of employment ends there. The legislator on section 64 and Clause 5.4 of the ELRC guards against a situation where a term of employment is changed unilaterality and not a situation where errors are corrected. There may well be other processes in other for a person to challenge the making of the error and the process followed for correcting it but as far as this dispute referred goes, there is no remedy.

AWARD
[48] The salary notch code 168 was not a term of employment but an error.

[49] The respondent did not change a term and condition of employment unilaterally but corrected an error.

[50] The case against the respondent is dismissed

Signed and dated at Pretoria on this 23rd day of May 2024

Kuvonakala Chavalala
ELRC Panellist