ELRC1025-22/23GP

Case Number: ELRC1025-22/23GP
Commissioner: Vusi Moyo
Date of Award: 30 May 2024

In the ARBITRATION between

Busisiwe Irene Magabane APPLICANT

And

Department of Education: Gauteng RESPONDENT

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration award is rendered pursuant to an arbitration process held virtually under the auspices of the ELRC over a few days culminating on the 16th of May 2024.

2. The Applicant was represented by Mr Bongani Ndlovu who was later replaced Mr Simphiwe Mjuleka, both Officials of the National Teachers’ Union (NATU). The Respondent was represented by Ms Valerie Mnisi, an Official of the Department of Education in Gauteng. These proceedings were conducted in English. Submissions were both digitally and manually recorded.

ISSUE TO BE DECIDED

3. In terms of the signed pre-arb minute: “The Applicant challenges the department and alleges that she was on REQV 13 when she was appointed, however, the Respondent is disputing that and submitted she was on REQV 14.”

RELIEF SOUGHT

4. The Applicant sought payment of outstanding benefits and notch adjustments.

BACKGROUND TO THE ISSUE

5. The Applicant is an Educator based in Gauteng Province. The Respondent is the Department of Education in Gauteng Province. Bundles of documents were exchanged by the parties. The authenticity and veracity of these documents was not disputed.

SURVEY OF EVIDENCE AND ARGUMENT

6. As noted above in paragraph 2, these proceedings were digitally recorded, what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration; and it is by no means a comprehensive minute of what transpired in the course of these proceedings. Section 138(7)(a) of the LRA stipulates that within 14 days of conclusion of the arbitration proceedings the Commissioner must issue an arbitration award with brief reasons. What follows underneath accordingly serves as my brief reasons:

The Respondent’s Case:

7. The sole witness for the Respondent’s case was Mr Serasengwe Phillip Merafe.

8. Mr Merafe is the Chief Personnel Officer in the District. He testified under oath that the Applicant “was appointed on salary level 7 from 11 February 1998 as an REQV 14 unprofessionally qualified Educator” in terms of a memo written by the District Director on 22 September 2022. A Persal printout was attached to this effect. Mr Merafe made a distinction that REQV 13 is salary level 5/6 whereas REQV 14 is salary level 7.

9. A copy of PAM (Personnel Administration Measurement) was submitted. Clause B.10.2.5 was quoted to confirm the entitlement to a bonus for Educators that improve their REQV level. Confirmation of the bonus paid to the Applicant on 27 August 2001 was adduced in terms of a Persal printout.

10. In disputing the Applicant’s case, Mr Merafe argued that the Applicant was never on REQV13 nor on salary level 6. For this reason, she is not owed any monies.

11. Under cross examination, Mr Merafe explained that the Applicant was started at salary level 7 as she already had a degree when she was appointed. Salary notch level 7 at the time of appointment in 1998 was R55 449, 00. This is what was paid to the Applicant at the time of appointment. Mr Merafe further disputed that the DHET confirmed her level as REQV13 when she started. He attested that the DHET did not appoint the Applicant but only made the evaluation of her qualifications when, in fact, she was already appointed.

12. The Respondent’s case was closed after re-examination.

The Applicant’s Case:

13. The Applicant testified under oath that she is the lowest paid employee at her school. She disputed the Persal printout in that it does not reflect REQV 14. In terms of the evaluation done by DHET, the Applicant asserted that it indicated that the adjustments made on her salary were wrong and this indicated that the Respondent should have made the corrections. The Applicant testified that she is still on REQV 13 and her salary is still very low.

14. Under cross examination, the Applicant could not remember her salary notch when she was appointed. She could not dispute the contents of the Persal printout. The Applicant further conceded that she received a bonus for her Honours degree in 2001. In contrast, she responded that she never received an increase for her BA degree. The Respondent’s representative referred her to the Persal printout for adjustments made in July 1998 and July 2000.

15. The Applicant rejected the adjustments made on her salary throughout the years by highlighting that this was applicable to all employees, IQMS progression.

16. The Applicant’s case was closed after re-examination.

17. Closing arguments were presented in writing by both parties.

ANALYSIS OF EVIDENCE AND ARGUMENT

18. I find it absurd that the Applicant did not lead evidence on what should be her accurate figures. The Applicant’s case is about being paid the correct amount comparable to her colleagues in terms of her qualifications as well as being owed monies from 1998/ 2001 by her employer. However, she could not specify the correct figures she is currently entitled to and did not lead any evidence on the exact amount she is being owed by her employer.

19. Whereas the Applicant complained about being the lowest paid employee, there was no evidence adduced to substantiate this claim. No evidence was led on any of her comparators. Further, no comparator was specified and no comparative payslips were submitted.

20. The Applicant also failed to adduce evidence of her claim that she was appointed at REQV13 when she was appointed. The evaluation done by DHET could not assist in this regard as this was done post appointment.

21. In the premise, I render the award as follows:

AWARD

22. The Applicant was paid at salary level 7 from date of appointment, thus REQV 14.

23. There is no evidence of being underpaid nor being owed any monies by the Respondent.

24. The Applicant’s claim of non-payment is dismissed.

25. I make no order as to costs.
Dated and signed on the 30th of May 2024.

Vusi Moyo
ELRC Commissioner