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04 February 2025 – ELRC630-24/25WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA ZOOM

Case No: ELRC630-24/25WC

In the matter between

Pardon Chirara Applicant

and

Western Cape Education Department Respondent

ARBITRATION AWARD

PANELIST: Dr. GC. Van Der Berg
Award Date: 03 February 2025

          Details of hearing and representation
  1. The arbitration hearing took place on 24 January 2025 via digital zoom conference, and it was scheduled for 9:00AM. The applicant, Pardon Chirara represented himself. The respondent, Western Cape Education Department, was represented by Silvia Flandorp, Labour Relations officer. The applicant alleged an unfair labour practice regarding the reduction in the salary when WCED took over a collaboration school. The applicant sought to be placed on the same salary package that he received when the school was still operating as a collaboration, prior to 01 October 2023. The respondent denied that an unfair labour practice was committed against the applicant as the salaries of the Public School are fixed on a national level and not the same as a collaboration school where salary packages were negotiated with the applicant.
    Issue to be decided.
  2. The applicant referred to the ELRC an unfair labour practice dispute regarding section 186(2) of the Labour Relations Act 66 of 1995, as amended to the ELRC on 10 October 2024.
  3. I am required to determine whether the respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186 of the LRA by not placing the applicant since 01 April 2024 on the same salary package that he had when the school was still operated as a collaborative school up to 01 October 2023. Secondly, I must decide whether the applicant should have been taken over by the respondent at the same salary package that he had when the school still operated as a collaboration.
  4. In terms of appropriate relief if I find that the respondent committed an ULP: (1) The applicant must as an PL2 educator be paid at the same salary package as before from 01 April 2024 and the applicant must be compensated for monies lost because of his salary package being lowered when he was taken over by the respondent.

Background to the Dispute

  1. The applicant was employed since 2017 as an educator at Zwelethemba High School. Since 2019 he was appointed as Head of Department and then he was employed at a collaboration school which is the same school as before. The collaboration school was taken over by the respondent on 01 October 2023 and the applicant was given a contract appointment. From 01 April 2024 the applicant was appointed on a permanent basis by the respondent as Head of Department on post level 2 and his salary was determined on the minimum of the national salary structure of the Department of Education.
  2. The dispute was referred as an unfair labour practice regarding reduction in salary on 10 October 2024 to the ELRC. The case was conciliated on 21 November 2024 and a certificate of non-resolution was issued after a condonation ruling confirmed that condonation was granted. It was set down for the arbitration hearing on 24 January 2025 when it was completed.
  3. The parties did present opening statements and verbal closing statements on 24 January 2025. Both parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered.

Survey of evidence and argument
Documentary evidence.

  1. Both parties submitted a bundle of documents. The bundle of the applicant was marked as “A” (B1 to B6 (34 pages). The bundle of the respondent was marked as “R” pages 1-53. The parties did not dispute the authenticity of the relevant bundles.
    Applicant’s evidence and arguments
    The applicant, Pardon Chirara, Post level 2 Head of Department and Acting Principal, after having been sworn in, testified as follows:
  2. He stated that in bundle “A” at B3 the service level agreement between three (3) people can be seen. The first one is the WCED, and the second one is the School Turnaround Foundation referred to as the Operating Partner. The third partner is Zwelethemba High School, Chairperson of the Governing Body, and the principal. Every year such an agreement was signed and the SGB find not their own money to pay employees as the WCED gave all the money and running the collaboration school. The applicant was employed at the collaboration school as an educator and on 01 October 2023 the school was taken over by the WCED. The applicant became an educator of the respondent on a contract basis. On 01 April 2024, the applicant was appointed on a permanent basis by the WCED on PL2 as Head of Department.
  3. The applicant referred to page B4 page 2 and indicates that a collaboration school is a new type of public partnership which started a pilot project by the WCED. The WCED paid the other partners to pay the teachers and the WCED was aware what he was earning as a PL2 educator. When they appointed him on a permanent basis his salary was reduced from R38 476-01 per month by the WCED to R34 379-25. The applicant sought to be placed on the same salary package that he received when the school was still operating as a collaboration, and he sought compensation for monies lost because of his salary package being lowered when he was taken over by the WCED.
  4. Under cross-examination the applicant confirmed that he is acting now as Acting Principal, but his position is a Departmental Head. He was employed in the project and WCED started to run a school in this project. He stated that he was not employed by the SGB as he was paid his salary by the Operating Partner and the SGB. He stated that he was appointed by the Operating Partner and the WCED, but his letter of appointment was given to him by the Operating Partner and the SGB. His was referred to his letter of appointment on page 18 of bundle “R” as Head of Department and he confirmed that in this letter it nowhere states that the WCED is his employer.
  5. He also confirmed that the WCED was not responsible for any of his financial obligations as stated in the letter of appointment. The applicant read point 1.6 in B3b as follows: “Maintain the payment of salaries for educators and non-educators on the school’s staff establishment in terms of the Employment of Educators Act, 1998 (Act 76 of 1998) and the Public Service Act, 1994 (Proclamation No 103 of 1994), in accordance with the post provisioning model”. He said that this is the proof that WCED was involved as his employer. The WCED was only involved in his salary and the representative of the WCED said they also provided money for textbooks and for maintenance. The applicant said that a salary package for him was negotiated with the SGB and the Operating Partner. The applicant said that the WCED were aware of each teachers’ salary at the collaboration school. He agreed that the SGB and the Operating Partner paid him, and he did not receive a WCED salary advice.
  6. It can be seen on the payslip of the applicant on page 20 of bundle “R” that the school and not WCED paid his salary at the collaboration school.
    Respondent’s evidence and argument
    The respondent called two (2) witnesses to testify.
    The first witness of the respondent, Andre Lambrecht, Chief Education of WCED and Project Manager of the collaboration project, after having been sworn in, testified as follows:
  7. The first witness stated that he is familiar with the collaboration project at the relevant high school, and he knew what happened during that period up to 01 October 2023. He stated that before October 2023 the Zwelethhemba High School was a collaboration school. The WCED provided the salary of teachers at the school on a six-monthly basis when they paid money over to the SGB twice a year. WCED also paid to the school other expenses that were part of a collaboration school.
  8. The applicant was appointed as Head of Department and the offer was from the SGB and the Operating Partner and no input was given from the WCED. They negotiated the offer with the applicant, and they did not inform the WCED about the top up salary as they received the money from the WCED on a six-monthly basis. He stated that there are ten (10) collaboration schools now, and they get the same amount of money according to their staff establishment. The salary at the collaboration school was negotiated with the applicant and when he was appointed permanent on 01 April 2024 at PL2 his salary was determined based on national salary structures.
  9. Under cross-examination he confirmed that all the collaboration schools are his responsibility, and the collaboration project was run in partnership with the Operating Partner and the SGB of the relevant school. He confirmed that it is a WCED project. The second witness of the respondent, Charika Abrahams, Human Resource Practitioner after having been sworn in, testified as follows:
  10. The second witness stated that her responsibility is mostly about salary determination and evaluation of qualifications. On page 22 of bundle “R” appears the service record of the applicant and it indicates the notch and salary rate he was on. He was previously employed at the collaboration school and on 01 April 2024 he came over to the public school. On 01 February 2024 the applicant’s notch was on R394032-00, and she explained what it means that the salary notch of a Departmental Head on post level 2 is on a 108.
  11. On 01 April 2024 he was appointed to the minimum of the salary notch of a post level 2 and there are yearly adjustments up to the maximum. She further explained the salary structure of the applicant and referred to his salary advice from the WCED. The applicant earned a different salary at the collaboration school that he negotiated with the SGB and the Partner.
  12. On page 21 she looked at the salary slip of the applicant at the collaboration school, and she stated that it is not possible that he would be paid the same salary at post level 2 in the public school as in the collaboration school. The salary notch at the public school is determent by the national salary structures and the WCED cannot deviate from that.
    Closing arguments
  13. Both the applicant and the representative of the respondent presented verbal closing arguments on 24 January 2025. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award. Analysis of evidence and argument
  14. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter.
  15. The applicant referred an unfair labour practice dispute in terms of 186(2) of the LRA. The applicant is alleging that the respondent has placed him on the wrong salary notch and his salary should have remained the same when the collaboration school was taken over by the respondent. It is common cause that the applicant has been employed by the collaboration school since 2019 as a PL2 teacher-Head of Department. On 01 October 2023 the school was taken over by the respondent and on 01 April 2024 the applicant was appointed on a permanent basis by the respondent on PL2 but on the salary notch as prescribed by the national salary structure of the Department of Education.
  16. The panellist is expected to determine whether the respondent committed an unfair labour practice (ULP) in terms of section 186 (2) of the LRA and whether the applicant should have been taken over by the respondent at the same salary package that he had when the school still operated as a collaboration school. If the respondent has committed an unfair labour practice against the applicant, I must determine the monies lost because of his salary package been lowered when he was taken over by the respondent and allocate the compensation to the applicant.
  17. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. He must prove that his salary package was unfairly lowered by the WCED and that he should have been paid on the same salary notch as when he was employed by the collaboration school.
  18. According to section 186(2)(a) of the LRA it provides that any act or omission involving the unfair conduct of the employer in relation benefits constitutes unfair labour practice. The Court in Apollo Tyres South Africa (Pty) Ltd v CCMA and others (DA 1/11 [2013] ZALAC 3; (2013) 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) put to test the debate as to whether a benefit is excluded in the definition or remuneration. On this point the Court held: “The distinction that the Courts sought is draw between salaries or wages as remuneration and benefits is not laudable but artificial and unsustainable. The definition of numeration in the BCEA is wide enough to include wages, salaries and most, if not all extras or benefits”.
  19. The applicant testified that the service level agreement between three (3) people was drawn up. The first one is the WCED, and the second one is the School Turnaround Foundation referred to as the Operating Partner. The third partner is Zwelethemba High School, Chairperson of the Governing Body, and the principal. Every year such an agreement was signed and the WCED gave all the money and running the collaboration school. The applicant was employed at the collaboration school as an educator and on 01 October 2023 the school was taken over by the WCED. On 01 April 2024, the applicant was appointed on a permanent basis by the WCED on PL2 as Head of Department but on a lower level of remuneration.
  20. When the WCED appointed him on a permanent basis his salary was reduced from R38 476-01 per month by the WCED to R34 379-25. The applicant sought to be placed on the same salary package that he received when the school was still operating as a collaboration, and he sought compensation for monies lost because of his salary package being lowered when he was taken over by the WCED. Under cross examination he stated that he was not employed by the SGB as he was paid his salary by the Operating Partner and the SGB. In his letter of appointment as Head of Department he confirmed that in this letter it nowhere states that the WCED is his employer. He also confirmed that the WCED was not responsible for any of his financial obligations as stated in the letter of appointment.
  21. In point 1.6 in B3b it states: “Maintain the payment of salaries for educators and non-educators on the school’s staff establishment in terms of the Employment of Educators Act, 1998 (Act 76 of 1998) and the Public Service Act, 1994 (Proclamation No 103 of 1994), in accordance with the post provisioning model”. He said that this is the proof that WCED was involved as his employer. The WCED was only involved in his salary and the representative of the WCED said they also provided money for textbooks and for maintenance. He agreed that the SGB and the Operating Partner paid him, and he did not receive a WCED salary advice.
  22. It is the testimony of the first witness of the respondent that the WCED provided the salary of teachers at the school on a six-monthly basis when they paid money over to the SGB twice a year. WCED also paid to the school other expenses that were part of a collaboration school. The applicant was appointed as Head of Department and the offer was from the SGB and the Operating Partner and no input was given from the WCED. They negotiated the offer with the applicant, and they did not inform the WCED about the top up salary as they received the money from the WCED on a six-monthly basis. When he was appointed permanent by the WCED on 01 April 2024 at PL2 his salary was determined based on national salary structures.
  23. It is the testimony of the second witness of the respondent that the applicant was previously employed at the collaboration school and on 01 April 2024 he came over to the public school. On 01 February 2024, the applicant’s notch was on R394032-00 on a post level 2. On 01 April 2024 he was appointed to the minimum of the salary notch of a post level 2 and there are yearly adjustments up to the maximum. She further explained the salary structure of the applicant and referred to his salary advice from the WCED. The applicant earned a different salary at the collaboration school that he negotiated with the SGB and the Partner. She stated that it is not possible that he would be paid the same salary at post level 2 in the public school as in the collaboration school. The salary notch at the public school is determent by the national salary structures and the WCED cannot deviate from it.
  24. The applicant submits that in a collaboration school it is a WCED project and salaries were provided by the WCED. When the collaboration school was taken over as a going concern and when he was permanently appointed by the WCED on 01 April 2024 they had to stick to the salary he was on when he was employed by the collaboration school on PL2 as Head of Department.
  25. It is the submission of the representative of the respondent and confirmed by the witnesses of the respondent that the collaboration project at Zwelethemba High School was in collaboration between the WCED, the Operating Partner and the SGB of the school. Salary negotiations was done between the applicant, SGB and the Operating Partner, to determine the salary of the applicant that was higher than the salary notches of the WCED that is based on national salary scales. WCED was not involved in the negotiations of the salary package of the applicant in the collaboration school.
  26. It is also submitted that finances that were paid over by the WCED to the SGB of the collaboration school were in line with national salary structures. The WCED is under no obligation to honor any salary packages from the collaboration school if it is not according to the prescribed salary packages. The applicant did not prove his case that he must be paid the same at WCED as he was earning at the collaboration school.
  27. It is clear from the testimony of the witnesses of the respondent and the closing arguments of the representatives as well as the testimony of the applicant that the respondent has not committed an unfair labour practice to the applicant. I find that the salary package of the applicant should not have remained the same when the collaboration school was taken over by the respondent. I further find the WCED is under no obligation to honor any salary packages from the collaboration school if it is not according to the national prescribed salary structures of the Department of Education. The applicant was appointed at post Level 2 as the Head of Department on the correct salary notch as prescribed by the national salary scales of the Department of Education.
  28. Considering all the above, the applicant was not subjected to a ULP regarding salary scales as envisaged by the LRA provisions. Considering the above I will make the following award.

AWARD

  1. The respondent, Western Cape Education Department did not commit an unfair labour practice dispute in terms of 186(2) of the LRA and the applicant was correctly placed on the minimum notch as prescribed by national salary structures for a PL2 educator in the WCED.

Dr. GC. Van Der Berg