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06 May 2025 -ELRC883-24/25KZN

Panelist: Clint Enslin
Case No.: ELRC883-24/25KZN
Date of Award: 23 April 2025

In the ARBITRATION between:

Nombulelo Macingwane
(Union / Applicant)

and

Department of Education: KZN

(Respondent)

Applicant’s representative: Siyanda Sinci (NAPTOSA) 
Applicant’s address:        

Telephone:  0760390283  
Telefax:        
                                                  
Email        gpss1@naptosa.org.za    

Respondent’s representative:    Pregasen Appalraju  
Respondent’s address:       


Telephone:  0795250973  
Telefax:        
Email   pregasen.appalraju@kzndoe.gov.za

DETAILS OF HEARING AND REPRESENTATION

  1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The arbitration was held, on-line on the Teams platform, on 21 February 2025 and 14 April 2025.
  2. The Applicant, Ms Nombulelo Macingwane, was represented by Mr Siyanda Sinci, a full time shop steward of NAPTOSA, a registered trade union. The Respondent, Department of Education: KZN, was represented by Mr Pregasen Appalraju, Deputy Chief Education Specialist, of the Respondent.

ISSUE TO BE DECIDED

  1. Whether the Respondent’s failure to recognize the Applicant’s prior service with the WC DOE, capture her assumption date with the Respondent correctly, place her on the correct notch when she assumed duty with the Respondent and pay her in terms thereof, amounts to an uUnfair lLabour pPractice in terms of Section 186(2)(a) of the LRA, and if so;
  2. To dDetermine appropriate relief.

BACKGROUND TO THE ISSUES

  1. The following facts were agreed to between the parties as common cause and there existed no dispute of facts.

5.1 The Applicant started her employment with the Department of Education, as a PL1 educator, in the Western Cape Department of Education (“WC DOE”), on 1 July 2012.

5.2 She was transferred, as a PL1 educator, to the Kwazulu-Natal Department of Education (“KZN DOE”), on 1 April 2019.

5.3 The Applicant’s service record was not forwarded to the KZN DOE, when the transfer took place, and as such the Applicant started at the entry level in KZN.

5.4 The assumption of duty form, as signed by the Applicant and the Principal, stated that the Applicant started on 3 April 2019 in KZN. This date was put on the form as 1 April 2019 (actual start date) fell on a Saturday.

5.5 As a result of the Applicant starting on the entry level in KZN and the assumption date being incorrect, the Applicant was placed on the incorrect notch and has been on the incorrect notch since 1 April 2019. She has also lost money in terms of notch increases and pay progression.

5.6 The Applicant’s service period in the WC DOE should have been recognised and her start date in KZN DOE should have been 1 April 2019.

5.7 During July 2020 and July 2021 no employees received pay progression, due to Covid-19.

5.8 The figures contained in the spreadsheet, which parties provided in bundle X, were accurate and covered 1 April 2019 until 30 April 2023 (Period the Applicant worked for the KZN DOE.)

5.9 As a result of the Respondent’s failure to recognise the Applicant’s prior service and capture the correct assumption of duty date in KZN the Applicant is entitled to back pay in the amount of R46 835.23.

  1. The Parties handed in 1 bundle, marked “X” jointly. Document “X” contained the breakdown and calculation of monies owed (quantum) for the period of 1 April 2019 until 30 April 2023. It was calculated by the Respondent’s relevant department and parties agreed that the document and its contents were also common cause and accurate.
  2. Parties further agreed that the breakdown of the monies owed, as per X, was as follows:

7.1 April and May 2019 = R139.34 (short pay)
7.2 June 2019 to June 2020 = R3 000.00 (short pay) + R230.14 (service bonus)
7.3 July 2020 to June 2021 = R7 548.00 (short pay) + R629.00 (service bonus)
7.4 July 2021 to November 2021 = R5 068.75 (short pay)
7.5 December 2021 to March 2022 = R2 554.00 (short pay)
7.6 April 2022 to June 2022 = R5 468.25 (short pay) + R1822.75 (service bonus)
7.7 July 2022 to November 2022 = R11 156.25 (short pay)
7.8 December 2022 to March 2023 = R5 878.00 (short pay)
7.9 April 2023 = R3 340.75 (short pay)

  1. The Applicant seeks to be paid the monies owing to her in terms of back pay.
  2. The matter was recorded electronically.

SURVEY OF EVIDENCE AND ARGUMENT

  1. Both parties were afforded an opportunity to lead any further evidence, raise any issues in dispute and/or make any further submissions. They both confirmed that there were no issues in dispute and that they did not wish to lead any further evidence or make any further submissions.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. Section 186(2) of the LRA states that “Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving –
    (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of a benefit to an employee. (Own underlining)
  2. It is by now trite that an employee’s salary and other payments such as bonuses amount to a benefit for purposes of section 186(2)(a) of the LRA. I am accordingly satisfied that the dispute is covered by the aforementioned section of the LRA.
  3. All of the facts in this matter are common cause. These include, inter alia, that the Applicant’s prior service with the WC DOE was not recognised when she was transferred to the Respondent, although it should have been recognised, and that her assumption date at the Respondent was in fact 1 April 2019. That as a result of the aforementioned she started on the entry level at the Respondent, which should not have been the case. That she accordingly lost a total of R46 835.23 in short/under payments of salary and service bonuses and that this amount is owed to her.
  4. Given all the above, I am satisfied that the Applicant was entitled to have her prior service with the WC DOE recognised when she was transferred to the Respondent, to have her assumption date with the Respondent correctly captured as 1 April 2019 and to then have been placed on the appropriate notch/pay scale instead of the entry level notch/pay scale. I am further satisfied that the Respondent’s failure to do so amounted to an Unfair Labour Practice – relating to benefits. She is accordingly entitled to receive back pay for the period from 1 April 2019 to 30 April 2023 (period she was employed by the Respondent).
  5. As per X (which contains full breakdown of the calculations), which is agreed, the total back pay owing is R46 835.23 and is broken down as per paragraph 7 above:

AWARD

  1. The Respondent, the Department of Education: KZN, has committed an uUnfair lLabour pPractice, in terms of Section 186(2)(a) of the LRA – relating to benefits, against the Applicant, Ms Nombulelo Macingwane, by failing to recognise her prior service with the Department of Education WC and capture her correct assumption date with the Respondent.
  2. As a result of uUnfair lLabour pPractice, the Respondent is ordered to pay the Applicant an amount of R46 835.23 less normal deductions, in back pay, for the period of 1 April 2019 to 30 April 2023.
  3. The amount in paragraph 17 above, must be paid by no later than 30 May 2025.

Name: Clint Enslin
(ELRC) Arbitrator