07 May 2026 – ELRC738-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case number: ELRC738-25/26EC

In the matter between

NEHAWU obo Philani Kwinana Applicant

Department of Higher Education and Training (DHET) Respondent

Appearances: For the Applicant: Miss Sithandile Maqokolo (NEHAWU)
For the Respondent: Miss.Snazo Mhaleni: Assistant Director – Labour Relations
Arbitrator: Thobela Ncetezo
Heard: 13 November 2025, 14 April 2026
Delivered: 3 May 2026
SUMMARY: Unfair labour practice – Section 186(2)(a) of the LRA – Benefits

ARBITRATION AWARD

Details of hearing and representation

The dispute was set down for arbitration on 13 November, 4 December 2025, 5 February and 14 April 2026. Miss Sithandile Maqokolo who is an official of NEHAWU, represented the Applicant, Mr. Philani Kwinana. Miss. Sinazo Mhaleni who is employed as Assistant Director: Labour Relations represented the respondent, Education Department of Eastern Cape.
The proceedings which were digitally recorded were conducted in English.
Both parties submitted bundles of documents and they requested to submit bundles of documents in writing. Issue to be decided
I am required to determine whether the respondent’s failure to implement the qualification improvement benefit following the applicant’s completion of a Master’s degree in Agriculture in April 2025 amounts to an unfair labour practice as defined in section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended.

Background to the dispute

The Applicant has been employed by the Department of Higher Education and Training (DHET) as a Lecturer at Post Level 1 at Ikhala TVET College, Queen Nonesi Campus, since 1 April 2021.
The Applicant submitted that he obtained a master’s degree in agriculture from the University of the Free State and graduated on 10 April 2025. On 22 April 2025, he submitted his qualification for recognition, which qualifies him to receive 10% of his salary notch in terms of PAM, clauses B.10.2 and B.10.2.4. His desired outcome is payment in recognition of his qualification in the amount of R36,210.30.
The Respondent confirmed that the Applicant lodged a grievance after his application for qualification recognition payment was unsuccessful. It was submitted that the PAM document is not applicable to the Applicant.

Survey of evidence and arguments

Applicant’s case

The Applicant testified that, in terms of clause B.10.2 of the PAM, once a lecturer has completed a qualification, he or she is entitled to a 10% increase of her salary notch, which would improve it to REQV 14. He further testified that the PAM is applicable to the TVET College and that he is not aware of it having been nullified. He added that, in 2024, he received this benefit in respect of a qualification he obtained in 2022.
When he obtained master’s in agriculture in April 2025 from the University of Free State he applied for the benefit within twelve months as required but he did not receive any response as to whether or not he was going to receive the benefit. He then lodged a grievance on 28 August 2025.
Under cross-examination, the Applicant stated that at the time he signed his contract of employment, he was informed by the HR Manager that he was appointed under the Employment of Educators Act. He further stated that he is not familiar with the CET Act but is aware that he falls under the Department of Higher Education and Training as reflected on his payslip. He also testified that he believes he is employed under the Department of Basic Education.
He admitted that he would not have received from this benefit if he was not covered by the PAM. He added that he, together with other lecturers from other colleges, have been paid in terms of the PAM.
He admitted that Circular 10 is nullified by the current circular issued by Mr. Kruger (RB -page 1-3). The legal opinion has been suspended by the Department and therefore the legal opinion cannot be used as a reference as it is just advice to the respondent and ELRC. The error has not been rectified but the legal opinion, which is not a circular and the department is yet to issue its official document to rectify the error.

Respondent’s case

The witness for the Respondent, Mr Lunga Malindi, testified that he is employed as Deputy Principal: Corporate Services. His duties include human resources, recruitment, labour relations, marketing and communication, facilities & infrastructure management, and instructional teaching time (ITT).
He further stated that lecturers have been appointed under the Public Service Act since 2015 and not under the Employment of Educators Act, which was the applicable legislation when they were previously regarded as educators. He testified that they are no longer classified as educators but as lecturers. He therefore stated that the Applicant is a lecturer employed by the Department of Higher Education and Training (DHET), which is the employer in TVET colleges.
He further stated that PAM was amended in 2016 and 2022 and the applicant was not featured at the time. He submitted that the Applicant’s claim is without merit and lacks a legal basis, as the Applicant does not qualify for the benefit, being classified as a lecturer and not an educator
He further testified that there is no legal document or provision requiring TVET colleges to apply the PAM in the manner contended for by the Applicant. He stated that there is no legal instrument providing that the PAM must be extended to lecturers for purposes of recognition of improved qualifications.
Under cross-examination, he stated that the benefits and other conditions of employment of lecturers are regulated in terms of the Public Service Act (PSA), and that their employment is governed by the CET Act. He further stated that SACE is a professional council for educators. He added that IQMS and PMDS are professional tools used by lecturers and do not apply to basic education. He testified that TVET colleges do not use the PAM for workload purposes, and that lecturers and campus management are responsible for determining workload.
He further stated that in 2015 lecturers were removed from the basic education department. He stated that clause 5.2 (Workload per educator) of PAM would have been titled workload for educator/lecturer and the work lecturer in the provisions is a misalignment.

Closing arguments

The applicant argued that the respondent’s evidence must be disregarded because it is based on legal advice that has been suspended by the Director-General and is subject to ongoing consultation and an arbitration award relating to salary adjustment from REQV 13 to REQV 14 after obtaining a professional teaching qualification, which is different from the current matter.
It was further argued that the respondent did not provide evidence supporting the claim that lecturers are governed by the CET Act and PSA but relied solely on legal opinions which it was suspended later and personal assertions. Legal opinions do not constitute binding policy and cannot be relied upon as evidence in this case as that evidence is irrelevant and must be disregarded.
It was further argued that the witness demonstrated a lack of understanding of key employment frameworks, including ELRC, PSCBC, and REQV levels in that he incorrectly described lecturer post levels, referring to positions such as Junior Lecturer and Senior Lecturer, whereas official records and payslips reflect designations such as Lecturer (PL1 6 lecturer), Educational Specialist (PL2), Senior Educational Specialist (PL3), and Chief Educational Specialist (PL5).
The respondent argued that closing arguments the Applicant did not dispute the validity of the legal opinions and their contents. The only thing that he disputed is the reliance on the legal opinions to arrive at a decision. It was argued that the point that the Applicant is missing is that the CET Act and the EEA which have authority over the legal opinions and confirm what is in the Legal Opinion.
It was further argued that it was not in dispute that Lecturers are appointed under the CET Act but the Applicant is alleged that they are not aware of that. The PAM document clearly state that it is a document applicable to the Department of Basic Education and makes no provision for the DHET. The clause that the Applicant is relying on refers to an educator and he did not provide any proof that he is an educator but confirmed that he is a lecturer or document that supports his reliance on the PAM document for recognition of improved qualification.
The Applicant claims that he received this benefit in 2024. Paragraph 36 on page 58 of the Employer’s Bundle the Commissioner stated that an administration action which was taken without legal basis cannot be precedent setting a view that the respondent aligns itself with.

Analysis of evidence and arguments

The Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.
It was common cause that the Applicant obtained a master’s degree in November 2024 and submitted the relevant documentation to the Respondent for purposes of receiving a benefit in respect of the further qualification obtained. It was further common cause that the Applicant did not receive the benefit.
The Applicant contends that he ought to have received the benefit, as he qualifies in terms of the Personnel Administration Measures (PAM), and that other employees who had obtained higher qualifications were granted the benefit.
The Respondent’s testimony was that the Applicant is not entitled to the benefit, as the provisions of the PAM apply to employees employed in terms of the Employment of Educators Act 76 of 1998, as amended, whereas the Applicant is employed in terms of the Continuing Education and Training Act 16 of 2006 (CET Act).
In terms of Section 1 of the Employment of Educators Act (EEA) it applies to educators, meaning that it applies to a person who teaches and is employed by a provincial education department. Clause A.1.1 provides that PAM is applicable to all educators as defined in the EEA. It is common cause that the applicant is employed as a lecturer and not an educator as defined in the EEA. The PAM expressly states that its provisions apply to educators and therefore excludes the applicant who is employed by the respondent as a lecturer.
In terms of section 1 of the Continuing Education and Training Act (CET Act), a “lecturer” is defined as any person who teaches, educates or trains other persons, or who provides professional educational services at any college, and who is appointed in a post on any lecturer establishment under the CET Act.
Clause B.10.1.2 of PAM provides that qualifications will be recognized as from the date on which the educator meets all the requirements for obtaining the qualifications concerned, according to the written statement by the examining body concerned. In the absence of such a statement, a qualification will be recognized as from the date the certificate was issued.
The wording of this provision is clear in that it refers to “educators” and not lecturers. The applicant therefore cannot rely on the PAM in support of his claim for benefits, as its provisions do not extend to him, given that he is not defined as an educator in terms of the EEA.
Lecturers at TVET colleges are employed within the framework of the Department of Higher Education and Training (DHET), and the applicable legislation governing institutions established or declared as public colleges, or registered as private colleges, is the Continuing Education and Training Act (CET Act). The CET Act does not make provision for Relative Education Qualification Value (REQV). The REQV framework is provided for in the Employment of Educators Act (EEA) and the Personnel Administration Measures (PAM), which constitute the legal framework applicable to educators and persons working as lecturers at TVET colleges.
Circular 1 of 2015, a directive that was issued by DHET in 2015 to standardise and clarify employment conditions for lecturers at Technical and Vocational Education and Training (TVET) colleges, also does not make provision for a qualification improvement benefit.
An entitlement to a benefit in an employment relationship can only derive from the terms and conditions of employment, collective agreements or law. The applicant has not, in my view, been able to prove on a balance of probabilities that he is entitled to the 10% of his notch. Furthermore there was no evidence that the respondent has a policy or regulation which entitles its employees to this benefit.
Based on the above reasons, it is my considered view that the applicant has failed to discharge his onus to prove that the conduct of the respondent constitutes an unfair labour practice in terms of Section 186(2)(a) of the LRA.
I accordingly make the following award;