Case Number: ELRC 1121-24/25 EC
Panelist: Lungile Matshaka
Date of Award: 28 March 2025

In the ARBITRATION between

NAPTOSA obo Mr. D Khoza
(Applicant)

And

King Sabatha Dalindyebo TVET College
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. This is an award which is a result of an arbitration hearing held on the 11th of March 2025, relating to an Applicant, Mr. Delani Khoza, represented by Mr. Khahla, NAPTOSA Official, whilst the Respondent, King Sabatha Dalindyebo TVET College (KSD) , was represented by its Deputy Principal, Corporate Services, Mr. L Mswane.
2. The proceedings were digitally recorded, and the witnesses gave evidence under oath.
3. The parties requested and were permitted to submit closing arguments within 7 days. Both complied.

ISSUES TO BE DECIDED

4. I am required to decide whether or not the Respondent’s conduct in dismissing the Applicant’s claim pertaining to the recognition of his previous learning experience, in that the Respondent put him on an entry salary scale, which in his view affected his remuneration, 37% in lieu of benefits, salary increments and the IQMS Performance Assessment tool.

BACKGROUND TO THE ISSUE

5. The Applicant joined the Respondent’s employ as a lecturer on the 1st of March 2021, after working as an Engineer-in-Training, i.e. the position on entry into service. He resigned from his previous employer, eThekwini Municipality, after attaining the position of a Professional Specialist.
6. The post was advertised on 17 November 2020 with the initial salary scale of R211 089.00 per annum and on accepting the offer, the Applicant was remunerated as such on his appointment.
7. In his previous employ, the Applicant had Key Performance Areas (KRA) assigned to him as per the job requirement. When he joined the College, the Applicant alleges that the Respondent failed to recognize his previous learning and experience as provided for by the ELRC Collective Agreement No. 4 & 5 of 2003, the Personnel Administrative Measures (PAM) document and the Employment Educators Act, no 76 of 1998 (as amended) (EEA).
8. On the other hand, the Respondent is of the view that it had the right to dismiss the Applicant’s claim to the recognition of previous experience, 37% and salary adjustment based on the same Council’s Collective Agreement No. 4 & 5 of 2003 and prescripts on which the Applicant relies. The Respondent is not convinced that the Applicant should be regarded as an educator if he is not registered with the South African Council of Educators (SACE). As reflected in his Certificate of Service, the Applicant’s position on entry was an Engineer-in-Training. The mentioning or reference to employees that being developed in the workplace refers to them and not the learners.

SURVEY OF EVIDENCE AND ARGUMENTS

Applicant’s evidence

9. In his evidence under oath the Applicant introduced himself as a lecturer for Mathematics and Physical Science currently employed by the Respondent (College) effectively from 01 March 2021 to date. He further stated that when he joined the College, he already had previous learning and experience from eThekwini Metro as an Engineer in Training.
10. He further pointed out that he already was responsible for process controllers, assistants for all activities associated with operations of water and wastewater treatment works. He further stated that he would train the group of employees to perform tasks assigned to them.
11. The Applicant also brought to light that that the matter was previously and wrongly referred as an Unfair Labour Practice.
12. Under cross-examination, the Applicant further confirmed that both employment at KSD and eThekwini Municipalities respectively, there are quite a number of employees who are employed as lecturers in the Mechanical, Industrial and Civil sections. He insisted that at KSD he is an educator, doing the same job that he used to do eThekwini Municipality. He was also training students for practical life settings.
13. The Applicant insisted that he was not expecting to be paid below minimum, when considering that he already had appropriate experience.
14. He further stated that he conducted assessments and made sure that the people he was training are competent in the manner he was doing at the College.
15. He took a strong a view that the College had failed to recognize his previous learning and experience from the previous employ as per ELRC Collective Agreement 4 and 5 of 2003. He had spent 8 years in the Municipality performing same and/or similar functions as the ones he was appointed to do in the College. He also referred to 5C 4.1(b) where he stated that the Respondent failed to retain his salary and instead put him on an entry salary notch.

Respondent’s evidence

16. The Respondent’s witness, Mr. Galada confirmed his position as an Assistant Director Human Resources Management and that his key responsibility areas is recruitment and selection. He pointed out that the Applicant was not a teacher from his previous employ, and as a result his prior learning and experience was not considered.
17. The witness relied on the EEA and PAM document without producing or making any specific reference to the said documents.
18. Under cross-examination Mr. Galada was not able to pinpoint or draw assertions that the Applicant did not have previous learning and experience as per the PAM document.
19. In his concluding arguments, the Applicant argued that the Respondent’s witness, deliberately omitted to refer and discuss the provisions of ELRC Collective Agreements 4 & 5 of 2003 in which they are seeking the Commissioner to enforce the Applicant’s recognition of prior learning and experience.

ANALYSIS OF EVIDENCE & ARGUMENT

20. As a starting point the Respondent offered the Applicant, Mr. Khoza, a lecturing post (level) on 01 March 2021 after he had left the employ of eThekwini Municipality on the 28 February 2015. At the time of his resignation, he had then occupied a Professional Specialist position. It would be of interest to anybody to note that at his date of entry into service on 1 March 2007, he occupied the position of an Engineer-in-Training.
21. When the Applicant joined the College, he advanced before this tribunal an argument that the new employer refused or failed to recognize his previous learning and experience as provided for by the ELRC Collective Agreement No. 4 & 5 of 2003,the PAM document and the EEA.
22. Further, the Applicant also brought to light that the matter was previously and wrongly referred as Unfair Labour Practice. He made it quite clear that he has referred the matter to arbitration for the second time as an Interpretation and Application of the Collective Agreement dispute.
23. One would have thought that proof thereof would have been of importance and significance to give credence to the story.
24. Further, the Applicant also raised that the Respondent had refused to do pre-arbitration minutes and calculations of quantum payment. In this regard, it suffices to point out that no party has a right not to participate in a dispute which it has to account for its actions in compliance with the processes put in place.
25. In dismissing the Applicant’s claim, the Respondent would like to raise the following for the Commissioner’s consideration:

(a) The Applicant’s previous employment i.e. name of the prescript, in which he was appointed with, is contrary or not the same as the Act or prescript that is used by the Department of Higher Education and Training, which is the EEA

(b) His job title in the Certificate of Service as it appears in the bundle of evidence reflects as Engineer-in-Training not an Educator.

(c) His duties are as follows: Educating Senior Process Controllers, Process Controllers and Assistant Process Controllers. These are not essentially teaching duties.

(d) All teachers subscribe to SACE, and in the Applicant’s case, he was never required to join SACE.

(e) The Municipality is an independent organ of state using a different Act in appointing their staff.

(f) The Applicant has argued and mentioned the following Prescripts: viz. Resolution 4 & 5 of 2003 as well as the PAM Document.

(g) In their argument, they referred to page 3 of Resolution 4 of 2003, item 4.2 (b) that did not address the situation at hand.

(h) On Resolution 5 of 2003 the Applicant referred to item 4.2 C (ii) and again this clause speaks directly to the previous experience of an educator which is not applicable to his previous position.

(i) In the above regard, the Respondent concludes its arguments by stating that on PAM Document, the Applicant presented his case through item B8.4.3 note 2, which directly speaks to an Educators Post and is not applicable to his current position.

26. On the basis that no person may be employed as an educator in this country unless he or she holds a valid SACE certificate, in my view, has weakened the Applicant’s case and cannot be taken any further. SACE is a professional body at which all educators must register.
27. Further, as spelt out in a manuscript entitled “Promotion disputes in Public Education –Manual for ELRC Arbitrators” (authored by DP Van Tonder, 2014) no person may be employed permanently as an educator unless he has a minimum of a REQV13. This means that he or she must have a post matric degree or diploma in education which requires 3 years of full-time study.

AWARD

28. I make the following finding:
    28.1 I find that the Applicant’s previous employment i.e. name of the Act or prescript, in which he was appointed with, is not the same as the Act or prescript that is used by the Department of Higher Education and Training, which is the EEA.
    28.2 The Applicant is not an educator as defined in terms of the provisions of the EEA.
    28.3 Hence the Applicant has not proven on a balance of probabilities that he is entitled to the relief that he seeks.
    28.4 The Applicant’s dispute referral is dismissed. Signature:

Commissioner/ Panelist : Lungile Matshaka