In the matter between

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration was held virtually, through the TEAMS platform, on 28 March 2025 and 17 April 2025.  
2. Mr Akhona Dondashe (applicant) was in attendance at both sessions, and was represented by NAPTOSA official, advocate Gavin Duncan Saayman. Lovedale TVET College (2^nd respondent) was represented by its labour relations officer, Ms Nosiphiwo Mjonono. There was no appearance for the Department of Higher Education and Training (1^st respondent).
3. The dispute is about unfair labour practice related to benefits, in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (LRA) and concerns the improvement of a qualification benefit of notch increase that the applicant claims to have qualified for from 01 December 2023.
4. The proceedings were digitally recorded.
5. At the completion of proceedings on 17 April 2025 parties elected to do their closing arguments in writing and undertook to submit their written arguments by no later than 24 April 2025. Both parties submitting in line with the agreed time frames. I have taken their written arguments into consideration in penning this award.   

ISSUE TO BE DECIDED

• I am required to determine whether an unfair labour practice relating to benefits was committed when the respondent did not put into effect the improvement of qualification benefit of notch increase that the applicant claims to have qualified for after obtaining his Advanced Diploma in Technical and Vocational Teaching (Adv Dip TVT) on 01 December 2023. If an unfair labour practice is proven and there is no justifiable reason for its non-payment I will issue appropriate relief.

BACKGROUND TO THE ISSUE

• The applicant has been in the 2^nd respondent’s employ as a college lecturer (post level 1) in terms of renewed fixed term contract from 2016. The last contract, which he is currently working under, is from 01 December 2022 to 30 November 2025.
• The applicant is currently in notch 119 and earns a basic salary of R22 488.00 per month. His post-matric qualifications are Bachelor of Commerce (General) degree (B-Com) obtained from University of Fort Hare on 06 May 2016; and Adv Dip TVT obtained from Nelson Mandela University on 01 December 2023.
• The applicant’s claim is that he qualifies for an improvement of qualifications benefit which should result in his notch being increased with effect from 01 December 2023, which is the date he obtained his Adv Dip TVT. He also seeks to have the 1^st and the 2^nd respondent being ordered to pay him the difference of what he was paid after and his supposed notch increase from 01 December 2023 to the date of issue of the award, which amounts to R66 759.00.
• The 2^nd respondent disputes the applicant’s claim and is saying that the Adv Dip TVT he obtained in December 2023 enabled him to be a fully-fledged lecturer and cannot be regarded as an improvement of a lecturer qualification. Before obtaining his Adv Dip TVT he was not a fully-fledged lecturer.

SURVEY OF THE EVIDENCE AND ARGUMENTS

1. The applicant’s case is that, in terms of clause B10.2.4 of PAM, as a serving educator with B-Com (REQV13) when he improved his qualifications and got his Adv Dip TVT (REQV14) on 01 December 2023 he was supposed to have his salary adjusted to a higher notch. With the adjustment having not been done on 01 December 2023, after he had submitted all required documents, the respondents should be ordered to immediately adjust his salary to a higher notch and pay him the difference of what he was paid and what he was supposed to be paid (being the back pay) from 01 December 2023 to the date of the issue of the award. His salary must be adjusted from notch 164 to notch 84. Other lecturers in circumstances similar to his have been paid the improvement of qualification benefit. The backpay he is supposed to be paid amounts to R66 759.00.
2. The respondent’s case is that PAM only applies to educators employed in terms of Employment of Educators Act 76 of 1998 (EEA) and not to lecturers. The applicant and other lecturers are employed in terms of Continuing Education and Training Act (previously known as Further Education and Training Colleges Act) 16 of 2006 (CET Act).[1] The legislation applicable to lecturers’ improvement of qualifications is the National Education Policy on Recognition and Evaluation of Qualifications for Employment in Education of 2016 (National Education Policy of 2016). The applicant obtained his Adv Dip TVT while in the respondent’s employ with state funding and in terms of clause 5.7 of GPSSBC Resolution 5 of 2014 (GPSSBC Resolution) he does not qualify for recognition of improved qualifications benefit.  

Applicant

1. The applicant testified that he has been a lecturer at King Williams Town Lovedale Campus from 2016 to date. On the issue of whether GPSSBC Resolution applies to him and his fellow lecturers he testified that college lecturers do not fall within the scope of GPSSBC. SADTU and NAPTOSA, which are the unions in the Education sector, are not represented in that Council.
2. The applicant referred to the National Policy on the Evaluation and Recognition of Qualifications for Employment of College Lecturers of 2022 (National Policy of 2022) (page 1 to 18 of applicant’s bundle A) which he says is the policy which applies to him and other lecturers for purposes of determining whether one qualifies for the improvement of qualification benefit.
3. Upon completion of his B-com degree the applicant REQV was 13, and when he obtained Adv Dip TVT on 01 December 2023 he, according to clause 7.1 of the National Policy of 2022, was accorded one additional REQV which landed him at REQV 14 (para 7, page 17 of A). Clause 5.3 of Policy on Professional Qualifications for Technical and Vocational Education and Training of 2013 (TVT 2013 Policy) provides that the preceding degree or diploma (B-Com in the applicant’s case) and Adv Dip TVT constitutes professionally qualified status as a TVET lecturer.
4.  The applicant was referred to clause B.10.2.4 of PAM, which provides that a serving educator with REQV 13 (or lower) on post level 1 who improves his or her education with the effect of his or her REQV improving to REQV 14 such an educator’s salary will be adjusted to notch code 85. If the said educator is already on the notch code 85 or beyond, he or she is eligible to receive a cash bonus equal to 10% of notch code 85. He testified that this policy is applicable in his circumstances, and that he is eligible for the adjustment, which is to take effect, in terms of 5.6 of National Policy of 2022, on the date the lecturer is confirmed by the examining body as having met all requirements for the qualification. The date he was confirmed to have met the requirements of Adv Dip TVT is 01 December 2023, as reflected in the qualification confirmation letter dated 12 December 2023 (page 24 of A). The adjustment he is eligible to is therefore to take effect from 01 December 2023. 
5. The applicant’s current salary notch is R269 856.00 per annum (on notch code 119), and upon the effecting of the adjustment from the date Adv Dip TVT was conferred on him (01 December 2023) he is to be moved to notch 163, which starts at R332 046 per annum. The respondents are to be ordered to move him to notch 164 going forward and pay him back-pay for the difference of what he earned at notch 119 and what he was supposed to earn at notch 164, backdated to 01 December 2023. The amount for back pay to be paid to him is R66 759.00.
6. On cross-examination he was asked whether PAM, which is meant for educators at the Department of Basic Education, applied to him and other College lecturers and his answer was that it did. He went further to say that some of his colleagues, in circumstances like his, had been paid for improvement of qualifications benefit. When he was told that CET Act is the applicable legislation to College lecturers, and not PAM, his answer was that he is not aware.
7. On the question of whether the respondents paid for his studies towards Adv Dip TVT his answer was that he paid registration fees, and the remainder of tuition fees were paid by the FACET Bursary, which is a State institution. 
8. On whether he had a teaching qualification when he joined the 2^nd respondent as a lecturer, he conceded that he only had a B-Com degree and had no teaching qualification. He got to be eligible to be a lecturer upon being given a provisional teaching certificate by SACE. When he got his Adv Dip TVT he got to be a fully-fledged lecturer.
9. The applicant did not agree that Resolution 5 of 2014 was applicable in ascertaining whether he qualifies for improvement of qualifications benefit. According to clause 5.7 of the Resolution the benefit is not payable if the claimant has received the qualification in question through State funding.
10. It was further put to the applicant that in terms of clause 5.2 of Resolution 5 of 2014 for one to be eligible to be considered for the improvement of qualifications benefit the qualification obtained must be higher than the minimum qualification required in the specific post. He was not a fully fledged lecturer when he got to be appointed and only got to be a fully-fledged lecturer when conferred with the Adv Dip TVT on 01 December 2024. His answer was that according to the National Policy of 2022 and clause B.10.2.4 of PAM he qualified. Also, there are other lectures in circumstances similar to his who were paid this benefit upon the attainment of Adv Dip TVT.     

First Respondent

Ms Tuletu Njengele

• Ms Tuletu Njengele (Lovedale- King Williams Town acting principal) testified that she got to be employed by the 2^nd respondent as a deputy principal with effect from 2017.
• She testified that for one to be appointed as a fully-fledged lecturer they must have a degree or diploma of the content modules or subjects they are to teach. Furthermore, they must also have a teaching qualification. People with only relevant degrees for the modules or subjects to be taught had previously been appointed even though they lacked teaching qualifications. They would then be given the opportunity to attain a teaching qualification in the form of a postgraduate degree or diploma. They were even assisted with bursaries for attaining those post graduate qualifications.
• The witness recalls that there were lecturers who, upon attainment of postgraduate qualifications enabling them to be fully-fledged lecturers, unduly sought and received improvement of qualification benefit. Only fully-fledged lecturers with additional tertiary qualifications (relevant to the curriculum needs) are eligible to be considered for improvement of qualification benefit. The said lecturers had unduly relied on PAM, which is a Department of Basic Education policy. The document meant for College lectures is Personnel College Administrative Measures (PCAM and not PAM).
• On cross examination it was put to him that PCAM is not yet in operation, and she conceded this. She also conceded that while PCAM is not yet operational PAM is used. She conceded that if clause B.10.2.4 of PAM and the National Policy of 2022 is applied the applicant is eligible for notch increase from notch 164 to 85.   
• The witness further testified that National Policy of 2022 is not an authentic document because it has not been signed. What has been used for improvement of qualification benefit is Resolution 5 of 2014.

Mr Hopewell Simphiwe Dlamini

• Mr Hoewell Simphiwe Dlamini (1^st respondent’s labour relations officer) testified that when he joined the 1^st respondent, he recalled that PAM was used for purposes of determining who qualifies for improvement of qualification benefit. Upon receiving a legal opinion dated 13 November 2024 they stopped using PAM because it was found not to be applicable to College lecturers. Resolution 5 of 2014 was directed by 1^st respondent’s management to be utilised until PCAM gets to be finalized and adopted.
• On cross examination it was put to the witness that Resolution 5 of 2014 is not applicable to lectures as the signatories of the Resolution are not either SADTU or NAPTOSA and are thus not in the Education Sector. He conceded to the signatories not being in Basic and Higer Education Sector. He, however, remained adamant that PAM is not applicable to College lecturers.      

Arguments

• For the applicant it was argued that lecturers who have obtained formally approved and recognized qualifications, and those in the process of completing such qualifications will continue to receive full recognition for their qualifications. The 1^st respondent recognizes lecturers who improve their qualification up to REQV 13. Therefore, lecturers who improve their qualification from REQV 13 to 14 are still eligible to claim improvement of qualifications benefit. The applicant’s prayer is to be moved to the correct notch, with effect from 01 December 2023 and be paid a back pay of R66 759.00. 
• For the 2^nd respondent it was argued that the applicant’s improvement of qualification benefit is to be claimed only in terms of Resolution 5 of 2014, which is the applicable policy for this purpose and not PAM, which applies to Basic Education. She referred to GPSSBC award (GPBC576-2024), where the arbitrator ruled that applicants, Department of Higher Education and Training employees, were not employed in terms of Employment of Educators Act and their disputes about recognition of improvement of qualification are to be dealt with in terms of Resolution 5 of 2014 under the auspices of GPSSBC.

ANALYSIS OF EVIDENCE AND ARGUMENTS

• The dispute before me is indeed one of benefit in terms of section 186(2)(a) of the LRA. In Apollo Tyres South Africa (Pty) Ltd v CCMA and Others[2] the LAC held that a benefit in terms of section 186(2) of the LRA includes a statutory or contractual right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered to an employee in terms of a policy or practice subject the employer’s discretion.[3] Notch increase pursuant to one having been proven to have qualified for improvement of qualifications is additional advantage which is effected in terms of applicable policy or discretion by the employer and is thus a benefit.
• In a quest to prove that he is eligible to be paid the said benefit applicant incorrectly relied to National Policy of 2022, which is currently a draft document. On whether his REQV status changed from 13 to 14, such is conformed even by National Education Policies of 2013 and 2016. The attainment of Adv Dip TVT made him a fully fledged lecturer as the applicant conceded that before attaining it SACE had given him a temporary certificate to work as a lecturer. From 01 December 2023 the applicant got to be moved to REQV 14 and became a fully-fledged lecturer.
• On the issue of whether upon attaining Adv Dip TVT he qualified for an improvement of a qualification benefit the applicant relies on B.10.2.4 of PAM and National Policy of 2022 (which I have already mentioned that it is only a draft). Clause A.1.1 of PAM provides that this subordinate legislation is applicable to all educators as defined by Employment of Educators Act of 1998 (EEA) There is no mention of it being applicable to the Higher or Tertiary Education Sector. Again, the Basic Education Minister who promulgated PAM did so being empowered by section 4 of EEA. PAM therefore does not apply to College lecturers.
• The assertion by the applicant that clause B.10.2.4 of PAM applies to his circumstances has not been supported by any formal or legal documentation. If the 1^st respondent intended to have clause B10.2.4 of PAM to apply for the determination of how one qualifies for the improvement of qualifications benefit such would have been reduced to writing and be contained in a formal or legal document. I have not been referred to any document of that status.
• The applicant is also relying on the fact that there are lecturers in circumstances similar to his, who have been paid this benefit. An administrative action that was taken without any legal basis cannot be precedent setting. I cannot rule that the applicant be awarded a benefit, where there is no legal basis for him to receive such, simply because it was erroneously given to other fellow lecturers in circumstances similar to his.
• In the circumstances I find that the applicant has not proven that he is entitled to an improvement of qualification benefit. He thus has not been subjected to an unfair labour practice.  

AWARD

• I therefore make the following award:
  • The respondents did not commit an unfair labour practice related to benefits when it did not grant an improvement of qualifications benefit to the applicant.
  • The applicant’s dispute referral is dismissed.

Signature:

Commissioner: Mxolisi Alex Nozigqwaba

Sector: ELRC