10 August 2022 – ELRC19-20/21GP

Commissioner: George Georghiades
Case No.: ELRC19-20/21GP
Date of Award: 08 August 2022

In the ARBITRATION between:

DR. MARINDA BANNISTER
(Union / Applicant)
and

GATENG DEPARTMENT OF EDUCATION
(First Respondent)

DEPARTMENT OF BASIC EDUCATION
(Second Respondent)

Applicant’s representative: Mr. Andre Schmidt
Union/Applicant’s address: A C Schmidt Attorneys
Telephone: 011 845 5118
Facsimile: 086 5017 248
Email: andre@acschmidt.co.za

Respondent’s representative: Charmaine Trent
Respondent’s address: Gauteng Department of Education
Telephone: 011 746 8190
Email: charmaine.trent@gmail.com

DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between Dr. Marinda Bannister and the Gauteng Department of Education, joined by the Department of Basic Education, was held under the auspices of the Education Labour Relation Council (“ELRC”), via Zoom Meetings that commenced on 13 August 2021 and was finalised at a face-to-face arbitration hearing on 01 June 2022. The matter was referred to arbitration on 09 July 2021, the nature of the dispute being the Interpretation and Application of a Collective Agreement.
2. The proceedings were conducted in English and were manually and digitally (video and audio) recorded.
3. The applicant, Dr. Marinda Bannister, was represented by Adv. Daryl Williams, acting on instructions from AC Schmidt Inc Attorneys. The first respondent was represented by Ms. Charmaine Trent and the joined respondent, the Department of Basic Education, was represented by Ms. Poinky Masekela.
4. The parties submitted their evidence bundles, the applicant’s evidence bundle was marked as Bundle “A”, while the respondent’s evidence bundle was marked as Bundle “R”.
PRELIMINARY ISSUES
5. Due to the parties initially being unsuccessful in conducting a pre-arbitration meeting with signed minutes emanating from a ruling by the panellist to conduct such a meeting, an assisted pre-arbitration was conducted by the panellist, between the parties. At the conclusion of the assisted pre-arbitration meeting, the panellist compiled a minute of the pre-arbitration meeting, that was accepted and signed by both parties.
6. During the course of the arbitration proceedings, two preliminary issues were raised by the parties, the first one being that the Department of Basic Education should be joined to the dispute as an interested/affected party, while the second preliminary issue that arose, related to a jurisdictional issue raised by the respondent in respect of the ELRC’s jurisdiction to consider the dispute.
7. Insofar as the first preliminary issue that was raised, in line with section 46.2 of the ELRC’s Constitution: Dispute Resolution Procedures, the panellist issued an order that the second respondent, being the Department of Basic Education, be joined as a party in the proceedings.
8. In respect of the jurisdictional issue raised by the respondent during the proceedings, in referring to section 17.7 of the ELRC’s Constitution: Dispute Resolution Procedures, the parties presented arguments and made written submissions to the panellist who, after considering these, ruled that Council has the jurisdiction to consider the dispute. A detailed and reasoned written ruling was separately issued by the panellist, in this regard.
ISSUES TO BE DECIDED
9. This matter was referred to the ELRC as a dispute in terms of Section 24(2) of the LRA, namely the Interpretation and Application of a Collective Agreement, specifically Collective Agreement 01/2012.
10. I am tasked to determine whether, on interpretation of Collective Agreement 01/2012, the applicant ought to have been translated to the post of Education Psychologist (School-based – Grade 2) on 01 January 2013, when the Collective Agreement 01/2012, was implemented.
11. The applicant requested that should I find in her favour, that that the respondent be ordered to pay her retrospectively from 01 January 2013, in accordance with Collective Agreement 01/2012, in respect of the post: Education Psychologist (School-based – Grade 2), inclusive of all applicable increments and benefits.
BACKGROUND TO THE DISPUTE
12. The dispute concerns the interpretation and application of Education Labour Relations Council (ELRC), Collective Agreement 01 of 2012.
13. The applicant, Dr. Marinda Bannister, was initially employed at Destinata School by the School Governing Body and subsequently, by the respondent in a temporary capacity from 01 January 2010. She became permanently employed by the respondent on 01 July 2010.
14. Under the new dispensation, the Education Labour Relations Council (ELRC), Collective Agreement 01 of 2012 undertook to introduce and align an occupation specific remuneration and career progression dispensation (OSD) for physiotherapists, occupational therapists, speech therapists, counsellors and psychologists employed in public education.
15. The applicant submitted that the Collective Agreement drew a distinction between education therapists (physiotherapists, occupational therapists and speech therapists), counsellors and psychologists and in line with provisions of the Collective Agreement, was applied on 01 January 2013.
16. In essence, the applicant argued that the applicant ought to have been translated to the post of Education Psychologist (School-based – Grade 2) on 01 January 2013, when the Collective Agreement 01/2012, was implemented.
17. The respondent disputed the applicant’s claim, arguing that the Collective Agreement made provision for three career streams, where translations occurred within the relevant career streams and as such, the applicant was correctly translated in line with the provisions and intent of the Collective Agreement.
18. As the dispute was referred in respect of the respondent’s alleged failure to correctly interpret and apply a collective agreement, the onus to prove this, lies with the applicant.
PARTIES’ SUBMISSIONS AND ARGUMENTS
THE APPLICANT’S CASE
The applicant, Dr. Marinda Bannister, testified under oath that:
19. She has been registered with the Health Professions Council of South Africa (HPCSA) since 1994, after having completed her internship in Psychology, as a requirement for the completion of her Master’s degree in 1993. On the 04 May 2007, the qualification of Doctor in Psychology, was conferred on her.
20. On completion of her doctoral studies, she continued as an intern with the respondent in a position of a psychologist, while she practiced privately as an Educational Psychologist. Her scope of work comprised of assessing children with scholastic problems, carrying out diagnoses, making professional recommendations and conducting therapy with patients.
21. She is currently employed at Destinata Remedial School, which caters for children with special needs. She commenced her employment in 2006, when she was employed by the School Governing Body between 2006 and 2010.
22. 0n 01 January 2010, she was employed by the Gauteng Department of Education in a temporary capacity and was absorbed into a permanent post on 01 July 2010. The post that she occupied was that of a School-based Educational Psychologist, while she was remunerated as a Senior Educational Therapist. Although she was referred to as a Psychologist, her salary advice referred to her as a Chief Education Therapist.
23. Her appointment came about as a result of a therapist post having become vacant, for which she applied, attended an interview and was appointed. Despite it having put to her by the respondent that Education Psychologists were only appointed at circuit-level (office-based), she averred that this could not be the case, as she did not appoint herself as a School-based Senior Therapist conducting the duties of a psychologist – this appointment was confirmed by the District Director.
24. Although there were psychologists who were moved to the circuit offices prior to the OSD, some remained as School-based Psychologists.
25. She acknowledged that although it was possible that no School-based Psychologists were appointed after the introduction of OSD, there were several School-based Psychologists who were carrying out the work of psychologists at schools, while having been appointed as therapists, prior to the introduction of OSD. These employees carried out the work of a psychologist, were referred to and addressed as psychologists. Her scope of practice was that of a psychologist.
26. Prior to the existence of the Collective Agreement (01/2012), the Gauteng Department of Education appointed psychologists in positions of therapists. There was no significant difference in salary between psychologists and therapists. The Collective Agreement was implemented on 01 January 2013, where the salary scales for therapists and psychologists differed considerably.
27. Although the list and extent of the duties of district-based (office-based) psychologists were conducted across a wider stage, she carried out many of these duties at a school level. Although she did not carry out all the duties that a District-based Psychologist conducted, there were many of which, she carries out while serving on the Developing District-based Support Teams (DBST). She carried out all her duties as a School-based Psychologist.
28. The objectives of the Collective Agreement (at clause 2.2) was to introduce an occupation specific remuneration and career progression dispensation (OSD) for physiotherapists, occupational therapists, speech therapists, counsellors and psychologists employed in public education.
29. Upon the introduction of the OSD, physiotherapists, occupational therapists and speech therapists were categorised as educational therapists, while counsellors and psychologists were separated, and provision was made for these categories on their own.
30. One of the objectives of the Collective Agreement (at clause 2.4), was to introduce differentiated salary scales for educational therapists, counsellors and psychologists based on a new remuneration structure.
31. Her current scope of work at Destinata School, where she is employed as a Chief Educational Therapist (as per her PERSAL inquiry record), is that of a Psychologist, which includes conducting re-evaluations, diagnoses and therapy. On 10 July 2020, the headmaster of Destinata School, Mr. A B Lottering, confirmed to the District Director of the Sedibeng East District, that she performed the duties of a psychologist, although she was aware that she was appointed on the salary scale of a therapist.
32. The scope of practice of an educational therapist (physiotherapist, occupational therapist or speech therapist) does not permit him/her to diagnose patients (learners). She diagnoses patients in her current position at Destinata School as a psychologist.
33. She is regularly requested to interpret reports and conduct cognitive assessments on learners, which educational therapists (defined as per introduced OSD) are not permitted to do in their scope of practice. Ms. Emmah Mangope, Deputy Chief Education Specialist: Inclusion and Special Schools, confirmed via email to Ms. Razia Osman (GPEDU) that she (Bannister) was a psychologist and not a registered counsellor.
34. Ms. Anzaret van Rooyen, a School-based Psychologist employed at Lantern School, who performs the same nature of work and job description as her, was translated from an Educational Therapist (pre-OSD) to a School-based Educational Psychologist (post-OSD).
35. At the same time that Ms. Van Rooyen was considered a School-based Educational Therapist, her rank, as per her service enquiry record, was that of a School-based Chief Education Therapist, yet Ms. Van Rooyen was translated to a School-based Educational Psychologist Grade 1. The current job title of Ms. Van Rooyen as per her salary advice, is that of a School-based Educational Psychologist Grade 1 and she is remunerated accordingly.
36. In terms of her professional category of registration, as recognised on the records of the respondent, she is listed as a School-based Psychologist, being the same category in which Ms. Van Rooyen is included.
37. The OSD introduces different career streams, one for school-based education therapists, counsellors and psychologists and one for office-based education therapists, counsellors and psychologists (as per para 5.1.3 of the Collective Agreement). Despite the career streams being different, the career paths both provide for the same remuneration, being R 392 079.00 as at implementation date of OSD in January 2013.
38. Annexure C1 of the Collective Agreement refers to the OSD structure for School and Office-based Psychologists employed in Public Education, while Annexure C2 thereof provides OSD for School-based Psychologists, Career Paths, Remuneration, Post Structure, Appointment Requirements, Recognition of Experience, Grade Progression Opportunities and Requirements.
39. Prior to the implementation of the Collective Agreement and the introduction of OSD, psychologists were categorised as educational therapists, despite conducting the work of psychologists. Upon the introduction of OSD, a distinct separation was introduced between therapists, counsellors and psychologists.
40. She met all the requirements contained in the OSD, to be translated to a School-based Education Psychologist (grade 2). She has been registered with the HSCPA as a psychologist since 1994, she was on a salary scale 08 since 01 January 2010 and met all the qualification and experience requirements of the OSD.
The applicant’s second witness, Ms. Anzaret van Rooyen, testified under oath that:
41. She is currently employed as a School-based Psychologist at Lantern School, which is a school that assists learners with special needs, having practiced as a psychologist for 15 years.
42. At 30 March 2012, her job title was that of an Education Therapist. On 29 August 2014, her job title was that of a School-based Education Therapist: Grade 1. On 30 September 2014, her job title was that of an Educational Psychologist: Grade 1.
43. In May 2014, she approached the Gauteng Department of Education and spoke with a Ms. Sithembile Buthelezi, in order to be recognised as a psychologist. After having provided her credentials, she was informed that she was employed in an incorrect post and that she would be converted into the correct post.
44. She was instructed to obtain a letter from her headmaster, requesting for her to be converted to a psychologist. The subsequent process were carried out, where a Ms. Rosalind Keyter was instrumental in translating her to the post of Education Psychologist.
45. On 01 January 2010, prior to the introduction of the OSD, both she and Dr. Bannister held the job title of an Education Therapist, with Dr. Bannister being a Senior Education Therapist.
46. She is aware that the Personnel Administrative Measures (PAM) policy document refers to the repayment of monies where these have been paid to employees in error, however, she has not been paid in error, having been properly and procedurally translated to a School-based Psychologists.
47. She was translated to the position of a School-based Psychologist in 2014. She received a visit from a certain Ms. Buthelezi in 2019, five years after her translation, inquiring about processes and suggesting that she was incorrectly translated to the position of a School-based Psychologist in 2014.
48. Despite Ms. Buthelezi suggesting that she would be required to repay monies that were erroneously paid to her, to date, more than two years after the visit by Ms. Buthelezi, no monies have been deducted from her and no instruction has been given to her to repay any monies paid to her in error.
The applicant closed its case.
THE RESPONDENT’S CASE
The respondent’s first witness, Ms. Dorothea (Thea) Botha, testified under oath as follows:
49. She has been employed by the Department of Education since 1989. She is currently employed in the position of Director: Human Resources – Transactional Services and Transversal Support. She is responsible for six (6) sub-directorates.
50. Her duties and responsibilities include the implementation and management of service benefits, Policy and Procedure on Incapacity Leave and Ill-health Retirement (PILIR), records of head office, compensation, benefits, budgets, Personal and Salary System (PERSAL), interpreting and reporting of HR data and Personal and Salary System (PERSAL) management.
51. Her department is required to work efficiently on the PERSAL system, being the only department that can create and dispose of posts on the PERSAL system. Her department does not take any decisions relating to the creation of posts – this function falls within the department known as Organisational Design.
52. Three types of posts exist, being those of public servants, educators and therapists. Based on a Post Establishment for each school, her section creates and allocates the relevant posts, prescribed in the Post Establishment document, with each post being allocated a specific post number (code).
53. Before the introduction of OSD, all therapists were allocated the same code. Prior to the introduction of OSD, Dr. Bannister held the position of an Education Therapist (THER/PSYC). At the introduction of OSD, she was translated to the post of Education Therapist: School-based.
54. Grade progression is the salary movement from one salary grade (scale) to the first salary notch of the next higher salary grade attached to a post. Pay progression is the salary movement from one salary notch attached to a salary grade to the next higher salary notch, attached to the same salary grade.
55. Before the introduction of OSD, there were only references made to therapists. Upon the introduction of OSD, there were three different streams, being (1) Speech Therapists, Occupational Therapists and physiotherapists, (2) Counsellors and (3) Psychologists. If an employee was employed as a therapist prior to OSD, they were translated to the corresponding correct career path, being that of a therapist.
56. Annexure A1 of the Collective Agreement relates to the translation scales for school and office-based Therapists. Annexure B1 refers to the translation scales for Counsellors. Annexure C1 refers to the translation scales for Psychologists. Prior to the introduction of OSD, no separate salary scales existed in respect of Therapists, Counsellors and Psychologists.
57. In applying the translations of the OSD, one cannot be translated from one career stream to another. If an employee was employed as a therapist prior to the introduction of OSD, they would be translated to a therapist within the correct scale. Counsellors prior to OSD were translated to Counsellors after the implementation of OSD and similarly, Psychologists prior to the OSD were translated to Psychologists.
58. In terms the Translation table C3.1 of Annexure C, for an employee to have been translated to the post of Educational Psychologist: Grade 1, on salary levels 8 – 11, they would have been required to meet the following criteria: (1) being registered as a psychologist in the relevant registration field, (2) perform the duties of a psychologist and (3) on 30 June 2010, had less than 8 years’ relevant service after registration as a psychologist (in the relevant registration field).
59. In terms the Translation table C3.2 of Annexure C, for an employee to have been translated to the post of Educational Psychologist: Grade 2, on salary levels 8 – 11, they would have been required to meet the following criteria: (1) being registered as a psychologist, (2) perform the duties of a psychologist and (3) on 30 June 2010, had 8 or more years’ relevant service, but less than 16 years relevant service after registering as a psychologist.
60. In terms the Translation table B3.3 of Annexure C, for an employee to have been translated to the post of Educational Psychologist: Grade 3, on salary levels 8 – 11, they would have been required to meet the following criteria: (1) being registered as a psychologist, (2) perform the duties of a psychologist and (3) on 30 June 2010, had 16 years or more relevant service after registering as a psychologist.
61. In terms of the translation table C3.2 of Annexure C, none of the psychologists could be translated to Grade 2, because they would have reached the maximum threshold.
62. Dr. Bannister could not have been translated to the post of Educational Psychologist: Grade 2 for the following reasons: Although she was in service on 01 July 2010, there were no psychologist posts at schools, she could not have been translated to a post that did not exist, the required post was not budgeted for, and she was employed as a therapist prior to the introduction of OSD. The PERSAL system does not allow or provide for such a translation.
63. Annexure C2 of the Collective Agreement details the OSD for psychologists employed in public service, within the career stream of School-based Education. This is not applied to School-based due to no scope for this career stream, no budget for this stream and to ensure fairness within schools. The only provision made, is for office-based Education Psychologists.
64. Nowhere is it contained in the Collective Agreement that there is no provision for School-based Education Psychologists. However, the respondent does not have the funds to employ School-based Psychologists, that being the reason why no provision was made for School-based Psychologists.
65. The applicant claims that she should have been translated from a post of a Chief Education Therapist (prior to OSD) to that of a School-based Educational Psychologist, but this is not possible, because she cannot progress from the post of an appointed therapist to a psychologist, unless such a post is advertised.
66. Ms. Anzaret van Rooyen is being incorrectly paid as a School-based Psychologist. The matter is currently being addressed, with a corrective implementation plan in process in line with the PAM policy, which provides corrective measures in respect of unauthorised remuneration.
67. The translation of Ms. Anzaret van Rooyen to the post of a School-based Psychologist was a mistake on the part of the Gauteng Department of Education. A therapist (before OSD) can not be translated to a Psychologist (after OSD).
68. She conceded that the translation of Ms. van Rooyen to a School-based Psychologist occurred after a process was conducted but submitted that the respondent’s HR department erred while carrying out the process of translation. It was not possible for Ms. van Rooyen to be translated into a post that did not exist and for her to be translated from being in the post of a Therapist to that of a Psychologist.
69. The HR department failed to apply the Collective Agreement correctly, despite provision made therein for School-based Psychologists. Although no policy exists suggesting that there cannot be School-based Psychologists in the system, the Gauteng Department of Education has not created posts for School-based Psychologists due to budgetary constraints and no requirement of such posts.
70. She was not aware of which category of therapist Dr. Bannister was, but confirmed that as per her appointment letter, Dr. Bannister was appointed as an Educational Therapist. Historically, prior to the introduction of OSD and in terms of specific approvals, Psychologists were appointed at schools.
71. She conceded that as per the Collective Agreement, the salary of a School-based Psychologist and that of an Office-based Psychologist were the same. This, however, was not feasible for the respondent in terms of its budget and because the scope and extent of duties that a Psychologist would carry out at a school, compared to those duties conducted by Office-based Psychologists.
72. Dr. Bannister was translated into the OSD as part of what was referred to as a “historical group” of employees. There was no provision made for historical groups within the Collective Agreement. Prior to the introduction of OSD, there was no clear specification of Dr. Bannister’s post, however, as she had been appointed as a therapist prior to OSD, she could only be translated to the post of a Therapist.
73. She was aware that Ms. Sithembile Buthelezi, who was employed by the respondent, had conducted an investigation into the circumstances of Ms. Anzaret van Rooyen and signed a mandate letter, translating her to the post of a School-based Psychologist, but despite an investigation having been conducted, the translation was erroneous.
74. She was aware that Ms. Barbara Mahlangu had investigated the translation of Ms. van Rooyen in 2019, five years after her translation, submitting that the reason why this investigation was only conducted five years after the translation had taken place, was because the respondent only became aware of the translation in 2019.
75. After Ms. Mahlangu’s investigation was completed and a report was compiled, she considered the findings therein and issued correspondence that the monies paid to Ms. van Rooyen should be recovered. A letter of acknowledgement of debt will be provided to Ms. van Rooyen shortly.
The respondent’s second witness, Ms. Barbara Mahlangu, testified under oath as follows:
76. She has been employed by the respondent for 30 years where, since June 2019, she has served in the Labour Relations Department of the respondent.
77. She conducted an investigation into the translation of Ms, Anzaret van Rooyen in 2019, that came about as a result of a dispute that was lodged by a certain Ms. Bezuidenhout and one other. The dispute relating to Ms. Bezuidenhout and the one other, concerned claims that they had not been translated to positions of School-based Psychologists, while Ms. van Rooyen had been translated to such a post.
78. An arbitration hearing was conducted between Ms. Bezuidenhout and one other, and the respondent. Due to a jurisdictional issue, the matter was referred to the Labour Court for adjudication.
79. She interviewed Ms. van Rooyen at Lantern School to establish as a starting point, how her translation to a School-based Psychologist had come about. Despite a process having been followed by the respondent in the translation of Ms. van Rooyen, her findings were that the translation of Ms. van Rooyen was an irregular appointment.
80. The reason why the translation of Ms. van Rooyen was irregular, was due to no interviews for the translated post having been conducted, no advertisement for the post was published and no post establishment existed. Despite this, Ms. van Rooyen was translated, and her translation was backdated to 2010. Furthermore, Ms. van Rooyen was employed as a therapist prior to the introduction of OSD and as such, could not be translated to a post of a Psychologist.
81. She felt that the respondent was entitled to recuperate the monies paid to Ms. van Rooyen, despite Ms. van Rooyen disputing this. Correspondence in support thereof was sent to a Ms. Rosalind Keyter, who is employed as a Deputy Director: Transversal Support, for implementation.
82. She did not interview the person in the Department who was responsible for the translation of Ms. van Rooyen to the post of School-based Psychologist during her investigation. She did not consult any documents that were used in the process of the translation of Ms. van Rooyen.
83. She is not aware of any disciplinary action having been taken against the officials who were involved in the translation of Ms. van Rooyen in 2014.
84. She did not know why the respondent took five (5) years before conducting an investigation into the translation of Ms. van Rooyen, citing incompetence on the part of the respondent, as a possible reason, as the respondent was aware of the translation of Ms. van Rooyen.
85. She did not know what type of therapist Ms. van Rooyen was but agreed that Ms. van Rooyen was not a Speech Therapist, Physiotherapist or Occupational Therapist. As per her PERSAL inquiry document, Ms. van Rooyen was employed as an Education Therapist / Psychologist.
86. An Education Therapist who was conducting the work of a Psychologist could not be translated to a Psychologist, based on the OSD. One could only be translated into a post which the person had been previously occupying, prior to the introduction of the Collective Agreement and the OSD.
87. She conceded that nowhere in the Collective Agreement does it state there cannot be any School-based Psychologists, but the inference was taken that no School-based Psychologists were employed by the respondent, based on the Post Establishment policy of the respondent.
88. Based on the letter provided to the District Director by the headmaster of Destinata School, Mr. A B Lottering, confirming that Dr. Bannister was conducting the work of a Psychologist, she could not dispute that Dr. Bannister was carrying out the duties of a Psychologist.
89. She conceded that reference was made to School-based Psychologists in email correspondence between Gauteng Department of Education officials and in an audit document of the respondent.
The respondent’s third witness, Ms. Olivia Edwina Raphael, testified under oath that:
90. She is currently employed by the respondent as a Chief Education Specialist: Education Support, in the Sedibeng Region, Vereeniging. She has been employed by the respondent since 1993. She is the function manager of programmes relating to Inclusive Education, Special Schools and E-learning.
91. The Conceptual and Operational Guidelines for the Implementation of Inclusive Education: District-based Support Teams, which was implemented in 2005, serves as a guideline to establish a framework for a District-based support system (DBSS) for the education system to run properly and function efficiently. The District-based Support Team (DBST) is a platform where members with different specialisation skills can assist and network within the district, to resolve challenges and share their expertise.
92. The members of the District-based Support Team (DBST) comprise of specialists from within the district and include psychologists, institutional development specialists, heads of schools, administrative specialists and teachers from special schools.
93. Dr Bannister was recommended by the headmaster of Destinata School, to represent Destinata School on the DBST. Dr. Bannister is a remedial education specialist, employed by the respondent as a Chief Education Therapist. She does not know under which category of the limitations contained in the Collective Agreement, Dr. Bannister fits.
94. She conceded that she sent Dr. Bannister an email requesting assistance in terms of a cognitive assessment that was required to be conducted, requesting Dr. Bannister to conduct such an assessment.
95. There are no School-based Psychologists employed at schools by the respondent.
The respondent’s fourth witness, Makhivi Obed Moila, testified under oath that:
96. He is employed by the respondent as a Deputy Director: Organisational Development. He has been employed by the respondent for 24 years. He is responsible for the organisational structure of the Department and the allocation of Staff Support.
97. The processes for which he is responsible, are guided by the Personnel Administrative Measures (PAM) document. Staff requirements by schools are considered by his section and thereafter, the support staff is allocated through the Education Information management team and considered in terms of the availability of the Department’s budget.
98. The creation of posts differ from school to school, based on whether the school has learners with special needs, if so – how many learners, poverty, language and learners with disabilities. Information on learners is drawn from the Department’s Education Information Management System.
99. In terms of PAM, the Therapists Post Establishment for Special Schools, referring specifically to Destinata School, does not create any possibility for Dr. Bannister, to have been translated to the post of a School-based Psychologist, in terms of the Collective Agreement. The creation of posts is not joined by any HR functions.
100. At A.2.5.2 of PAM, a table of post provisioning norms apply in respect of education therapists, which is used to allocate school-based therapists. There are no provisions in the PAM document for School-based Psychologists, and as there are no such provisions in the PAM document, no such post can be created.
101. He acknowledged that the PAM policy document makes reference to the Collective Agreement 01 of 2012 and that reference is made in the Collective Agreement, to therapists, counsellors and psychologists.
102. Despite acknowledging that he did not disagree that Dr. Bannister was not a Speech Therapist, Occupational Therapist or Physiotherapist, he did not know what type of therapist Dr. Bannister was. He confirmed that no reference was made in the Collective Agreement (01/2012) to Senior Therapists. The Collective Agreement listed Senior Therapists on a different post level, as a Chief Therapist.
103. Contrary to his initial testimony, under cross examination, he conceded that the PAM document did make reference to School-based Education Psychologists (at B.3.5.6) but claimed that there is a policy in the PAM document that does not make provision for the creation of School-based Education Psychologists, suggesting that there appeared to be a contradiction between the Collective Agreement 01 of 2012 and the PAM document.
The respondent’s fifth witness, Amone Botha, testified under oath that:
104. She is employed by the respondent as an Office-based Education Psychologist in the Erkurhuleni North District. She has been employed by the respondent since 2012. Her responsibilities include Inclusive Education Support Services (IESS) and Education Operations and Support (EOS).
105. When one compares the duties of an Office-based (District) Psychologist and those of a School-based Psychologist, the Office/District-based Psychologists duties comprise of development, implementation, monitoring, training (district to school) and support, while School-based Psychologists only implement policies.
106. District-based Psychologists assess and evaluate learners with scholastic disabilities before they are considered for placement. A School-based Psychologist would not be required to carry this out at school level, as the assessment and evaluation has already been conducted and implemented. The School-based Psychologists then implement the recommendations of the District-based Psychologists.
107. She was initially employed at a school, where she held a position of a counsellor, thereafter, she was appointed to the post of a chief therapist.
108. The respondent advised her that there was no post available for her at the school where she was employed, and she was then seconded to the District Office. She applied for a post as a District-based Educational Psychologist and was appointed into the post after having successfully undergone the recruitment process.
109. The respondent only employs four (4) Education Psychologists at the district where she is employed, largely due to financial constraints. She has never seen and is not aware of any advertisements for School-based Psychologists. She is also unaware of any posts that have been created for School-based Psychologists. If School-based Psychologist posts existed, then she would not have been seconded to the District.
110. She did not know what work School-based Psychologists did. She did not know what category of therapist Dr. Bannister was considered to be. She agreed that the Collective Agreement limited therapists to be Occupational Therapists, Physiotherapists and Speech Therapists. She agreed that the three categories of therapists did not include Psychologists, which were separately categorised.
111. Prior to the introduction of the OSD, everyone was referred to and categorised as therapists. It was only upon the introduction of the OSD that the different career paths were separated into therapists (occupational therapists, speech therapists and physiotherapists), counsellors and psychologists.
112. She was aware that there were school-based Psychologists who were paid by the respective school’s School Governing Body (SGB). If a person wished to be employed by the respondent, they would be required to apply for the position of a District/Office-based Psychologist.
113. In respect of clause 2.2 of the Collective Agreement, that dealt with the objectives of the Collective Agreement, based on her qualifications, Dr. Bannister was an Educational Psychologist. The career stream of a School-based Psychologist and that of an Office-based Psychologist, were identical, being at R 392 079.00. There was no differentiation between the career stream of the two Psychologist posts.
114. She was not aware of any School-based Psychologists employed by the respondent. She did not know who Anzaret van Rooyen was.
115. She was translated from a Counsellor to a Chief Therapist in 2012. In 2016, she was seconded to the District and in 2019, she was appointed as an Office-based Psychologist at the Erkurhuleni North District.
116. The reason why she was seconded to the District in 2016, was because there were an insufficient number of learners and insufficient range of disabilities among learners at the school where she was initially employed as an Education Counsellor.
117. She was part of a historic group.at the time of the introduction of the OSD. This group was made up of employees who did not squarely fit into a specific category when the translation was required to be done from the previous dispensation. This historic group was referred to in the Collective Agreement at clause 5.1.12
The respondent closed its case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
118. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
119. I am required to determine whether, on an interpretation of Collective Agreement 01/2012, the applicant ought to have been translated to the post of Education Psychologist (school-based – Grade 2), when Collective Agreement 01/2012 was implemented, being 01 January 2013.
120. A dispute over the interpretation of a collective agreement exists when the parties disagree over the meaning of a particular provision and a dispute over the application of a collective agreement arises when the parties disagree over whether the agreement applies to a particular set of facts or circumstances.
121. Section 23 of the LRA provides that the collective agreement is binding on the parties to it and also takes precedent over the provisions of the Act for whole period of that collective agreement.
122. When interpreting collective agreements arbitrators should follow the judgment of the LAC in North East Cape Forests v SAAPAWU & others (2) 1997 (18) ILJ 971 (LAC) 1:
“A collective agreement in terms of the Act is not an ordinary contract and the context within which a collective agreement operates under the Act is vastly different from a commercial contract. Froneman DJP has indicated that the primary objects of the Act were better served by a “practical approach to the interpretation and application of collective agreements rather than by reference to purely contractual principles.” This is not to say however that the ordinary principles of interpretation of contract are never appropriate when interpreting and applying collective agreements. In Northern Cape Forests the Court merely stressed that the interpreter should ask the further question whether an interpretation yielded by these principles accords with the objectives of the LRA. The fact is that a collective agreement is a written memorandum which is meant to reflect the terms and conditions to which partiers have agreed at the time that they concluded the agreement. The courts and arbitrators must therefore strive to give effect to that intention. Thus the Courts frequently apply the “parole evidence‟ rule – that is that evidence outside the written agreement itself is not generally permissible when the words of the memorandum are clear – when interpreting collective agreements.”
123. In BIFAWU obo Members v Commission for Conciliation, Mediation and Arbitration and Others (JR306/13) [2018] ZALCJHB 303 (27 September 2018), the Court was required to consider whether a collective agreement was indeed ‘interpreted’ to give effect to the ‘true’ intention of the parties. The Labour Court reaffirmed the principle that, when interpreting collective agreements, arbitrators must strive to give effect to the intention of the agreement and must give the words used by the parties their ordinary and popular meaning if no ambiguity is present. In respect of the interpretation of the Recognition Agreement, the Court held that the Commissioner’s interpretation was fair as it gave effect to the words of the agreement, i.e. their ordinary and popular meaning in the absence of ambiguity. Thus, the Commissioner had properly applied his mind to the issues before him.
124. At clause 2.2 of the Collective Agreement, the objectives include:
“To introduce an occupation specific remuneration and career progression dispensation (OSD) for Physiotherapists, Speech Therapists, Occupational Therapists (hereafter referred to as Education Therapists), Counsellors and Psychologists, employed in public education.”
125. The applicant testified that she was qualified as a Psychologist, that she carried out the scope of work of a Psychologist, that she was registered as a Psychologist with the relevant statutory authority (HPCSA) since 1994. She was permanently employed by the respondent since 01 July 2010.
126. The applicant was referred to as a School-based Educational Psychologist by her peers and employer in correspondences, audits and by virtue of the requests made to her by her peers to conduct duties of a Psychologist, such as cognitive assessments, re-evaluations, diagnoses and therapy.
127. Although she was registered as a Psychologist, and she carried out the duties of such, the structural dispensation prior to the introduction of OSD, categorised Speech Therapists, Occupational Therapists, Physiotherapists, Counsellors and Psychologists all as “Educational Therapists”.
128. Based on this categorisation, her job title as contained in PERSAL, referred to her as a Chief Education Therapist. That Dr. Bannister was categorised as a Chief Education Therapist, and that her job title listed on PERSAL, is not in dispute. However, as no separate category for psychologists was provided for, psychologists were categorised as therapists.
129. It was only upon the introduction of the OSD as contained in the objectives of the Collective agreement (at clause 2.2), that the three categories of therapists were separately classified to counsellors and psychologists.
130. Every one of the respondent’s witnesses testified that the applicant could not be translated from a therapist to a psychologist, as the OSD did not provide for the translation from a therapist to a psychologist, yet not one of these witnesses, when they were repeatedly referred to the Collective Agreement, were able to confirm what type of therapist, or into which category of therapist, the applicant fell.
131. Ms. Dorothea Botha confirmed that historically, prior to the introduction of OSD, and in terms of specific approvals, Psychologists were appointed at schools. Ms. Barbara Mahlangu testified that she could not dispute that Dr. Bannister was carrying out the duties of a Psychologist.
132. Ms. Olivia Raphael testified that although she didn’t know under which category of therapists, Dr Bannister fell, she had required her to assist with assessments that could not have been carried out by a therapist, but only by a psychologist.
133. Mr Obed Moila testified that despite acknowledging that he did not disagree that Dr. Bannister was not a Speech Therapist, Occupational Therapist or Physiotherapist, he did not know what type of therapist Dr. Bannister was.
134. Ms. Amone Botha testified that in respect of clause 2.2 of the Collective Agreement, that dealt with the objectives of the Collective Agreement, based on her qualifications, Dr. Bannister was an Educational Psychologist.
135. Having considered the testimony of the applicant and that of the respondent’s five witnesses, it is evident that prior to the introduction of the OSD, Dr. Bannister did not carry out the duties of a physiotherapist, occupational therapist, speech therapist or counsellor, but instead fulfilled the duties and scope of work of a School-based Psychologist. The respondent’s reliance on the job title of the applicant, being that of a Chief Education Therapist, emanated from the conjoined categorisation of therapists, counsellors and psychologists, prior to the OSD.
136. One of the unambiguous objectives of the Collective Agreement (at clause 2.2) is to introduce an OSD for therapists, counsellors and psychologists. This objective clearly differentiates between the categories that were previously combined.
137. The interpretation of the collective Agreement in respect of the translation of employees, relies on specific criteria to be met. This reliance is not subjective but as provided for in both the BIFAWU and North East Cape Forests judgements, is “…meant to reflect the terms and conditions to which partiers have agreed at the time that they concluded the agreement” and to “… give effect to the ‘true’ intention of the parties”.
138. The applicant claims that she ought to have been translated to the post of Education Psychologist (school-based – Grade 2), when CA 1/2012 was implemented, being 01 January 2013. The Translation table C3.2 of Annexure C, clearly provides that for an employee to have been translated to the post of Educational Psychologist: Grade 2, on salary levels 8 – 11, they would have been required to meet the following criteria: (1) being registered as a psychologist, (2) perform the duties of a psychologist and (3) on 30 June 2010, had 8 or more years’ relevant service, but less than 16 years relevant service after registering as a psychologist.
139. Measured against the criteria of the translation table C3.2, at the date of the introduction of the OSD, the applicant was on salary level 8, registered as a psychologist, performed the duties of a psychologist, but failed to meet the third criteria, being that on 30 June 2010, she had 8 or more years’ relevant service, but less than 16 years relevant service after registering as a psychologist. By her own admission, the applicant testified that she was only employed with the respondent from 01 January 2010, which was supported by her PERSAL inquiry service record.
140. However, in terms the Translation table C3.1 of Annexure C, for an employee to have been translated to the post of Educational Psychologist: Grade 1, on salary levels 8 – 11, they would have been required to meet the following criteria: (1) being registered as a psychologist in the relevant registration field, (2) perform the duties of a psychologist and (3) on 30 June 2010, had less than 8 years’ relevant service after registration as a psychologist (in the relevant registration field).
141. In order to finally dispose of the dispute, based on the criteria to have been translated to the post of Educational Psychologist: Grade 1, the applicant met these and ought to have been translated to the post of Educational Psychologist: Grade 1.
142. Despite the respondent’s submissions and arguments that no School-based Education Psychologists were employed at schools due to financial or budgetary constraints, no evidence was led to suggest that this was a criterion contained in the Collective Agreement.
143. Insofar as the translation of Ms. van Rooyen to the post of a School-based Educational Psychologist: Grade 1, evidence was led by Ms. van Rooyen to suggest that an official process was conducted prior to her translation to the post.
144. I am convinced that the respondent’s suggestions that the translation of Ms. van Rooyen was unauthorised, irregular, incorrect and/or erroneous, is misdirected, as Ms. van Rooyen was not empowered and/or authorised to approve her own translation. She was translated after the translation measures of the Collective Agreement were interpreted and applied by the respondent. The translation of Ms. van Rooyen supports my finding that the applicant should similarly be translated to the post of a School-based Educational Psychologist: Grade 1.
145. Although the translation of Ms. van Rooyen is not before me to determine, the respondent’s argument that the “erroneous and unauthorised” translation Ms. van Rooyen was in the process of being corrected, albeit it eight years after the translation and almost three years after the alleged investigation into the translation, I am persuaded that this is an attempt by the respondent to reverse its own interpretation and application of the Collective Agreement in the instance where Ms. van Rooyen was properly translated.
Award
1. Based on an interpretation of Collective Agreement 01/2012, the applicant ought to have been translated to the post of Education Psychologist (school-based – Grade 1), when Collective Agreement 01/2012 was implemented, being 01 January 2013.
2. The respondent, the Gauteng Department of Education, is ordered to translate the applicant, Dr. Marinda Bannister to the post of Education Psychologist (school-based – Grade 1) in accordance with the provisions of Collective Agreement 01/2012, effected on 01 January 2013.
3. The respondent is further ordered to pay the applicant retrospectively in accordance with Collective Agreement 01/2012 in respect of the post: Education psychologist (school-based – Grade 1) inclusive of all applicable increments and benefits.
4. No order of costs is made in respect of these proceedings.