In the matter between

J.G. HARVEY

Applicant

and

DEPARTMENT OF EDUCATION WESTERN CAPE Respondent

ARBITRATION AWARD

________________________________________________________________

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

The arbitration took place at the offices of the Department of Education, Western Cape in Adderley Street, Cape Town on 11 November 2010. The applicant, Mr. Justin Griffiths Harvey (Harvey), was represented by Mr. R. Ahmed, an official with NAPTOSA. The respondent, the Department of Education, Western Cape (the respondent), was represented by Ms. Nokuthula Mdlalose, a senior labour relations officer, Ms. Bukiwe Ndlondlo, a labour relations officer and Ms. J. Wiliams,

THE ISSUE IN DISPUTE

2 The issue in dispute is the interpretation and application of Collective Agreement 1 of 2008.

SUMMARY OF EVIDENCE AND ARGUMENT

Harvey and Glenn Douglas Maclons (Maclons), an IMG manager in the respondent’s Metropole North district testified under oath for the respondent.

Mr. Harry Wyngaard (Wyngaard), a deputy director testified under oath for the respondent.

5 Both parties handed in their respective bundles of documents. No objections to any documents were recorded.

THE EVIDENCE FOR THE APPLICANT

Harvey has been in education since 1985 when he started his career in Johannesburg. Promotion posts had taken him to various provinces and he had worked in the Western Cape between 1992 and 1995.

For the last 7 years he was the principal at Lowveld High in Mpumalanga.

He had mapped out his career path early on. He wants to move up as high as he can according to his abilities. Hence he had applied for a number of these posts so that when he applied for the IMG post he understood he was applying for a promotion post.

Harvey had applied for the IMG post a week before the closing date for the application which was 20 January 2010. He could not recall when he had seen the advertisement.

Harvey had subsequently not been informed of any change in the advertisement and went for an interview on 17 February 2010. For this interview the respondent had paid R6,000.00 (six thousand rand) for Harvey to fly down to Cape Town.

On 26 February 2010 Harvey was informed telephonically that he had been approved for the IMG post and whether he could be sent the letter of offer.

Harvey telephoned the chairperson of the SGB of Lowveld High and she congratulated him.

He also informed numerous friends and members of his family.

Harvey received the letter of offer on 1 March 2010 and it confirmed the appointment. He picked up immediately that the salary range contained therein differed from that in the advertisement.

Harvey then telephoned the respondent’s recruitment and selection centre regarding this discrepancy and received differing answers from various people. One of these, Ms. Nazlie Solomons (Solomons) informed him that his salary would be that of a principal plus 6 notches. Solomons did say that she would have to get clarity though.Harvey was very anxious and also put the same question to Wyngaard and Mr. Norman Daniels (Daniels).

Wyngaard had informed Harvey that the post he had applied for was not a promotion post.

Harvey heard that a mistake had been made and that an erratum had been placed on the respondent’s website and in one of the national newspapers.

Wyngaard had informed Harvey that he should have been informed of this at the interview.

Daniels was sympathetic and told Harvey they would have to sort out the problem and that someone would get back to him by 5 March 2010.

One, Mrs. Herter at the respondent’s, asked Harvey to submit documents in respect of his relocation e.g. his salary. He had also sent that to Solomons in order that his salary would be calculated.

In early April Harvey realized that the respondent had omitted to take into accountwhen calculating his salary the income he had received in terms of section 38 of the South African Schools Act in respect of his supervising the governing body and teachers at Lowveld High

Harvey was not concerned that he would not get the salary he had anticipated as this was his fourth promotion and he had never had a problem not getting a salary that did not reflect his promotion.

So Harvey did not withdraw his application for the post. On an emotional level he had already notified many people of his success in getting the post. These included family and friends and colleagues, as well as the SGB, the staff and learners at Lowveld High and the education department. It was becoming common knowledge that a decision had been made.

Harvey had no reason to believe that he would not be paid according to the rank he had been promoted to. He had no reason to believe this would be different to his previous promotion experiences.

He got the impression that sense would prevail and that no-one in their right mind would expend R6,000.00 (six thousand rand) to fly someone down for a demotion.

Solomons had telephoned Harvey on 5 March 2010 and had informed him that his salary would be R531973,00 all inclusive.

He thanked her and requested that she forward that to him in writing.When Harvey had not received such written confirmation of his salary from Solomons and because he and his wife were flying to Cape Town regarding their arrangements for renting a house, he sent her an email on 9 March 2010 for such confirmation.

Solomons telephoned Harvey on 9 March and asked him who had told him that his salary would be R531973,00. He told her that she had.

Solomons then said that she had not told Harvey that but had said that his salary would be R431973,00

When he then asked Solomons what his basic salary would be she said that he should work it out himself.

At that stage Harvey’s arrangements for going to Cape Town were already in an advanced stage. He had resigned from the numerous organizations where he held office and membership. He had already booked his flight and his wife had resigned from her work.

Harvey did not have any knowledge of what an all inclusive package meant as no one at the respondent’s had shared this with him, but he still thought that the respondent would look after him regarding the promotion and pay him accordingly.

The respondent had a good reputation and Harvey thought that if any one province would get this right it would be the respondent.It would have been humiliating for everybody.

In August 2010 Harvey subjected himself to a polygraph test which confirmed that he was telling the truth when he said that he had heard Solomons say that his salary would be R531973,00

Harvey was aware of resolution 1 of 2008 but was not very knowledgeable about it.

Maclons has been an IMG manager in the respondent’s Metropole North district since 2009. He was a principal at post level 4 and had applied for the IMG manager post at level 5 thinking it was a promotion.

After Maclons had made some amendments to his letter of offer he signed it and forwarded it to the respondent. He thereafter did not receive any correspondence in return from the respondent.

THE EVIDENCE FOR THE RESPONDENT:

Wyngaard has been a deputy director for 8 years and is familiar with all collective agreements relating to salaries. He is responsible for the implementation of office and institution based educators salaries within the respondent in the Metropole Northeducation district.

The middle management all inclusive salary would be established in a salary range determined by the National Education Department.

Prior to the introduction of OccupationalSpecificationDispensation (OSD) salary level 10 was non-MMS and salary level 11 was MMS.

These levels were thereafter merged and one would move to a middle management salary package upon attaining a certain salary level within the range.Within that package the employee could then structure the package from the various benefits available.

In terms of the calculation of Harvey’s salary as reflected in the calculations
of Solomons dated 4 March 2010 (see page 47 of the respondent’s bundle of documents) Harvey’s salary would be R431 973,00.

According to the salary scales, the minimum and maximum salary of a principal was higher than that of the IMG manager. Harvey’s placement into the position of IMG manager did not constitute a promotion.

This was determined when reading the scales at page 13 of the respondent’s bundle of documents in conjunction with collective agreement 1 of 2008.

While the respondent had placed an erratum in the newspapers in which the post had been advertised it would not affect Harvey as the fact remained that Harvey’s change was not a promotion.

Wyngaard had verified the document at page 47 of the respondent’s bundle of documents thereby confirming his salary.

Wyngaard had in fact explained to Harvey upon his enquiry that emanated from the discrepancy in the salary range in the letter of offer that this was not a promotion.

Collective agreement 1 of 2008 provides for promotion where an educator is appointed from a post with a salary scale where the minimum and the maximum of the applicable salary scale is lower than the minimum and the maximum of the salary scale attached to the post to which one is appointed. In such instances the educator’s salary has to be improved by at least six notches.

In this case both the minimum and the maximum of Principal (P4) salary scale is higher than that of IMG’s, so that is why the appointment of Harvey is not regarded as a promotion but a downgrade in terms of Collective Agreement 1 of 2008.

Wyngaard was sure that the determination of salaries was conveyed to the respondent’s employees through workshops to which all employeeswere invited.

The purpose of the collective agreement and the interpretation and application thereof as aforesaid is to align the remuneration structures of non classroom based educators with classroom educators in order to ensure that the latter category is encouraged to remain in the classroom instead of aspiring to supervisory or management positions.

In so doing skilled and highly experienced educators would be encouraged to remain in the classroom.

Collective agreement 1 of 2008 did not replace collective agreement 3 of 2006. The latter applied where the grading of the school actually went up and has no relevance to collective agreement 1 of 2008.

ANALYSIS OF THE EVIDENCE AND ARGUMENT
It is evident from the referral document in this matter that the applicant has referred a dispute regarding the application and interpretation of collective agreement 1 of 2008.

The applicant argues that Solomons had informed him that his salary would be R531,973,00 and therefore that his salary range should be that as reflected in the advertisement in terms of which he had submitted his application around 20 January 2010. This is because the applicant argues that it was unreasonable that he be expected to have read the errata and also because Solomons had committed the respondent to the salary. In this regard I am of the view that given what the salary of Harvey had been worked out to be as reflected in the document at page 47 of the respondent’s bundle of documents on 4 March 2010 it is unlikely that Solomons would have said what Harvey swore he had heard.. Even so, it must be borne in mind that Harvey had been informed by Wyngaard on 1 March 2010 that the post was not a promotion post.

The entire body of evidence suggests further that Harvey had pressed on with his quest for something which by 1 March 2010 he reasonably had an idea was not a promotion.

Regarding the veracity of the evidence of what Solomons had said and the subsequent polygraph undertaken by Harveyit is not certain what Harvey argues. It is not logical that what Harvey had heard Solomons say is evidence of what Solomons actually had said. The argument of the respondent is simply that Harvey was mistaken in what he had heard. This need not mean that Harvey was being untruthful when he said what he had heard. If one accepts the validity of a polygraph test then one would be able to argue cogently that such test would not be able to record a mistake as an untruth but instead would confirm that Harvey had heard what he had heard.

Notwithstanding the aforegoing I am of the view that it is almost disingenuous of Harvey to argue that it would have been humiliating for him to have withdrawn his application on 1 March 2010 when he became aware of the discrepancy in the salary range. When one bears in mind that Harvey had literally had only a weekend within which to inform the people he said he had, the likelihood of his having informed so many people that it would have been humiliating for him to withdraw his application is diminished.

In fact Harvey’s testimony in respect of his contentions about humiliation was firstly that it “was” humiliating for him, not that it “would have been” humiliating for him. It was only after persistent attempts at clarification by the commissioner at the arbitration that Harvey testified that it “would have been” humiliating.

Although I cannot recall any testimony from Harvey in respect of his desire to conclude his career in education in the Western Cape that is a clear point that Harvey makes in his argument that he had had this long term desire to end his teaching career in the Western Cape.

A motivation of this nature is one of the most powerful driving forces to in fact take a job. In many instances the location of oneself in a particular geographical area can outweigh even the remuneration that one would get in a particular job. I am simply pointing out that it is not necessarily illogical that one would take up a position for a lesser salary than one had earned previously.

Regarding the contention of the applicant in his argument that Maclons had had the same experience as Harvey viz. that he had hastily informed all and sundry of his appointment is not in fact clear from the evidence of Maclons. The only thing that is in fact clear from the testimony of Maclons and the same as that of Harvey is that both of them had in fact signed acceptance of the offer for the position knowing the salary expressed in those offers. In this regard Maclons should not have been surprised by the fact that he had received no response from the respondent as his insertions on the letter of offer would be of no force and effect unless initialed by himself and the respondent.

In respect of Harvey the evidence through his own testimony is again clear that he understands the importance of getting conveyed to him in writing that which was told him. Most importantly to have something in writing is to ensure that one has the proof thereof and thus the certainty thereof.

Further on this note it is significant to be alive to the fact that it is Harvey who suggests that Solomons had expressed herself in a particular way. For Harvey then to undergo a polygraph test and for him to suggest that it was incumbent on the respondent to call Solomons to defend her version is perhaps illogical. It would surely be more appropriate for Harvey to ensure that Solomons should testify under oath in order that he may in fact test her version in that way.Again there is no corroborating evidence even of Solomons in fact having made the phonecall, a fact that Harvey could have established through testimony by Solomons or perhaps even a telephone record to such effect. In fact therespondent had relied on the document at page 47 of its bundle and the testimony of Wyngaard thereto to achieveits end. Had there been an objection by the applicant to this document then the respondent would have done well to call Solomons to testify on the point.

In fact the testimony of Wyngaard was that he had verified the content of page 47 of the respondent’s bundle, leaving me to conclude that even if Solomons had said to Harvey that his salary would be R531973 that that would clearly have been a mistake. I am however of the view, as stated, that there is insufficient evidence for me to conclude that Solomons had in fact or on a balance of probabilities said that to Harvey.

It is in fact probable that Harvey himself, upon having been informed by Solomons as he testified, that his salary would be that of a principal plus 6 notches, then made the calculation himself and in so doing arrived at a likely salary.

I have already dealt with the polygraph test undertaken by Harvey and his argument thereto.In addition the probabilities are that Harvey would have undergone a test to prove what he had heard. The more pertinent test for him to have undergone would have been whether Solomons had in fact said to Harvey that he would earn a salary of R531973.

It is of note that in his argument Harvey in the main, if not exclusively refers to numerous unfair labour practices perpetrated by the respondent. I fail to see the relevance of this argument. Harvey had referred a dispute of the interpretation and application of a collective agreement 1 of 2008. In this regard the only logical interpretation and application thereof is that found in the explanation through the testimony of Wyngaard.

Even if this matter were to be that of an unfair labour practice the allegation of Harvey is that the respondent had acted negligently or unreasonably in not dealing with the matter appropriately and otherwise to the manner in which they had in respect of other applications for the post of IMG manager, such as for instance, as it had done in the case of Maclons.

While I am in agreement with the applicant that the respondent may have acted differently there is clearly scope for Harvey himself to have acted differently. While the respondent is aware of the problems surrounding this move of a principal to one of IMG manager it is clear that the respondent had attempted to rectify the mistake which had given rise to this dispute through the placement of the erratum. In this regard I am satisfied that the placement of the erratum suffices for the purposes of such correction and alert. Notwithstanding such correction of the error in the advertisement, the respondent then also informed Harvey thereof on 1 March 2010 and informed him that the post he had applied for was not a promotion post.

The evidence shows that Harvey thereafter focused in the main on what his salary would be and contests the matter at that level and not at the level of the salary range and the discrepancy around that, homing in on what he testified he had heard Solomons say to him.

At that point Harvey had already been told by the only person who could be considered an expert on the subject, Wyngaard, that he had not applied for a promotion. Having applied for something which is not a promotion he should have concluded that he would not be receiving a salary reflecting a promotion. He, having heard Solomons say to him that his salary would be R531,973,00,should have known that Solomons had given him the incorrect information or that he had heard her incorrectly.

What is more, is the fact that the evidence shows that Harvey himself ought to be a highly skilled individual in labour relations given the fact that he held a reasonably senior trade union position, that of chairman of NAPTOSA in Mpumalanga. His own testimony suggests further that he is aware of the deficiencies in the various education departments, hence his comparative conclusions regarding the competence of the respondent to the other provinces in dealing with the matter of his salary.

Notwithstanding the aforesaid, of major concern is the fact that Harvey’s testimony is generally uncorroborated. In particular there is no evidence of the people he said he had informed and who informed him that they would inform others actually havingdone so. Even his testimony of his having informed the Department of Education in Mpumalanga on the morning of 1 March is uncorroborated. There is in fact no evidence before me of the means of his communication with the Department of Education in Mpumalanga. One can however conclude that Harvey would not have communicated this telephonically but in writing.

His testimony in this regard is typical of most of his overall testimony in that it is tailor-made to fit various time frames and events and is uncorroborated. Further in this regard even Harvey’s wife had not been called to corroborate his testimony of her resignation and timing thereof.

In the final analysis and having considered all the evidence presented at this arbitration I find most plausible and acceptable the testimony of Wyngaard in respect of the calculation of Harvey’s salary through the interpretationand application of the collective agreement. I find also that Harvey had had sufficient opportunity to reconsider his position in respect of the acceptance of the post of IMG manger and without the fear of humiliation to himself. I find further that Harvey had in fact accepted the offer of the respondent as contained in the written offer communicated to him on 1 March 2010.

I find too that the respondent had taken sufficient steps to and had alerted Harvey sufficiently timeously of the fact that he was not applying for a promotion post.I find further that the respondent had conducted itself in a manner where it had always attempted to serve well the interests of Harvey. I find that the respondent had not conducted itself in a manner provided for in terms of section 186 (2)(b) of the Labour Relations Act 66 of 1995 as amended.

Cognizance must be taken of the testimony of Wyngaard that the respondent has tried to deal with the matter to such an extent that the submission was drafted to the Head of Department asking for an approval to add three notches to the IMGs’ salaries whose appointments are not a promotion but a downgrade.

As testified by Wyngaard the Head of Department did not approve that recommendation as that would not be in line with the provisions of Collective Agreement, 1 of 2008 which is a national agreement.

Harvey is clearly not the only IMG manager experiencing this problem as can be gleaned from the testimony of Maclons.

In conclusion, it is abundantly clear that this matter of the salary dispensation of the IMG managers cannot be dealt with by the respondent but only at the national level in the Department of Education.

AWARD

83 This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended is dismissed.

COMMISSIONER: L. MARTIN