12 December 2024 – ELRC528-24-25GP

IIN THE ELRC ARBITRATION
BETWEEN: ELRC 528-24-25GP

Dr GENE ERASMUS “the Applicant”
and

DEPARTMENT OF EDUCATION – GAUTENG “the Respondent”

ARBITRATION AWARD

Case Number: ELRC528-24-25 GP
Date of award: 05 December 2024
Gcina Mafani
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1.1. The arbitration was scheduled for the 29th of October 2024 and proceeded as such. Both parties were present, the applicant, Dr Gene Erasmus was represented by Ms. Latoya Duvenhage of De Wet Oosthuizen Inc and the First Respondent, Department of Education: Gauteng North District was represented by Mr. Parapara Mokgothadi the Employee of the Respondent and Mr. Vusi Ndlovu of Gauteng Department of Education Ekurhuleni.

1.2. The arbitration was held virtually.

1.3. The arbitration was concluded on the 29th of October 2024.
1.4. The Applicant commenced with his evidence.

1.5. Before the start of the arbitration process, the Applicant submitted her bundle of documents which was later marked Exhibit “B1 and B2, the Respondents also submitted their bundle of documents which was later marked Exhibit “A”.

1.6. The parties agreed to file their closing arguments by close of business on the 5th of November 2024.

1.7. The submissions of both parties were carefully considered, but will not be repeated herein as contents basically mirror what was put to the parties during the leading of evidence and cross examination in the arbitration.

PRELIMINARY ISSUES
2.1. The parties had not conducted the Pre-arb, the Arbitrator allowed the parties to proceed with the pre-arbitration meeting. The parties agreed that there were no prospects of settlement in this matter.
ISSUE TO BE DECIDED BY THE ELRC
3.1. The Applicant submitted that the ELRC is required to decide whether the Respondent’s decision not to appoint the Applicant as a grade 3 level Education Psychologist was done arbitrarily.
3.2. The Respondent submits that the ELRC is required to decide whether the decision was made arbitrarily, however it submits that it did not act arbitrarily, it acted in accordance with the provisions of the Collective Agreement 1 of 2012 which was signed on the 29th of August 2012.
3.3. The Applicant seeks to be remunerated according to the correct salary grade and notch; she further seeks that such remuneration be effected with retrospective effect from the date of appointment 1st of January 2020.

4.BACKGROUND

4.1. The applicant herein is an Education Psychologist employed by the Respondent and has been employed in such capacity since the 1st of January 2020. In addition to her current position, she has been employed by the Respondent since 1991, initially in the capacity of an Educator, Head of Department, and thereafter a Chief Education Specialist.

4.2. The Applicant responded to an advertisement posted by the Respondent regarding 18 positions for Education Psychologists. The Applicant having been registered with the HPCSA as an Educational Psychologist since 1998, and having 25 years of experience in teaching, reasonably believed that she would be appointed as a grade 3 level Education Psychologist, only to be offered the position of a grade 1 level Education Psychologist.

4.3. After having signed the acceptance of the new post. The Applicant wrote a letter to the employer complaining that with her experience she believed that she should have been graded 3. She did not get satisfactory responses.

4.4. Dissatisfied with the process the Applicant referred a dispute to the ELRC for unfair labour practice.

4.5. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186(2)(a) of the Labor Relations Act 66 of 1995 (LRA.) Given the above, the Commissioner is required to determine whether the respondent acted arbitrarily in placing her on grade 1 upon her appointment to the advertised position.

APPLICANT’S EVIDENCE AND ARGUMENTS
Dr GENE ERASMUS

5.1. The Applicant testified under oath and stated that she is an Educational Psychologist employed by GPEDU.
5.2. She has been employed by the Department since 1991 she has 33 years’ experience.
5.3. On the 1st of January 1991 she was appointed as an Educator, she got promoted in 1994 to HOD Educational Guidance
5.4. On the 1st of January 2017 she was appointed as the Senior Educational Specialist inclusion and special schools’ unit at Gauteng East District.
5.5. On the 1st of January 2020 she was appointed as the Educational Psychologist by Ekurhuleni South District.
5.6. On the 1st of November 2020 she was appointed as the Educational Psychologist Gauteng North District.
5.7. On the 1st of October 2024 she was transferred as the Educational Psychologist to Ekurhuleni North District where she is currently.
5.8. She testified that her belief that she would be appointed as a grade 3 level Education Psychologist was supported by the provisions of Collective Agreement 1 of 2012, which according to annexure C indicated that the appointment requirements for grade 3 level Education Psychologist were:
(a) A Master’s or Doctorate Degree in Educational Psychology.
(b) Current registration with the HPCSA; and
(c) 16 years relevant experience.
5.9. The Applicant having complied with such criteria was accordingly supposed to be appointed as a grade 3 level Education Psychologist.
5.10. Furthermore, upon receipt of an offer of appointment by the Respondent she alerted the Respondent to the error in her grading, and relying on the provisions of the offer itself, namely that the Respondent would rectify any errors contained therein and pay any additional monies due to the Applicant, she alerted the Respondent to the error reasonably believing that she would be offered a position as a grade 3 level Education Psychologist. Accordingly, the Applicant at all relevant times accepted the post however not the salary that was reflected on the offer of appointment. However, to the Applicant’s dismay the Respondent has refused and or neglected to do same to date of this dispute.
5.11. Further to the above, in 2022 the Respondent posted an advertisement for 4 posts for Education Psychologists, however in this advertisement, only grade 1 level posts were available, and the prospective applicants were not required to have any relevant experience.
5.12. The Applicant further submitted that the appointment requirements in Collective Agreement 1 of 2012 were applicable, and not the requirements for progression, as she was not being progressed from her post, but rather being appointed to another post.
5.13. The Applicant submitted that the Respondent should have included all its alleged requirements in the advertisement and are accordingly bound to the requirements contained in the advertisement. Furthermore, the Respondent was willing to take the Applicant’s teaching experience into consideration for purposes of appointment and should accordingly have taken same into consideration for purposes of deciding on the applicable grading.

RESPONDENTS EVIDENCE
JAMES MAKHALIMELA (Assistant Director HR Ekurhuleni South District)
6.1. The Respondent led the evidence of one James Makhalimela who is the Assistant Director HR who read the advertisement into record “An appropriate, recognised Doctorate degree or Master’s degree in Educational Psychology plus 7 years teaching and or educational Psychology experience. Current registration with HPCSA as an Educational Psychologist. Proven Management and leadership abilities. Knowledge and understanding of all major education and psychology legislation and policies…”
6.2. He testified that a person who gets appointed for the first time gets appointed on grade 1. He testified that the issue of grading is regulated by experience and performance in the post. This is specified in the collective Agreement 1 of 12 page 2 at 2.3.1
6.3. Objectives
“To give effect to paragraph 4 of PSCBC Resolution 1 of 2007, Agreement on improvement in salaries and other conditions of service for the financial years 2007/2008 to 2010/2011
To introduce an occupation specific remuneration and career progression dispensation (OSD) for Physiotherapist, Speech therapist, Occupational Therapist (hereinafter referred to as Educational Therapist) counsellors and Psychologists employed in public education.
To provide within the OSD for:
(i) Career pathing opportunities based on competencies, experience, and performance
(ii) Pay progression within the limits of the relevant grades (scales) based on performance
(iii) Grade progression, where applicable based on performance.
(iv) Recognition of appropriate experience for the purposes of grade progression and
(v) Recognition of performance for accelerated progression to higher grades and pay progression within a salary grade……”
6.4. He testified that the post was a promotional post meaning a person would be moving from a lower post to a higher post. This is a post where a person is already in the salary notch of post level 5, then they give the incumbent a maximum adjustment of 6% when they get appointed.
6.5. He testified that the applicant was appointed as SES (Senior Education Specialist) in 2019 to post level 3. Educational Psychology is post level 5. She moved from post level 3 to post level 5. Salary scales have 3 categories. The applicant was a first-time appointee in post level 5 so when she got appointed in the advertised post, she automatically starts at grade 1, which is the entry level for post level 5.
6.6. He further explained that as a first-time appointee in the post, she does not have experience in this post, and she does not have the performance assessment, that is why she was graded 1.
6.7. For the Applicant to qualify to be placed on grade 3, she must meet grade 2 requirements which is 10 years performance in the post and 16 years’ experience in the post
6.8. He testified that the Applicant does not meet the requirements to be progressed to grade 2 or 3 because she was only appointed in 2020
6.9. He testified that the Respondent was not disputing the Applicant’s qualifications, he reiterated that she was placed at entry level because it was a first-time appointment, first appointments cannot be accelerated to second or third grade.
6.10. He reiterated that the Applicant qualified to be appointed however, she could only be placed on the entry level grade 1 of Post level 5 regardless of her previous experience as a teacher. Experience in teaching does not count towards the experience required for appointment to a higher grade of Educational Psychologist. She could not be graded outside the post.
6.11. The applicant’s Attorney submitted under cross examination that the advert did not indicate that this was a promotional post, further that a reasonable person would have expected to be placed either on grade 1 or 2 or 3 because the advert was not specific to say how the Department would differentiate on the salary range.
6.12. The witness responded that the Applicant had an opportunity to ask if anything about the advert was not clear. The advert cannot have all the details.
6.13. The Applicant’s Attorney further put it to the witness in cross examination that the Department’s policies were not reflected in the advert, the respondent should be bound to the requirements in the advert and not in policy.
6.14. The witness responded that the Applicant agreed and signed the terms and conditions of the post, and she should have clarified the issues of grading before accepting the appointment.
ANALYSIS OF EVIDENCE

7.1. According to Grogan, Workplace law p361
7.2. “Disputes over the interpretation or application of collective agreements may be referred for arbitration in terms of the dispute-resolution provisions of the collective agreement itself, or to the CCMA in terms of Section 24(5) of the LRA. A dispute over interpretation of a collective agreement exists when the parties disagree over the meaning of a particular provision.
7.3. …. a dispute over the application of a collective agreement arises when the parties disagree whether the agreement applies to a particular set of facts or circumstances. However, the dividing line is not always clear
7.4. …The arbitrator in NUMSA vs VWSA 2002 interpreted the agreement by applying the common law principles of interpretation of contract. Some arbitrators hold that such an approach is incorrect because collective agreements are sui generis the object of the interpreter should rather be to ensure that the collective agreement effectively ensures sound industrial relations It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour relations Act (the LRA) was committed by the Respondent. The Applicant must convince the arbitrator that the conduct of the respondent amounted to an unfair labour practice as defined and distilled from the applicable jurisprudence and as envisaged in the law.
7.5. In Food & Allied Workers Union Vs CCMA & others (2007) ILJ 382 (LC) [31]-[35] he Court stressed that the one interpreting should ask further questions 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 the parties have agreed at the time they concluded the agreement. The courts and arbitrators must strive to give effect to the intention
7.6. The Applicant argued that the Respondent had acted arbitrarily in placing her on grade 1 when she was appointed on the 1st of January 2020 at Ekurhuleni South District and then at Gauteng North District.
7.7. In its closing arguments the Respondent defined the Pay Progression cycle as meaning a continuous period of 12 months, running from 1 April to 31 March of the year following the next year for the first-time participants and 12 months running from the 1st of April to 31st of March of the next year, for an employee who is a first-time participant. The Applicant was therefore a first participant in 2020 and the pay progression started from the 1st of April 2020 and ended on the 31st of March 2021.
7.8. He argued that “Grade progression and accelerated grade progression for OSD employees means progression from lower grade (salary scale) to the next higher grade (salary scale) attached to an OSD post, based on the specific requirements for grade progression and accelerated grade progression in the OSD post, as contained in the relevant OSD.
7.9. He argued that the Specific requirements for grade progression are stipulated in terms of Annexure C of the circular 1 of 2012 pages 71, 75 titled Career Stream Office based Education Psychologist, in which the Applicant first participated in 2020.
7.10. This argument was not disputed.
7.11. The Applicant’s argument at arbitration was that she believed that she ought to be placed in grade 3 because of her experience which exceeded what was required in the advert. The Applicant has not produced any evidence to back up her argument and is unable to refer to any policy which supports her view that she should have been appointed at grade 3.
7.12. The Respondent argued further that for the applicant just to leap to grade 3 would be a deviation from the collective agreement

7.13. Therefore in terms of the interpretation as argued and mentioned above, when the Applicant was appointed on the 1st of January 2020, she had not been in the position of the OSD / Psychologist for a period of seven years, and accordingly had no recognizable experience to qualify her for a higher grade in the post (Education Psychologist) applied for.

7.14. The Applicant failed to prove that the respondent committed an unfair labour practice relating to promotion in appointing her to the position of Educational Psychologist, grade 1 on the 1st of January 2020.

7.15. I therefore make the following award