IN THE EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: ELRC 487-24/25 FS
IN THE ARBITRATION
Between
TIMOTHY JOHN AARON OSBORNE APPLICANT
AND
DEPARTMENT OF EDUCATION – FREE STATE RESPONDENT

            ARBITRATION AWARD

DATE/S OF HEARING 25 OCTOBER 2024
DATE AWARD SUBMITTED 28 NOVEMBER 2024
NAME OF PANELIST BONGANI MTATI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) on virtual hearing on 25 October 2024 at 09h00. Mrs/Ms Human from SAOU represented the Applicant. Mr M. Moloi an official from the respondent represented the respondent, (Department of Education Free State).

ISSUES TO BE DECIDED

2. I am required to determine whether an unfair labour practice relating to the provision of benefit to an employee was committed. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE

3. This is a dispute related to the provision of the benefit involving allegations of the applicant being denied benefits of marking and moderating midyear examination by the respondent.
4. The applicant was subject adviser who applied for marking and moderation of papers in the marking centre.
5. The applicant was issued with letter for marking and moderating midyear examinations which was to start on the 7 June and 18 June 2024.
6. The applicant was invited into a meeting by the respondent and was informed that he wlll not be attending marking and moderation due to being behind his work and should rush his work by visiting schools for support in terms of the itinerary issued for the district.
7. The Applicant initiated his dispute by first lodging a grievance which was not resolved.
8. Applicant alleged that he was unfairly blocked from marking and moderating midyear examination as he was ready with his appointment letter to mark and moderate papers.
9. The respondent is the Department of Education, Free State dealing with public education for teaching and learning in schools including marking and moderations of examination papers in schools and is the employer of the applicant

SURVEY OF EVIDENCE AND ARRGUMENT
Employee’s case
Witness: Timothy Osborne

10. He testified under oath that he was an English subject advisor of the Department of Education, Free State challenging being unfairly blocked by the respondent to mark and moderate midyear examination papers
11. He stated that he was appointed to mark and moderate midyear examinations in the last week of May 2024 when he was issued with his appointment letter by the respondent in reward to receive a benefit of R28 888-70.
12. He showed a release letter as a proof that he had worked for the year and subject advisors expected to get their release letters from their seniors after duties have been concluded and signing of release letters is automatic to subject advisors at the end of the year.
13. He stated that his issue was of midyear examinations where letters of appointment are normally released to them as appointed markers and had marked midyear examinations twelve times and end year examinations marked them for sixteen times.
14. He stated that he submitted his dispute of unfair labour practice related to benefits since he was called into a meeting on the 5 June 2024 where he was informed that he was blocked from marking and moderating midyear examinations since he abused his sick leaves and there was no evidence produced to him abusing sick leaves. He further submitted that he disputed abusing sick leaves at work.
15. He submitted that his sickness was out of his control to attend medical doctors as he enjoyed his duties, so would not do abusing sick leaves.
16. He submitted that he lodged his grievance on the 12 June 2024 and marking was to start on the 18 June to 25 June 2024 and his grievance was not attended to by the respondent.
17. He submitted that he was to start moderation on the 7 June 2024 to 11 June 2024, but was informed on the 5 June that he was blocked from marking and moderating examination papers, which he viewed the conduct of the respondent highly unfair to him.
18. He submitted that there was no outstanding work to him during marking and moderations as his colleagues assisted him with his work during visits to schools, so the respondent had not done legitimacy to his leave forms.
19. He explained that the sick notes he submitted to the respondent were of himself, some for his wife and some for his son as they were all sick at different times and had to take them to the medical centres for attention.
20. He stated that there were district support programmes to visit schools, but did not attend all of them due to sickness and his colleagues would do visits for himself as there were different teams visiting schools, the majority of his schools was visited by his colleagues as he had seen their reports.
21. He mentioned that during the meeting held on the 5 June 2024 there was nothing discussed concerning his performance at work.
22. He disputed during cross examination that the release letter is used at the midyear examination as he claimed to be used for educators at schools and not to subject advisors.
23. He finally disputed that he was abusing sick leaves as he was in need of the sick leaves as he was sick and not abusing them.
24. He stated during re-examination that he was called into a meeting without a notice and informed that he was blocked from marking and moderating midyear examinations due to abusing sick leaves.
25. She submitted in her arguments that the applicant was never called for a hearing where applicant’s side was to be considered and all documents used during arbitration were never used during the meeting, as applicant was called to be informed of the decision that he was blocked from marking and moderations which was unfair to the applicant.
26. She further referred to the case of Skhosana v CCMA and Others (JR 2160/15 [2019] ZALC JHB 39 the court held that unfair labour practice doctrine is intended to protect against irrational, mala fide and arbitrary decision on that basis, and not on the basis of the dual fairness on the other.

RESPONDENT’S CASE
Witness Semakaleng Motaung

No order is made on costs. Signature: Commissioner: Bongani Mtati
Sector: Basic Education
Panellist: ELRCUR RELATIONS COUNCIL

She testified under oath that she was the Deputy Chief Education Specialist of the respondent responsible for high school’s curriculum in the district who was also the supervisor of the applicant.

She submitted that she knew the applicant as the subject advisor for English grade 8 to 12 in the district.

She stated that the applicant was not released to attend moderations and marking at provincial marking centre as his work was behind schedule and required to catch up with his work in schools.

She submitted that the applicant was on sick leave in some days April and May 2024 and was not part of the team visit supporting schools underperforming in the district as was the national program, so wanted him to catch up his behind work in schools.

He stated that the applicant was the only subject advisor responsible for grade 10 to 12 in the district and another subject advisor that assisted applicant managed to visit grade 10 only as per his/her allocations.

She submitted that they don’t have privilege of substitutes in officers as only done at schools, so had to block applicant from marking and moderating as he was behind with his work.

She submitted that applicant was submitting his sick leaves to her for processing by the respondent.

She submitted that she was authorised by the release letter by not signing it to release the applicant to the moderations and marking as release letter is issued at the midyear and end of the year. She stated that another release letter is issued by the district director, as release letters issued are for both educators and subject advisors as all are markers at marking centres.

She disputed during cross examination that the applicant was denied moderation and marking due to abusing sick leaves, but stated the reason for applicant to be denied marking and moderation was catch up program he was behind with in his work at schools

She further stated during cross examination that the applicant was called into a meeting to be informed that he would not be going to the marking and moderating midyear examinations due to being behind his work, so required to catch up with his work and further stated that there were no documents used in the meeting.

She submitted during cross examination that the applicant had many schools that were left behind for support in grade 11 and 12, so had to catch up with those schools before the start of August 2024 visit to schools.

She further confirmed during cross examination that release letters are not issued in midyear examinations and only issued in the end of the year examination and other letters received from the district director.

The respondent submitted in his arguments that the applicant used his sick leave and annual leave recklessly to such that he was behind with his work and made them to block him from marking and moderations since the applicant further failed to draw up his catch up plan and further failed to comply with lawful instruction to draw the catch up plan..
ANALYSIS OF EVIDENCE AND ARGUMENT

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 (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.

Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee, relating to the provision of benefits to an employee”. In this case unfair labour practice challenged involves benefits.

I have to decide whether the dispute of blocking the applicant from marking and moderating midyear exams is an unfair labour practice in relation with benefits and if so, further determine whether Respondent acted fairly or not in blocking the applicant to moderate and mark midyear examination in 2024 in order to entitle a benefit on marking and moderating 2024 midyear examinations.

Considering evidence and argument submitted by both parties, l find that the procedure to appoint a marker and moderator is to apply to the respondent and be issued with a letter of appointment depending on the discretion of the employer to appoint or not as testified by the applicant and not disputed by the respondent. Based on this procedure, l view as no employee is entitled to be a moderator and or a marker as all educators and subject advisors must apply for marking and moderating to be appointed as selected educators and subject advisors teaching the subject to be marked and moderated as confirmed by madam Motaung. Therefore, l conclude that this dispute is not based on the contract of the employment and or legislation to qualify as an unfair labour practice related to provisions of benefits.

In the case of Apollo Tyres SA (Pty) Ltd v CCMA (2013) 5 BLLR 434 (LAC) benefit means existing advantage or privilege to which an employee is entitled as a right or granted in term of a policy or practice subject to the employer’s discretion. Based on these reasons, l view that the applicant’s application is not supposed to be entertained on the basis of marking and moderating as would have been new benefits, in which l view as not even reached a stage of starting and finishing marking to make the applicant entitled to the payment for remuneration, so l conclude that marking and moderations are not benefits. I further view this dispute submitted as new entitlement for unfair labour practice related to benefits, which on such basis has to be refused in terms of recent court decisions. In the Apollo case the court further emphasised that it must be clear that the unfair labour practice jurisdiction cannot be used to assert an entitlement to new benefits, new forms of remuneration or new policies.

Considering employers discretion, l find that the employer has exercised its discretion fairly on blocking the applicant to attend moderations and marking of midyear examinations as the reason to block applicant was based on the applicant being behind schedule of his work at schools that required his intervention and support to prepare for final examinations at the end of the year, as the applicant was absent for some days due to ill health reasons as testified by madam Motaung and corroborated by the applicant.

I further view this dispute should have been referred for discrimination based on health reasons, which the council has no jurisdiction to hear the discrimination dispute, but CCMA and Labour Court do have jurisdiction to hear discrimination matters.

Based on the above reasons, l conclude that this dispute is not an unfair labour practice related to benefits based on applicant being blocked and refused to mark and moderate midyear 2024 examination, which warrants me to refuse his application.
AWARD

I find that this dispute is not unfair labour practice related to the provisions of benefits in terms of section 186(2)(a) of the Labour Relations Act,

The application for unfair labour practice related to benefits is refused.