Panelist: Jonathan Gruss
Case No.: ELRC136-24/25EC
Date of Award: 09 February 2025

In the ARBITRATION between:

William Exford
(Applicant)

and

Department of Higher Education and Training

(Respondent)

Applicant’s representative: Mr Adams    

Respondent’s representative:    Mr Chiliwe      



Summary: Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to benefits.

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the Brick Field Road Campus in Kariega on 26 June 2024 and 17 January 2025 and the proceedings were electronically recorded. The applicant, William Exford was represented by Mr Adams, a union official from NAPTOSA, a registered trade union. The respondent, Department of Higher Education and Training was represented by Mr Chiliwe, a Senior Labour Relations Practitioner. The parties by agreement submitted written closing arguments, the initial agreement date for submission was 28 January 2025, and the respondent’s representative requested an extension in submitting written closing arguments, an extension was granted to both parties, the applicant submitted his closing arguments on 28 January 2025 and the respondent filed their written closing arguments on 31 January 2025.

ISSUE TO BE DECIDED

2. The dispute referred, an alleged unfair labour practice dispute relating to benefits, concerns the respondent’s failure to pay the applicant his IQMS pay progression for the assessment year 2022 that should have been paid in December 2023.

BACKGROUND TO THE ISSUES

3. The following was recorded at the commencement of the proceedings during narrowing of the issues as Common Cause:
   3.1 The applicant commenced employment with the respondent on 1 January 2013.
   3.2 His current position is a post level 1 lecturer at the Business School in High Street, Kariega.
   3.3 As at 1 July 2023 his annual salary was R342 033. His pay-progression had it been paid in July 2023 would have been R5191.28.
   3.4 The applicant’s entitlement to a pay progression is regulated by PSCBC Resolution 1 of 2018 paragraph 4 and ELRC Resolution 8 of 2003.
   3.5 Paragraph 4.1.1 of PSCBC Resolution 1/2018 provides parties agree to the equalisation of pay progression across the public service at 1.5% per annum to employees appointed in the public service in terms of the following legislation; 4.1.1 Employment of Educators Act 76 of 1998 (as amended).
   3.6 Paragraph 12.6.2 of ELRC Resolution 8/2003 provides:
   “For Performance Measurement
   For purposes of pay or grade progression total scores must be calculated. The final score (total) is used to arrive at an overall rating. The rating can be adjusted upwards taking contextual factors into account such as the lack of opportunity for development, lack of INSET provided by the District/Local Departmental office or lack of support and mentoring within the school. The scoring sheet is attached to the end of the instruction (annexure A) to be used for this purpose. The completed scoresheet should be submitted to Persal for data capturing after the summative evaluation at the end of the year. In order to qualify for salary progression and grade progression respectively the following minimum scores must be attained.
   Salary Progression Grade Progression
   Post Level educator: 56 78
   (Teachers and Senior Teachers)”
   3.7 The applicant applied for pay progression on 29 November 2022 and applicant form was submitted to Mr Flanagan who signed for it as the Campus Manager.
   3.8 On 15 August 2023 the applicant was notified that his IQMS form was incomplete. The applicant was then instructed by the Campus Manager, Ms Mugadza, to rectify his form which he did on 16 August 2023.
   3.9 On 6 December 2023 the applicant became aware that the salary progression was paid to other lecturers whereas he was not paid.
   3.10 In terms of an internal email addressed to all Campus Managers dated 10 January 2023 and a reminder, sent on 12 January 2023, the date of submission of IQMS forms was 27 January 2023.
4. The respondent concedes that appraisal forms were submitted. However, the forms were incomplete in that the performance standards were not filled in, the scores were completed.

SURVEY OF EVIDENCE

5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

APPLICANT’S EVIDENCE

6. The applicant gave evidence under oath to the following effect.
   6.1 He referred an unfair labour practice dispute to the ELRC after realising that other staff members were paid IQMS pay progression on 6 December 2023 whereas he did not get paid. Thereafter, he lodged a grievance and enquired from HR. The College closed on 8 December 2023. On 13 December 2023 he visited the HR Department to find out what was happening. He went to Mr Blani’s office and was informed by Mr Blani that there were a few staff members who were also not paid and he had collated a list for the Department of Higher Education and Training (DHET) to identify who got paid and who did not get paid. Mr Blani informed him that he was investigating this in that he was not the only one affected. He was told that this should be resolved by 14 December 2023. He followed up by sending an email to Mr Blani enquiring as to what Mr Blani had found out. The only response was that most the people at the College had gone on leave.

6.2 The College reopened on 8 January 2024 and on 9 January 2024 he came to the HR office, Mr Blani was still on leave. He spoke to Ms Fezeka Mgxotheni who was the admin for IQMS, Ms Mgxotheni’s response was that he should speak to Ms Brown. Ms Mgxotheni informed him that Ms Brown must draft a memo with the names including his that will be submitted to Mr van Heerden the principal who must sign off on this memo. At that stage he was not told that his IQMS form was incomplete. He sent various emails to Mr Blani enquiring whether the memo had been submitted to the principal. In February 2024 in response to the email he sent to Mr Blani, Mr Blani indicated that he was still busy. Shortly after he lodged a grievance and only then was he informed as to the reason, that his IQMS form was submitted late. He indicated to Mr Blani that his form was not late.

6.3 Considering the respondent’s Exhibit bundle B1 an email dated 10 January 2023, sent by Ms Mgxotheni under the heading “Request for IQMS score spreadsheet”. In terms of that email the IQMS forms were distributed to all lecturing staff for completion. The email specifically indicated regarding submissions that it is due on 27 January 2023 and that all campus managers were to populate the scores on the spreadsheet for each staff member and to be submitted electronically on 27 January 2023. As confirmed by exhibit B11 an IQMS checklist cover page in his name confirms that on 29 November 2022 the following documents were confirmed, IQMS final scoresheet; composite scoresheet; person growth plan and pre-election discussion form. This form was signed by the campus manager. As confirmed by exhibit B12-14 IQMS Composite Score sheet was signed by Mr Flanagan, the peer and himself on 29 November 2022.

6.4 Considering exhibit B17, composite scoresheet with his name appearing thereon, used in performance measurement for pay progression and grade progression for level 1 educators (28 criteria). This form was pre-populated. Considering exhibit B19 that is a pre-evaluation profile check form for him, on 29 November 2023, this form was completed, however when he came back it was blank, he did not want to complete it as he previously completed the form, however he eventually wrote it in his handwriting. Exhibit B11 IQMS check list cover form was completed. He was only informed on 15 August 2023, exhibit B8, that the form was incomplete.

6.5 He did indicate in the WhatsApp message when told to come in that he might miss receiving pay progression for non-compliance, he submitted that is fine that the author of the email could submit it like that and they will meet each other at the ELRC. He took issue that his previous form was incomplete. On 16 August 2023 he completed the form. Concerning exhibit B15 the form Integrated Quality Management System: TVET educators performance in respect of each performance standard personal records, that was completed in his handwriting, he was not aware of this form and he did not know about it in that it was never given to him to complete. This is not one of the forms that needed to be checked. Concerning exhibit B5, a memorandum on the subject heading IQMS Omissions, he disagrees with the contents under “discussion” wherein it was recorded that his scores were left out of the initial scoresheet due to the fact that at the time of collecting IQMS documents, they did not receive his document on time as result when the deputy campus manager, Mr Flanagan, submitted forms for their Campus on the closing date, the applicant’s documents were not part of the pack. He submitted his form on 29 November 2023.

6.6 Considering the Persal printout form, exhibit B51, Enquiry Transaction Higher Education Performance Evaluation IQMS this document records his evaluation for the year 2022, he scored 93, category Good, this form was printed on dated 5 July 2023.

6.7 Under cross-examination, the applicant confirmed receiving a pay progression, for the year proceeding his current dispute, for the year 2021 that was paid in 2022. When enquired as to the reason why he did not get his 2022 pay progression, the applicant indicated he did not know why he was not paid in that he submitted all the documentation. It was suggested to the applicant concerning performance standards, the first 4 were compulsory and must be filled in by the applicant, item 5-17 the applicant must choose 3. The applicant disagreed that he could choose from 17 as he was given 7. As to the applicant’s response to the WhatsApp message as reflected in exhibit B8, wherein the applicant was told to come and to fill in otherwise he might miss receiving a pay progression for non-compliance, the applicant responded that is fine you can submit it like that we will meet each other at the ELRC. In response to the WhatsApp response, the applicant explained that on 8 August 2023 when he got his IQMS document back, Exhibit B17, this was a completed document and he enquired why (5), (6) and (7) had been removed, he eventually completed the form as requested. However, in the original form he completed, the performance standards were typed in and it was thereafter removed. Concerning Exhibit B15, this is a personal form that does not need to be submitted and he was only given a form to complete in his own handwriting, B17, on 16 August 2023.

RESPONDENT’S EVIDNECE

7. Kurt Patric Flanagan testified under oath to the following effect.

7.1 He is employed as a deputy campus manager for the respondent. He confirms the WhatsApp messages as reflected in exhibit B8-9 between him and the applicant. He requested the applicant to come to his office and he informed the applicant that his IQMS form was incomplete and that he must fill in the other performance standards. The applicant at first claimed that he told him the performance standards had been removed by HR. He reiterated, the applicant must come and fill in the form otherwise he might miss receiving his pay progression for non-compliance. The applicant then responded that it is fine he could submit the forms like it is and they shall meet each other at the ELRC. The applicant however on 16 August 2023 enquired as to when he can come in to do the form. He responded to the applicant that his form is at HR. He could complete his form at HR after the EFAT test. The applicant initially told him that it had been removed and that the person who removed it can fill it in herself.

7.2 Considering exhibit B15, integrated quality management system: TVET Educator’s in respect of each performance standard for personal records form, this form was filled in regarding scores by the applicant, however the performance standards were not completed. Therefore, the form was incomplete. However, when the form was handed over to the lecturers initially the performance standards were already populated.

7.3 Under cross-examination, the witness confirmed that the applicant did qualify for 2022 IQMS pay in 2023.

7.4 The witness in response to questions asked by myself confirmed that the applicant did complete the IQMS form on 16 August 2023 and those who completed the forms in August 2023 with the applicant were all paid in December 2023 except for the applicant.

8. Fezeka Mgxotheni testified under oath to the following effect.
   8.1 She is employed by the respondent as a performance management practitioner.

8.2 Concerning the IQMS validity checklist for 2022 performance cycle, as reflected in exhibit B10 for the applicant, date of validation 6 July 2023, which was signed by her on 30 June 2023 and by the HR manager, Mr Blani also on 30 June 2023. Concerning the indication by ticks in the relevant boxes to verify completion and availability of performance management document all 7 boxed under the heading “Yes” were ticked. This according to the witness does not mean that the document was filled in correctly all it means is that the document was there. However, when the document exhibit B15 went for validation, those doing the validation wanted to know why the document was incomplete as it relates to performance standards that are compulsory. When referred to exhibit B51, the Persal printout, enquiry transaction file higher education create education performance evaluation (IQMS), although a score of 93 was reflected and it was categorised as good it refers to schools or performance standards but does not deal with completion of the document.

8.3 Under cross-examination, with reference to Exhibit B17 that is a composite score sheet for use in performance measurement for pay progression in grade progression for level 1 education (28 criteria) for the applicant, dated 29 November 2022 wherein the performance standards for (5) professional development in fieldwork/courier participation; (6) communication and human relations and (7) administration, the witness confirmed that this is a correct document, however she told them not to change the date of said document. Regarding exhibit B15 this document was not filled in completely.

ANALYSIS OF EVIDENCE

9. The dispute that was arbitrated in terms of Section 186(2)(a) of the Labour Relations Act (the “LRA”):
   “Unfair Labour practice” means any unfair act or omission that arises between an employer and an employee involving unfair conduct of the employer…. relating to the provision of benefits to an employee.”
10. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 1120 (LAC), the LAC agreed with the finding in Protekon that Section 186(2) superimposes a duty of fairness irrespective of whether that duty arises expressly or implicitly in the contractual provisions that establish the benefit. The court found the better approach to be to interpret the term ‘benefit’ to include a right or entitlement to which an employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to the employee in terms of a policy or practice subject to the employer’s discretion. This also put paid to the anomaly created by the decision in HOSPERSA, in terms of which an employee who wanted to use the unfair labour practice jurisdiction in s 186(2) relating to promotion or training did not have to show a right to training or promotion, but had to show a right sourced in contract or statute when using the same remedy in relation to the provision of benefits.
11. This can also include an advantage which is granted to an employee or to other employees whereas other employees or an employee is denied the same advantage.
12. Paragraph 4.1.1 of PSCBC Resolution 1/2018 provides parties agree to the equalisation of pay progression across the public service at 1.5% per annum to employees appointed in the public service in terms of the following legislation; 4.1.1 Employment of Educators Act 76 of 1998 (as amended). Paragraph 12.6.2 of ELRC Resolution 8/2003 provides as it relates to performance measurement, for purposes of pay or grade progression total scores must be calculated. The final score (total) is used to arrive at an overall rating. The rating can be adjusted upwards taking contextual factors into account such as the lack of opportunity for development, lack of INSET provided by the District/Local Departmental office or lack of support and mentoring within the school. The scoring sheet is attached to the end of the instruction (annexure A) to be used for this purpose. The completed scoresheet should be submitted to Persal for data capturing after the summative evaluation at the end of the year. In order to qualify for salary progression and grade progression respectively the following minimum scores must be attained, Post Level 1 educator, salary Progression, a score of 56.
13. The entitlement to a pay progression as confirmed by Mr Flanagan is not disputed. Mr Flanagan confirmed that the performance standards were already populated on exhibit B17 when they were initially handed over to lecturers, exhibit A19 confirms this. The applicant formed the view and enquired as to why these performance standards were removed when he was requested to complete his form that was according to the respondent incomplete. It was argued by the applicant’s representative that the respondent could not provide cogent reasons why the applicant did not receive salary progression for the period 2022. It is further argued that both the respondent’s witnesses, Mr Flanagan and Ms Mgxotheni contradicted each other as to why the applicant’s salary progression was not paid. Mr Flanagan, the applicant’s supervisor confirmed that the applicant submitted his forms on time in November 2022 and when requested to make changes, the applicant did so on 16 August 2023. He is of the view that the applicant should be paid. However, Ms Mgxotheni tried to explain that the forms were submitted late but she could not prove when the applicant submitted the forms. It was argued as confirmed by the respondent’s bundle that the date of submission as indicated was 29 November 2022 and that the respondent failed to adduce any evidence that the applicant submitted his forms late.
14. Ms Mgxotheni also testified that lecturers were only required to fill in the missing performance standards and not to change the date. However, when she was asked when the final document in the form of an Excel spreadsheet with the correct information was submitted to the respondent for payment she could not answer. I find it inherently improbable, that the respondent would record on Persal as referred to in exhibit B51 the applicant’s IQMS score of 93 and record that it is a good score whereas the IQMS composites score sheet was incomplete. Should you not qualify for IQMS due to your paper work being incomplete why insert such information in persal? With regard to exhibit B10 the same, the IQMS validation check list for 2022 performance cycle is ticked verifying completion and availability of the performance management document. The certificate signed by both Fezeka Mgxotheni and Mr Blani the HR manager confirms that they certify that the information provided above is complete and correct to the best of their knowledge. They understand that any non-compliance with respect of the performance management policy may result in further action being taken. This tells me that the original IQMS form was complete. The document is dated 30 June 2023. The applicant, on 16 August 2023, rectified the document that was according to the respondent incomplete as to completion of three additional performance standards that were written in the applicant’s own handwriting.
15. Mr Flanagan testified that two other lectures Ms Spiers and Mr Mhlatha did not complete the forms and he later learnt that Ms Mgxotheni misplaced Ms Spiers’s form and it was later found. Ms Spiers did receive her salary progression back-pay in December 2023 and therefore he could not understand why the applicant was not paid.
16. I must in conclusion comment that Ms Mgxotheni did not impress me as credible witness, she was initially reluctant to give evidence and when cornered under cross examination she became argumentative.
17. Let’s assume for arguments sake that the original IQMS document that was submitted in November 2022 was incomplete and based on the evidence of both applicant and Mr Flanagan that the applicant on 16 August 2023 rectified the IQMS document by inserting three additional performance standards, then on that date the applicant rectified any shortcomings. The fact that Ms Spiers was paid back pay in December 2023 and the applicant was not paid his IQMS pay progression, renders the respondent’s conduct to be unfair and this amounts to an unfair labour practice relating to benefits.
18. The applicant seeks payment based on the following information provided by him.
    18.1 The applicant was on notch 179 = R342066 as on 30 June 2023.
    18.2 On 1 July 2023 the applicant qualified for 1,5% salary progression. The Applicant from 1 July should have progressed to notch 182 = R346968, (R346986 – R342066 = R4920 increase per annum 4920 /12 = R410 pm.
    18.3 As the applicant qualified for the annual salary increase in April 2024, the amount is calculated from July to March = 9 x 410 = R3690. The Applicant receive his bonus in February 2024 which was R410 (346968 /12 = R28915,50 pm, 342066/12 = R28505.50 pm, R410 short payment on his bonus)
    18.4 For the period 1 July 2023 – 31 March 2024 the applicant is owed: R3690 + R410 = R4100.
    18.5 On the 1 April 2024 the applicant qualified for an annual salary increase. He was moved from 179 = R342066 to R358143 an increase of R16077/12 = R1339.75 pm. The applicant should have been on notch 183 R346968 and moved to R363294, R363294 – R346968 = 16326/12 = 1360.50 per month.
    18.6 Currently Mr Exford earns R29845.25 per month instead of R30274.50. A difference of R429.25 x3 months R1287 (1 April 2024 – 30 June 2024)
    18.7 On 1 July Mr Exford qualified for salary progression for 2023 paid on 1 July 2024. He qualified for 1.5% salary progression. He moved from notch 179 R358145 to notch 182 R363294 /12 = R30274.50 pm
    18.8 The failure by the DHET to correct the Applicant’s salary in 2023 he should have been on R368487 after the 1.5% salary progression in 2024. 368487/12 = R30707.25 – 30274.50 =R432.75 x7 =R3029.25 (1/7/24 -31/1/2025. Total amount owed to Mr Exford is R4100 + 1287+3029 = R8416,00
19. I therefore make the following award.

AWARD

20. The respondent, the Department of Higher Education and Training, has perpetrated an unfair labour practice relating to benefits against the applicant, William Exford, when they failed to implement pay progression of 1.5% to the applicant thereby not placing him on notch 182 backdated to 1 July 2023.
21. The respondent, Department of Higher Education and Training is ordered to rectify retrospectively to 1 July 2023 the applicant’s pay progression of 1.5% and amend the applicant’s service record to reflect this.
22. The respondent is ordered to give effect to paragraph 21 and to pay the applicant an amount of R8416,00 by no later than 31 March 2025.

Name: Jonathan Gruss
(ELRC) Arbitrator