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13 May 2025 -ELRC682-24/25WC

Commissioner: Jacques Buitendag
Case No.: ELRC682-24/25WC
Date of Award: 12 May 2025
In the matter between:

NAPTOSA obo M E ACHARI Applicant

And

DEPARTMENT OF HIGHER EDUCATION AND TRAINING Respondent
(South Cape TVET College)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

  1. The arbitration hearing under the auspices of the ELRC took place virtually on 28 February 2025. The proceedings were digitally recorded.
  2. Ms. C Harris, an official of Naptosa represented the applicant, Ms. M E Achari. Mr. S Dlamini, a Senior Labour Relations Officer represented the respondent, the Department of Higher Education and Training (South Cape TVET College). The parties filed written closing arguments on 7 March 2025.

THE ISSUE IN DISPUTE

  1. I must determine whether the conduct of the respondent constitutes an unfair labour practice concerning benefits. If so, I must determine the appropriate remedy.

BACKGROUND TO THE ISSUE

  1. The applicant is employed as a Lecturer at the South Cape TVET College (George Campus) since 2009.
  2. The applicant improved her qualifications by achieving a B-Ed Senior and FET Phases qualification on 23 May 2023.
  3. On 29 May 2023 the applicant completed the respondent’s “Lecturer Qualification Improvement Application” form and submitted it to the respondent.
  4. On 10 August 2023 the respondent confirmed that the application was allocated to an official for actioning.
  5. On 19 September 2024 the applicant filed a grievance about not receiving a cash award for the improved qualification. The applicant received no reply from the respondent.
  6. On 24 October 2024 the applicant filed an unfair labour practice dispute with the ELRC. A Certificate of non-resolution of the dispute was issued on 11 November 2024 and the ELRC processed the dispute for arbitration
  7. The applicant prays for a finding that the respondent has committed an unfair labour practice concerning benefits and for an order that the respondent pays the applicant a cash bonus. The respondent denies committing an unfair practice concerning benefits.

SUMMARY OF EVIDENCE AND ARGUMENT

  1. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings; I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.

The applicant’s evidence

  1. Ms. Achari testified that after she achieved her qualification she completed the “Lecturer Qualification Improvement Application” form and submitted it to the respondent. She was not granted a bonus or notch increment for her improved qualification. Ms. Achari believes that the Personnel Administrative Measures (PAM) applies to her.

The respondent’s evidence

  1. Ms. Shawe, the respondent’s Senior Labour Relations Officer testified that the PAM read with the National Education Policy on Recognition and Evaluation of Qualifications for Employment in Education does not apply to lecturers appointed by the respondent for the recognition of improved qualifications. Section 1 of the policy clearly spells out that the policy applies only to qualifications attained by teachers for teaching in schools and by school and office based educators who are supporting teaching and learning in schools.
  2. Ms. Shawe testified that the respondent relies on GPSSBC Resolution 5 of 2014 to reward persons who achieved an improved qualification. She testified that the applicant shall qualify for a once of cash bonus if she meets the criteria for recognition of an improved qualification in terms of this resolution.

Closing arguments

  1. The written closing arguments of the parties are part of the record. I have taken it into account, and I don’t find it necessary to repeat it here in full.
  2. Ms. Harris argued that the applicant is entitled, whether it is under the provisions of the PAM or GPSSBC Resolution 5 of 2014, to receive recognition for her improved qualification.
  3. Mr. Dlamini argued that the respondent applies GPSSBC Resolution 5 of 2014 for the recognition of improved qualifications and that the PAM does not apply to the applicant.

ANALYSIS OF EVIDENCE AND ARGUMENTS

  1. The applicant has preferred to refer her dispute in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended, which defines an unfair labour practise as any unfair act or omission that arises between an employer and an employee involving inter alia the conduct by the employer relating to benefits. The onus is on the applicant to prove the unfair labour practice concerning benefits.
  2. In Appolo Tyres (Pty) Ltd v CCMA and others [2013] 5 BLLR 434 (LAC) Musi AJA said the following at par 50: “In my view the better approach would be to interpret the term benefit to include a right or entitlement with 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 an employee in terms of a policy or practise subject to the employer’s discretion. In my judgement “benefit” in section 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion. In as far as Hospersa, GS4 Security and Scheepers postulate a different approach they are, with respect, wrong”.
  3. At the commencement of the arbitration there were disagreement between the parties whether the applicant is entitled to claim benefits for the improved qualification in terms of the Employment of Educators Act 76 of 1998 as amended (EEA) read with the PAM. The respondent submitted that the PAM does not apply to lecturers.
  4. The applicant party has referred to clauses B.10.1.1 and B10.2.4 of the PAM. In short these clauses provides that a serving educator with REQV13 or lower on post level 1 or a principal receiving an allowance for performing the duties of principal improves his/her education qualifications, which has effect that his/her REQV improves to REQV 14, such an educator’s salary will adjust to notch code 85. If the educator is already on notch code 85 or beyond, he/she will receive a cash bonus equal to 10% of notch code 85. These notch codes has since changed on PERSAL.
  5. In terms of par. A.1.1 the PAM is applicable to all educators as defined in the EEA. The EEA is applicable to educators as determined by the Minister of Basic Education in terms of section 4, and the employment of educators are regulated in terms of section 6 of the EEA. Section 1 of the EEA defines an educator as “any person who teaches, educates or trains other persons or who provide profession services, including professional therapy and education psychological services in any public school, departmental office or adult basic education centre and who is appointed in a post on any educator establishment under this Act.” Section 6(1) of the EEA provides that appointment of any educators in service of the Department of Educator shall be made by the Director General and in the service of a Provincial Department of Education by the Head of Department.
  6. I find that the applicant is not an educator as defined by the EEA and she is not appointed in terms of section 6(1) of the EEA. The PAM cannot thus be applicable to the applicant and her claim for recognition of her improved qualification. In fact, the National Education Policy on Recognition and Evaluation of Qualifications for Employment in Education also does not apply to the applicant because she is a lecturer and not an educator. This policy applies only to qualifications attained by teachers for teaching in schools and by school and office based educators who are supporting teaching and learning in schools.
  7. The Continuing Education and Training Act 16 of 2006 (CETA) defines a lecture as any person “who teaches, educates or trains other persons or who provides professional education at any college, and who is appointed in a post at any lecturer establishment under this Act”. It is clear that the applicant is a lecturer employed in terms of The CETA.
  8. I find that the applicant cannot rely on the PAM provisions to claim a benefit for recognition of an improved qualification.
  9. Whist it was not referred to by the parties, I have considered whether ELRC Resolution 5 of 2002 which deals with the Recognition of Improvement in REQV applies to this case. But in terms of section 2(2) of this collective agreement, the agreement applies to all employees of the employer as defined in the EEA. As I have already explained above, the applicant is not an employee as defined in the EEA but is a lecturer as defined in CETA and that she is employed in terms of this act. ELRC Resolution 5 of 2002 therefore does not apply to this dispute.
  10. Ms. Shawe uncontested testimony is that the respondent relies on GPSSBC Resolution 5 of 2014 to consider applications for the payment of an improved qualification bonus to employees.
  11. GPSSBC Resolution 5 of 2014 was negotiated between the state as employer and the trade unions within the GPSSBC. In terms of clause 2 of the resolution, the agreement binds the employer, employees of the employer who are members of the trade union parties to the agreement and employees of the employer who are not members of any trade union parties to this agreement but who fall within the registered scope of the GPSSBC. GPSSBC Resolution 5 of 2014 has not been extended to employees, such as the applicant, who fall within the registered scope of the ELRC. I find that the applicant cannot rely on GPSSBC Resolution 5 of 2014 to claim benefits under the jurisdiction of the ELRC.

AWARD

  1. The applicant, Ms. Magrietha Elizabeth Achari has failed to prove her claim that the Department of Higher Education and Training committed an unfair labour practice by failing to pay her a cash bonus of 10% of her annual salary for an improved qualification.
  2. The application is dismissed.

ELRC Panelist: Jacques Buitendag