In the ARBITRATION between:
Mr Themba Kenneth Matika
(Union / Applicant)
and
Education Department of the Eastern Cape
(Respondent)
Applicant: Email: tkmatika07@gmail.com
Persal number: 52088898
Respondent’s representative: Mr Walter Hena – DOE EC
Email: walter.hena@ecdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), for the alleged unfair withholding of benefits due to the Applicant, Mr Themba Matika, by the Respondent, the Education Department of the Eastern Cape.
2. This arbitration was conducted virtually via Zoom and video-recorded with the consent of the parties, on 24 February 2022.
3. The Applicant was present and represented himself.
4. The Respondent, the Eastern Cape Department of Education (ECDOE), was represented by Mr Walter Hena.
5. The pre-arbitration conference was conducted at the start of the process.
6. The parties did not submit bundles of evidence, as it was agreed between the parties that the evidence would be led by means of testimony. Mr Matika only submitted his payslip in substantiation of his current salary and persal number for this award.
7. In terms of the LRA the Applicant bears the onus to show that the Respondent committed an act or omission that may be construed as an unfair labour practice.
8. The parties submitted verbal closing arguments at the conclusion of the arbitration.
ISSUE TO BE DECIDED
9. I have to determine on a balance of probabilities whether the Respondent committed an unfair act or omission relating to the provision of benefits to the Applicant.
10. Then, if indeed an unfair act or omission relating to the provision of benefits has been confirmed, I must determine the appropriate remedy in terms of sections 193 of the LRA.
SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT’S EVIDENCE
11. Mr Themba Kenneth Matika was placed under oath, after which he testified that he is in the employ of the Eastern Cape Department of Education.
12. In 2016 he was promoted to the position of Principal of Sakhisizwe Senior Secondary School in Mdantsane in the Eastern Cape, with the accompanying Post Level 2 salary.
13. This school grew rapidly in the subsequent years, to which at the end of 2018, according to the PPN, the school was due for an upgrade effective from 1 January 2019.
14. This upgrade had the effect that a Deputy Principal and more teachers would be appointed, and the Principal of the school is then also entitled to the higher salary – this being an increase from Post Level 2 to Post Level 3 for Mr Matika.
15. Mr Matika relies on Collective Agreement 3 of 2006, as well as the Personnel Administrative Measures (PAM) document at chapter B.7 and B.8 dealing with the appropriate notches, in terms of which he claims entitlement to the increased remuneration he seeks.
16. The school’s upgrade had only recently, in the past few months, been effected successfully.
17. The upgrade of a school brings with it the adjustment to the salary notch of the school’s Principal, specifically with effect from the date the school’s upgrade is also effective.
18. However, Mr Matika’s salary was never accordingly adjusted from Post Level 2 to Post Level 3, as he is entitled to in terms of the Collective Agreement 3 of 2016 read with the PAM document B7 and B8.
19. Mr Matika wishes this award to order the implementation of that adjustment, from Post Level 2 to Post Level 3, from a specified “effective date’.
20. This adjustment to Post Level 3 has till today not been effected, therefore Mr Matika is also entitled to the difference in salaries – the backpay – between the Post Level 2 he was receiving, and the Post Level 3 salary which he was supposed to have received.
21. This backpay should cover the entire period from 1 January 2019 to the “effective date” this award specifies implementation of the adjustment of Mr Matika’s Post Level from Level 2 to Level 3.
22. From 1 January 2019 to 31 December 2019 Mr Matika was paid R33,297.00 / month, whereas he was supposed to receive R39,042.25 / month. Backpay for the year 2019 is the difference between these two amounts, which is R5,745.25 per month X 12 months (January to December 2019), amounting to R68,943.00 for the year 2019 outstanding in backpay.
23. From 1 January 2020 to date Mr Matika earned R35,830.25 / month, whereas he was supposed to receive R42,012.25 / month. Backpay of the difference between these two amounts comes to R6,182.00 per month from 1 January 2020 to the date the award orders for Mr Matika’s Post Level adjustment.
24. The Applicant wishes for this salary adjustment to be effected expeditiously, as well as for the backpay to be calculated and paid to him by the Respondent, in terms of his entitlement supporter by the PAM document and the Collective Agreement referred to.
RESPONDENT’S EVIDENCE
25. The Respondent representative, Mr Walter Hena, was placed under oath, after which he testified that he confirms the Applicant is indeed entitled to the backpay he requests from January 2019 to date from the Department of Education of the Eastern Cape, as well as the salary level adjustment from Post Level 2 to Post Level 3, from hereon.
26. He explained that this increase had not been effected as it should have, due to financial constraints experienced by the Department of Education of the Eastern Cape over the past years.
27. Mr Hena reiterated that the Eastern Cape Department of Education admits the unfair labour practice, and wishes to confirm Mr Matika’s entitlement to the backpay he seeks, and the salary adjustment.
28. Nothing that Mr Matika said is in dispute, and from the side of the ECDOE they have nothing more to add.
ANALYSIS OF EVIDENCE AND ARGUMENT
29. I am in full agreement with the parties that the Applicant in this matter is entitled to the amount claimed. The Applicant’s entitlement in terms of the Collective Agreement and the PAM document is confirmed.
30. It is common cause between the parties that the school of which the Applicant is the Principal was upgraded with effect from 1 January 2019, and they are also in agreement that this has the effect of the Principal of such a school receiving a salary increase, effective from that same upgrade date.
31. Understandably the Applicant expects that the Respondent would reimburse him for the difference between the salary he’d been entitled to, and the old salary amount which he received for the period that he waited for implementation of the salary adjustment.
32. This backpay amount was indeed due to him in terms of the PAM document and Collected Agreement referred to.
33. The Respondent does not dispute the Applicant’s entitlement, and the matter is clearly brought on an unopposed basis.
AWARD
34. The Respondent, the Eastern Cape Department of Education committed an unfair labour practice relating to provision of a benefit to the Applicant Mr Themba Kenneth Matika, by neglecting to implement his pay increase, from Post Level 2 to Post Level 3, with effect from 1 January 2019.
35. I consequently award the Applicant the following in remedy:
35.1. It is hereby directed that the Eastern Cape Department of Education must, effective from 1 May 2022, place Mr Themba Kenneth Matika at the pay rate of Post Level 3 with remuneration at R42,012.25 per month – that being R504,147.00 per annum.
35.2. It is hereby directed that the Respondent must by no later than 30 April 2022 pay the Applicant R242,039.00 in backpay – this being the difference between the Post Level 2 and the Post Level 3 salaries for the period 1 January 2019 to 30 April 2022 – amount as calculated below:
35.2.1. Period 1 January 2019 to 31 December 2019:
12 months X R5,745.25 (entitled R39,042.25 minus R33,297.00 received = R5,745.25 difference) = R68,943.00 backpay
35.2.2. Period 1 January 2020 to 30 April 2022:
28 months X R6,182.00 (entitled R42,012.25 minus R35,830.25 received = R6,182.00 difference) = R173,096.00 backpay
35.2.3. R68,943.00 + R173,096.00 = R 242,039.00
Commissioner Sally-Jean Pabst
ELRC Arbitrator