14 May 2025 -ELRC439-24/25GP

Case Number: ELRC439-24/25GP
Commissioner: PAUL PHUNDU
Date of Award: 13 MAY 2025

In the ARBITRATION between

Esther Nkala
(Applicant)

And

Department of Education – Gauteng
(Respondent)

Union/Applicant’s representative: In person
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative: Mr Thabiso Moeketsane
Respondent’s address:

Telephone:
Telefax:

Details of hearing and representation

[1] This is the award in the arbitration between Ms Esther Nkala, (hereinafter referred to as the Applicant) and Department of Education – Gauteng, (hereinafter referred to as the Respondent). The matter was set down for arbitration on 12 May 2025 virtually on MS Team Platforms.

[2] The Applicant was present at the arbitration hearing and she represented herself. The Respondent was represented by, Mr. Thabiso Moeketsane, Employee Relations Official.

[3] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.

[4] No Bundle of documents submitted.

[5] The proceedings were digitally recorded. I have also kept handwritten notes.

Issue to be decided

[6] I am required to establish whether the Respondent committed an unfair labour practice in relation to benefits or not, if so, I must determine the appropriate remedy.

Background to the issue

[7] The Applicant is employed as a Lecturer at South West Gauteng Campus, Roodepoort.

[8] The Applicant is presently in possession of RQV13 qualification and paid R21000.00 per month.

[9] The Applicant submitted an application to be paid at a higher salary level because she is in possession of RQV14 qualification.
[10] According to the Applicant, the Respondent is refusing to convert her salary level and pay her accordingly.

[11] She declared a dispute. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for payment of her benefit and her salary be adjusted accordingly.
Survey of arguments and evidence

The applicant’s case

[12] Ms Esther Nkala testified, under oath, that she is employed by the respondent as a Lecturer.

[13] Ms Nkala indicated that she is currently paid a salary of a Lecturer who is in possession of RQV13 qualification.

[14] She submitted an application to the Respondent that her salary be adjusted and be paid appropriately since she is in possession of RQV14 qualification. The Respondent is refusing to pay her despite her being in possession of RQV14 qualification.

[15] According to Ms Nkala, She submitted her RQV14 certificate to the Respondent as proof of qualification on 5 March 2025.

[16] Ms Nkala further indicated that a colleague of hers, applied months later after she had applied and asked that her salary be adjusted because she was in possession of RQV14 qualification and this was granted and her colleague is being paid at the higher salary level. However, the Respondent is refusing to adjust her salary level despite her having applied months earlier.

[17] Mr Nkala concluded by stating that the Respondent acted unfairly by not adjusting her salary and no tangible reasons are given for this refusal. The Applicant is asking for the adjustment of her salary and be paid according to RQV14 qualification.

[18] No cross examination.

The Respondent’s case

[19] The Respondent opted not to call any witness and decided to close its case.
Analysis of evidence and arguments

[20] Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.

[21] Section 186(2) provides that; (i ) “unfair labour practice” means an unfair act or omission that arises between an employer and employee involving – (ii) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.

[22] The dispute is about an allegation of an unfair labour practice-benefits. In essence, the dispute is about the Applicant being paid a salary of a Lecturer who is in possession of RQV13 qualification instead of a Lecturer who is in possession of RQV14 qualification.

[23] The onus is on the Applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the Respondent that gives rise to an unfair labour practise.

[24] The dispute was referred as an allegation of an unfair labour practice concerning benefits.

[25] I am therefore required to determine whether the Respondent’s conduct was fair or unfair in not paying the Applicant’s appropriate salary while in possession of RQV14 qualification, to succeed in such a claim, the Applicant must show that the Respondent’s conduct was arbitrary, capricious and therefore unfair.

[26] It is common cause that the Applicant is in possession of RQV14 qualification.

[27] It is common cause that the Applicant’s qualification was assessed and evaluated by the Department of Higher Education and Training.

[28] It is also common cause that the Respondent is not disputing the fact that the Applicant is in possession of RQV14 qualification which was submitted to it on 5 March 2025.

[29] It is also common cause that the Respondent agrees that the Applicant should be remunerated accordingly and be placed on the same salary as a Lecturer who is in possession of RQV14 qualification.

[30] It is my finding that the Respondent has committed an unfair labour practice in as far as the failure to adjust her salary is concerned.

[31] In Aries v CCMA & others the Court held that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.

[32] The Applicant has succeeded to prove, on a balance of probabilities, that the Respondent has committed an unfair labour practice concerning benefits.

[33] I therefore make the following award:

Award

[34] The Applicant, Esther Nkala, has discharged the onus to show that the Respondent, the Department of Education-Gauteng, has committed an unfair labour practice in as far as the failure to adjust her salary is concerned.

[35] The Respondent is ordered to adjust the Applicant’s salary and to ensure that the Applicant is being paid as a Lecturer who is in possession of RQV14 qualification.

[36] The above mentioned salary adjustment must be effected on 30 May 2025.