Panelist: Sally-Jean Pabst
Case No.: ELRC1392-24/25GP
Date of Award: 04 August 2025

In the ARBITRATION between:

MS ATHALIA MAKGABO SEDIBANA
(Union / Applicant)

and

GAUTENG DEPARTMENT OF HIGHER EDUCATION AND TRAINING
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was referred to the Education Labour Relations Council (the ELRC) in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) – an alleged unfair labour practice relating to benefits.
2. The arbitration was conducted virtually, via Microsoft Teams, on 21 July 2025. The parties did not require a language interpreter, and the proceedings were digitally recorded.
3. The Applicant, Ms Athalia Sedibana, was present and expressed being comfortable representing herself in the arbitration proceedings. The Respondent, the Gauteng Department of Higher Education and Training, was represented by the Respondent’s Labour Relations Officer, Mr Sifiso Ubisi.
4. The parties each submitted into evidence a bundle of documents they respectively relied upon, to which all was agreed between the parties as being what it purports to be. The parties submitted verbal closing arguments at the conclusion of the arbitration.

ISSUE TO BE DECIDED

5. I am to determine whether the Applicant is entitled to the benefit of the “Once-off cash bonus payment for recognition of improved qualifications” in terms of her acquiring her MED qualification – such once-off payment being 10% of the employee’s salary notch at the time of attaining said qualification – this being R35,647.20.
6. If the Applicant is entitled to said once-off payment, I must calculate and award the payment due to her by the Respondent.

BACKGROUND

7. The parties agreed that Ms Sedibana is a PL1 English Lecturer in the Department of Fundamental Business Studies in the service of the Respondent at Ekurhuleni West TVET College in Kempton Park.
8. The Applicant has been in the employ of the Respondent since May 2016, and in 2024 when she applied for this benefit upon receiving her MED, she was on the notch of R356,472.00.
9. In relief the Applicant wishes to be awarded payment of the benefit she claims – this being 10% of the notch she was on in 2024 when she received her MED qualification.  
   SURVEY OF EVIDENCE AND ARGUMENT
10. Below is a summary of only the relevant evidence I found noteworthy in hearing this matter, and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter.
    APPLICANT’S EVIDENCE
11. The Applicant Ms Athalia Sedibana testified under oath that she relies on HRD Circular 02 of 2023 in evidence, which supports her entitlement to a “Once-Off Cash Bonus Payment For Recognition Of Improved Qualifications” – this being the heading of the Circular.
12. The Applicant stated her notch at the time of her claim was R356,472.00 and that the benefit is 10% of this amount – this being R35,647.20 – which is her claim for the purpose of this arbitration.
13. Ms Sedibana read the contents of this Circular into the record, and testified that her MED (Masters in Education) fully and directly relates to her scope of work as a lecturer for the Respondent, that the College and the Respondent directly benefits from her having attained her MED and the application of her MED during the scope of her work, that she trains colleagues in her department who does not have this qualification. Ms Sedibana reiterated that her MED falls squarely within the scope of her duties performed for the Respondent.
14. Ms Sedibana went further explaining that she funded the studies for her MED qualification herself, as stipulated in paragraph 2 of the Circular – that self-funding of the studies is another requirement for entitlement to this benefit. For these reasons she should receive this benefit.
15. The Applicant pointed out that the Circular states certain exclusions – that members of Senior Management Services (SMS) and college lecturers are excluded from benefitting in terms of the Circular – but that she particularly does not fall within the scope of any of these exclusions.
16. During cross examination Ms Sedibana conceded that she had indeed once before utilised this benefit, that she did so upon attaining her Honours degree. She retorted that it had however never been brought to her attention, as Mr Ubisi now tells her, that the Circular, as interpreted by the Respondent excludes her from claiming this benefit more than once. She considers it very unfair for the Respondent to deny her this benefit seeing as the Circular clearly does not stipulate that only one additional qualification (this in addition to the minimum qualification-requirement for one’s position) brings about entitlement to the benefit. She clarified her view from the Circular stating in its first paragraph “… the employers undertook to award a once-off cash bonus in recognition of an employee’s improved qualifications relating to his/her scope of work where such attainment will improve the employee’s performance and the service delivered by the employee.” She explained she interprets the fact that the Circular uses the word qualifications (plural), rather than qualification (singular), as indicative that more than one additional qualification will give rise to entitlement to utilizing this benefit.
17. Ms Sedibana considers it very unfair that the Circular stating “Please note that if you have already benefited do not submit again as you only benefit once.” is not clear on this point. In fact, she believes the clause in the Circular should be considered null and void as it is clearly contradictory to the plural application of “qualifications” referred to in the first paragraph. Also, she considers it to refer to REQV increases, not the benefit of additional qualifications.
18. The Respondent disputed the clause above as null and void, and retorted that the Applicant was the one who entered it into evidence. Mr Ubisi referred the Applicant to Resolution 1 of 2012, at clause 7.6, stating “The cash bonus is limited to the attainment of one additional qualification.”
19. Ms Sedibana retorted that this could also be interpreted “one additional qualification” is not clear. Mr Ubisi explained the Respondent’s interpretation as being that ‘additional’ refers to any one qualification in addition to the baseline minimum qualification for the position the employee was appointed into.
20. The Applicant in turn reiterated that her qualification is sufficiently, in fact 100%, relevant to her work, and therefore she should qualify to receive this benefit again. She continues to improve herself to the benefit of the Respondent, and she should be awarded this once-off payment.
21. The Applicant expressed feeling aggrieved at not having been informed from the onset of her launching her application at the College in May 2024 – that nobody informed her during more than a year of follow-ups thereafter – that she may only claim this benefit once. She elaborated that she dealt with the College HR repeatedly in this regard, and in all those months the College never informed her that she may not benefit more than once.
22. Mr Dikutla of the union NAPTOSA attended to testify in support of the Applicant’s case, during which he expressed the contention that he supports Ms Sedibana’s search for evidence in clarity of the policies she relies on. Mr Dikutla explained that policies in general are not clearly communicated and clarified by HR to employees in the College. However, Mr Dikutla stated categorically that he is not in a position to dispute or interpret any policy, and therefore in terms of not being in a position to support the Applicant’s actual entitlement with any evidence from his side, he withdrew his testimony.

RESPONDENT’S EVIDENCE

23. The Respondent’s case, in summary, is that the Applicant’s entitlement to the “Once-Off Cash Bonus Payment For Recognition Of Improved Qualifications” is in dispute. The Respondent relies on the same Circular evidenced by the Applicant, and additionally also on Resolution 1 of 2012, as admitted into evidence by the Respondent party, and explored during cross examination of the Applicant.
24. In support of its contention that the Applicant is not entitled to claim this benefit a second time, the Respondent called as its witness Mr Ralph Mandiwana, the HR Manager of the Respondent.
25. Mr Ralph Mandiwana testified under oath that the reason the Applicant does not qualify for this benefit this time, is that she has once before already claimed this benefit upon attaining her Honours degree. It is the Respondent’s version that Resolution 1 of 2012 and HRD Circular 02 of 2023 in evidence are both clear in showing Ms Sedibana was entitled to receive this benefit, but only once.
26. Mr Mandiwana testified that two conditions are attached to qualification improvement. First is a salary adjustment from REQV13 to REQV14 in terms of improved qualification from a Diploma to a Degree – a salary adjustment. The second condition of qualification improvement would be the acquisition of an additional qualification on top of the aforementioned degree, which triggers the once-off bonus payment, which is applicable in this case of the Applicant. The witness referred to the Resolution 1 of 2012 and HRD Circular 02 of 2023 in evidence, in support hereof.
27. The witness testified that the fact that the Applicant had already once claimed and received the “Once-Off Cash Bonus Payment For Recognition Of Improved Qualifications” in the evidenced HRD Circular 02 of 2023 and that this fact excludes the Applicant from receiving this once again, as stipulated in both documents in evidence.
28. During cross examination Ms Sedibana put her version to the witness – that she interprets the circular as supporting her case that she may claim the once-off bonus payment more than once, providing the additional qualification is relevant to her scope of practice for the Respondent. Also that the Circular in evidence, in terms of referring to qualifications in plural supports her contention that she may benefit more than once. Mr Mandiwana retorted that the circular is clear in stating “Please note that if you have already benefited do not submit again as you only benefit once.” Ms Sedibana expressed her interpretation that the clause is null and void, as she believes rather it means she may claim once only for one qualification, and then for an additional later qualification once, also. Mr Mandiwana disagreed and reiterated that once-off means she may claim only for one qualification.
29. Ms Sedibana responded that the College never rejected her application, and also never informed her that she does not qualify. Mr Mandiwana retorted that, at College level, an application is not to be judged as either approved, nor rejected. The witness stated categorically that the College and its HR officials are not empowered, nor authorised, to approve nor reject the Applicant’s, or any other employee’s, applications. They merely accept applications and escalate it to DHET head office for approval or rejection – this is a centralised function. This is the case nationally in all Colleges of the Respondent, without exception.
30. The Applicant asked why the College process her application through to the DHET if she does not qualif. Also, she did not understand why her application screened and processed and a ticket number provided, if she does not qualify to receive the benefit. The witness responded that if, for example, the College had not submitted the application to the DHET, even in light of not being in a position to approve or reject, it would have been wrong. The ticket shows her application was escalated to DHET, and as mentioned once-off means once only, and the College submitted her application and she can wait for the outcome, however the Resolution and Circular is clear on this.

ANALYSIS OF EVIDENCE AND ARGUMENT

31. I have considered all of the evidence and argument lead by the parties in coming to my decision on this matter, and provide my reasoning for my decision in the following paragraphs.
32. The Applicant is claiming an unfair labour practice by the Respondent in terms of 186(2)(a) of the LRA regarding benefits:
    “(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –
    (a) 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;…”
33. The LRA requires employers to treat their employees with fairness and equity in provision of benefits. The Applicant in this matter alleges that she is the victim of an unfair labour practice, and accordingly she bears the onus of proving all of the elements of her claim on a balance of probabilities.
34. It is common cause that Ms Sedibana applied for the benefit and was assisted by HR at the College, which is her workplace. It is also common cause that she is yet to receive either approval or rejection from her employer, the DHET. The Applicant in this matter must prove not only the existence of an unfair labour practice, but also that it was unfair conduct by specifically the Respondent – the DHET.
35. The Respondent is adamant that the Circular and Resolution in evidence is clear and these two pieces of evidence corroborate each other. I noted that the Applicant did not believe the Respondent’s interpretation of the Circular and Resolution, and wishes for such interpretation to be overruled based on her view that the clauses not supporting her application is vague and/or contradictory. However I must unfortunately agree with the Respondent’s interpretation, this based on the wording in my view being quite clear in that “once-off” already stated in the heading of the Circular should already alert a peruser of the document that a person may claim this benefit only once. I do not agree with the Applicant’s interpretation that it means she may only claim the payment once for every qualification she obtains. This interpretation does not make sense to me in light of the wording, and I suspect Ms Sedibana’s interpretation is based more on her expectations and hopes than on an objective assessment. Furthermore, had the Applicant not understood, but seen the words “once-off”, she may have directed a letter directly to the DHET or asked HR to ask on her behalf whether any additional Collective Agreement, Resolution or Policy document exists relating to this benefit, and this may have been provided to her. I sympathise with the fact that the Applicant waited very long for an answer from her employer the DHET – in fact is still waiting. However there was no evidence brought to my attention by either party suggesting that there is a specific, or even approximate, time-constraint on reverting to applications.
36. Albeit the ticket and email communication from HR at College-level was ruled as hearsay evidence, I nevertheless gave some consideration to this as an indication that HR at the College did its job by escalating the application to the employer who is notably not the College, but the DHET. The College in my view would have acted outside of its powers if it had given the Applicant assurance that her application will be successful, and with respect, no evidence before me supported the Applicant’s version that screening was performed specifically for the purpose of approval or rejection by HR at the College. The Applicant was repeatedly reminded of her right to call any witness she wished to call in support of her case and her version. Ms Sedibana’s testimony that the College HR either may have suggested, or even implied, that her application was going to be successful based on their apparent screening, remained uncorroborated.
37. Although my observation was that the Applicant was in no way disingenuous, I suspect that she may out of frustration at being made to wait so long for an answer, and the encouraging helpfulness of her HR, have developed a misinterpretation of the Circular she evidenced as assurance that her application will necessarily succeed merely based on the fact that all required documents were included in her application – my interpretation is this being the ‘screening’ she refers to.
38. Ms Sedibana seemingly had never laid eyes on the evidenced Resolution before the arbitration, which is unfortunate indeed. It may have provided her with a better perspective from the onset, and might have saved her a lot of effort and frustration.
39. The Respondent’s witness Mr Mandiwana ironed out all disputes of process and interpretation, in my view. I found the credibility, reliability and probability of his version quite acceptable even though it remains most unfortunate that there does not seem to be feedback on the Applicant’s application from the DHET.
40. Noteworthy, in terms of any unfair labour practice in terms of benefit claimed by an employee, the employee bears the onus to show that specifically the employer – in this case the DHET and not the College, nor its HR – conducted such unfair act or omission. In terms hereof, I suspect that – even if the Applicant had called the HR person to witness, s/he may or may not have created an encouraging impression regarding her application – this witness would not have assisted her either as the true employer is the DHET, and not the College or its HR who have no capacity to determine on a once off bonus at all.
41. Ms Sedibana cannot claim an unfair labour practice, seeing as the DHET have not provided her even with an answer to her application. Furthermore there is no indication of any time limit for processing of applications suggesting the Respondent breached a rule, expectation or policy. My interpretation of the Circular and Resolution in evidence also supports the Respondent’s interpretation. I find that the Applicant was only entitled to receive this benefit once. The applicant agreed that she had received a once off benefit upon attaining her Honours degree. The applicant has accordingly failed to prove that the respondent committed an unfair labour practice relating to benefits against her.

AWARD

42. The claim of the Applicant, Ms Athalia Sedibana, to an unfair labour practice in terms of section 186(2) of the Labour Relations Act 66 of 1995 is hereby dismissed.

Commissioner Sally-Jean Pabst

ELRC Arbitrator