Case Number: ELRC 1362-24/25 EC
Panelist: Lungile Matshaka
Date of Award: 16 May 2025

In the ARBITRATION between

Magwa, Anele Alton
(Applicant)

And

King Sabata TVET College / DHET
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. This is an award following an arbitration hearing held on the 24th of April 2025 at KSD Dalindyebo TVET College at Umtata, involving the Applicant, Mr. A. A. Magwa, represented by Mr. Z. M. Kahla, union official of PSA, and Mr. Z Galada, HR Manager representing KSD Dalindyebo TVET College.
2. The proceedings were digitally recorded, and witnesses gave evidence under oath.
3. The parties requested and were enabled to submit closing arguments within 11 days.

ISSUES TO BE DECIDED

4. I am required to decide whether or not the Respondent committed unfair labour practice both procedurally and substantively in not recognizing the Applicant’s experience and advancement in terms of Teaching Qualification M + 4 after having advanced from M + 3.

ISSUES TO THE BACKGROUND

5. It is common cause, that Mr. A.A Magwa was appointed as a lecturer on 17 May 2015. When he joined the College, he had already had twenty (20) years of experience as a lecturer from Ingwe College. By the time he joined the KSD College, he held two trades (plumber & bricklayer). He was a qualified artisan. Artisanship is equivalent of a National Diploma Department. He then furthered his studies, and the higher diploma in engineering, that translating to REQV 14. During his previous employ, he was remunerated at (M+4) REVQ 14, but KSD TVET College remunerated him at REQV 13. Thus employer remunerated Mr. Magwa on a wrong notch.
6. It came to light that from the Respondent’s representative that the employer had actually made an attempt to assist the Applicant as it was in essence not opposed to it. In fact, as it is obvious from above (paragraph 5), that the Respondent does owe the Applicant some money.

SURVEY OF EVIDENCE AND ARGUMENT

Applicant’s evidence

7. The Applicant’s testimony under oath was to the effect that:
   (i) He was appointed as a lecturer for Mathematics and Physical Science as from 17 April 2015 to date;
   (ii) Before he joined KSD College, he worked as a lecturer at Ingwe TVET College. He had resigned on the 30th November 2012 to pursue business ventures;
   (iii) He further stated that he had more 20 years of experience as an educator; and
   (iv) He further conducted assessments to students to ensure that they are adequately and competent to perform assigned tasks.
8. During his testimony, the Applicant referred the tribunal to 5C 4.1 (b) where he stated that the employer failed to retain his salary. He argued that the current salary puts him on an entry notch, which is a wrong notch.
9. The Applicant’s evidence stood its ground and could not be challenged in any sense.

Applicant’s witness

10. Mrs. Ndamase, the Applicant’s witness, introduced herself as a lecturer in this institution (KSD TVET College), testified that she had resigned in 2015. She applied 2021 and she had then re-applied and was taken back in August 2022. She confirmed that the Respondent did not recognize her previous experience. She wrote to HR, Mr. Galada and Mr. Mswane to rectify the problem. She further pointed out that the institution has a history of failing to recognize the previous experience of educators.
11. The Respondent did not challenge Mrs. Ndamase’s evidence.

Respondent’s evidence

12. The Respondent did not oppose the matter of the Applicant. The employer’s representative confirmed the status of the Applicant and also acknowledged having travelled to DHET (Department of Higher Education & Training) to request head office to effect the said adjustments. The Respondent further provided proof of the application they made to DHET head office for salary adjustments of the Applicant (Mr. Magwa) to REQV14.

ANALYSIS OF EVIDENCE AND ARGUMENTS

13. It is common cause that the Applicant is in possession of M + 4 teaching qualification which qualified him to be appointed as a Lecturer. However, he realized two (2) years later that he was getting paid a scale of M + 3 Teaching Qualification and not M + 4. He addressed a letter to the HR Head.
14. It is further common cause that the Respondent prepared an application for Recognition of previous experience and qualification improvement that was directed to the DHET Conditions of Service Section. It is further common cause that the Applicant was informed that the difference is acknowledged, however, the function is performed at the Central Office. Attempts will be made to send all the Applicant’s documentation to the Head Office for rectification.
15. I have further noted that the Respondent’s representative, Mr. Galada, together with his colleague (Mr. Mabula) during a visit to Head Office handed over the Applicant’s documentation in person to the Assistant Director HR in the Conditions of Service Section.
16. In essence, the above explains why the College did not oppose the Applicant’s application,
17. What came to light from that interaction is that all applications relating to recognition of previous experience and the qualifications improvement applications have been put on halt and that there were certain matters that the Deputy Director General for Corporate Services was looking into relating to these matters. Unfortunately, there is no indication how long this process will take.
18. In its closing arguments, the Respondent puts on record that the College acknowledges Mr. Magwa’s application (claim), and that it is based on the relevant policies and prescripts governing personnel employed in terms of Employment of Educator’s Act of 1998. It is further acknowledged that this salary difference has prejudiced the Applicant in terms of income as it is not congruent with previous experience and qualifications as confirmed by the service record provided.
19. In the light of the above exposition, it is quite evident that the College is not contesting the dispute, instead, it has taken all efforts to forward and assist the Applicant’s claim at Head Office, as tabulated below.
20. It is only fair that the Deputy Director General’s process has to come to some finality at some point. Clearly, in some instances, like in the Applicant’s case, the period is just over 10 years. How long should such applicants wait before they get what is due to them?
21. Taking into account the period that has already elapsed, as a reasonable decision maker and, in my own sense of fairness and justice, I can only come to the conclusion that two (2) months will be more than enough for Deputy Director General to wind up the process in the Applicant’s case. The award in favour of the Applicant will enable him to enforce it through the normal legal process, if the circumstances demand enforcement.
22. Lastly, regarding sought relief of 12 months’ salary, I take a view that, as a tribunal and creature of the statute, I have no discretion or legal basis to grant it. It is therefore declined
23. The monies owed to Mr. Magwa are a salary discrepancy from (M+3 to M+4), and pensions which have been misaligned and miscalculated over the period of 72 months
24. Thus, I have only considered the obvious ones i.e. the following:

(a) Net Salary (M + 4) – R24620.762 x 72 months = R1,772 694.864

(b) GEPF – Lump – R2 361.50 – R1 647.76 – R713.73 = R51 389.28

(Diff Cal R713.74 x 72)

(c) TOTAL AMOUNT DUE = R1 824 084 – 14

AWARD

25. I make the following award:
26. I find that the Applicant, Anele Alton Magwa is indeed owed the total amount of R1 824 084-14 as calculated in paragraph 24.
27. I hereby order the Respondent, KSD TVET College/ DHET (Department of Higher Education & Training) to pay the Applicant, Anele Alton Magwa, the said amount of R1 824 084.14, on or before 15 July 2025.

Signature:

Commissioner/ Panelist : Lungile Matshaka