IN THE EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: ELRC 497-24/25 EC
IN THE ARBITRATION
Between
SADTU obo SIYABULELA GCINGCA APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE RESPONDENT

ARBITRATION AWARD

DATE/S OF HEARING 17 APRIL 2025
DATE AWARD SUBMITTED 15 MAY 2025
NAME OF PANELIST BONGANI MTATI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) on 17 April 2025 at 09h00. Mr Siyabonga Gashi from SADTU represented the Applicant. Mr KS Dalasile an official from the respondent represented the respondent, (Department of Education Eastern Cape).

ISSUES TO BE DECIDED

2. I am required to determine whether an unfair labour practice relating to the provision of benefit to an employee was committed. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE

3. This is a dispute related to the provision of the benefit involving the applicant alleging that he was not paid his 2022 and 2023 pay progression called quality management systems.
4. The applicant was the principal of Luvuyo Junior Secondary school.
5. The applicant was chased by the community from the school and went to the district office, where he was provisionally reporting at.
6. When the applicant was at the district office was not paid his salary progression for 202022 and 2023.
7. The applicant alleged to have been paid his salary progression in 2024.
8. The respondent is the Department of Education, Eastern Cape dealing with public education for teaching and learning in schools including paying salaries and some benefits to educators.

SURVEY OF EVIDENCE AND ARRGUMENT
Employee’s case
Witness: Siyabulela Gcingca
ELRC497-24/25EC

9. He testified under oath that he was the principal of Luvuyo Junior Secondary school who was displaced on the 13 March 2020 and was not paid his salary progression for the years 2021 and 2022.
10. He testified that he was paid his salary progression of 1,5% in 2023 and 2024 as last received it in 2021.
11. He submitted that in 2023 was invited by Quality Management Systems Co-ordinator to notify him that he was entitled to the salary progression even if he is displaced from his school.
12. He stated that he was evaluated in 2023 as he was still displaced and paid his salary progression in 2024.
13. He further submitted that he is seeking relief of payment of his salary progression for 2021 and 2022 with necessary adjustments to update his salary notches.
14. He submitted during cross examination that he was not sure whether was not paid salary progression for 2021 and 2022, and stated that he knew that he was not paid for two years salary progression, so accepts years 2022 and 2023 as known by the respondent and has persal system to confirm years not paid salary progression.
15. He submitted salary slips confirming his notch in 2022 and 2023.
    RESPONDENT’S CASE
16. The respondent confirmed the relief sought by the applicant and further stated that they are not opposing this application as they know it, but delayed by some officials in the department not performing their duties as required to fast track payment of the applicant.
17. He further submitted that they will provide their printout to confirm the payment of the salary progression of the applicant for 2022 and 2023 at a rate of 1.5%.
18. He submitted in his argument that the applicant was paid salary progression in 2021 having adjusted to R551 376-00 as per the printout he submitted and in 2022 and 2023 was not paid salary progression except general adjustment effected on 1 April 2022 and 2023.
19. He submitted that the applicant according to printout was supposed to have received R606 339-00 notch for period up to 30 June 2024as salary progression equating to 1.5% of R606 339-00 by one year and in 2024 applicant was paid his salary progression of 1.5%.
20. He finally submitted that the amount owed to the applicant is subjected to statutory deductions like pension, tax and increase to his bonus, which he viewed could be accurately calculated through persal system, which is in process with the respondent.

ANALYSIS OF EVIDENCE AND ARGUMENTS
ELRC497-24/25EC

21. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
22. Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee, relating to the provision of benefits to an employee”. In this case unfair labour practice challenged involves benefits.
23. I have to decide whether the dispute of not paying the applicant his salary progression called quality management systems (QMS) is an unfair labour practice in relation with benefits and if so, further determine whether Respondent acted fairly for failing to pay salary progression to the applicant in order to entitle a benefit of salary progression as an educator employed by the respondent.
24. Considering evidence submitted by both parties, l find that the applicant is entitled to the benefit of salary progression called quality management systems paid to all educators as 1,5 % per annum of the salary notch of each educator as testified by the applicant and confirmed by the respondent who admitted that indeed the applicant was not paid his salary progressions for 2022 and 2023, which the respondent is processing to effect payment and adjustment of the salaries of the applicant.
25. Therefore, l conclude that this dispute is based on the contract of the employment and or legislation to qualify as an unfair labour practice related to provisions of benefits.
26. In the case of Apollo Tyres SA (Pty) Ltd v CCMA (2013) 5 BLLR 434 (LAC) benefit means existing advantage or privilege to which an employee is entitled as a right or granted in term of a policy or practice subject to the employer’s discretion. Based on these reasons, l view that the applicant’s application is supposed to be entertained on the basis that he is an educator who was paid salary progression in 2021 and in 2024 as was still displaced from his school and further advised by the quality management system’s co-ordinator to be entitled to his salary progression even if he was displaced from his school. So the applicant was paid his 1.5% salary progression in 2021 and 2024.
    ELRC497-24/25EC
27. Based on the above reasons, l conclude that this dispute is an unfair labour practice related to benefits based on applicant being not paid his salary progression of 1.5% per annum in the years 2022 and 2023.

REMEDY

28. The 2022 notch of the applicant was R567 918-00 /1.5×100= R8518-77 x2years=R17037-54.
29. The 2023 notch of the applicant was supposed to be R576 436-77 as added with pay progression in 2022 being R567918-00 plus R8518-77 amounting to 2023 salary notch of R576436-77/100×1.5=R8646-55.
30. The salary notch for 2023 is R576436-77/100×1.5=R8646-55 amounting to R585083-32
31. Therefore, the applicant is entitled to be paid his salary progression for 2022 and 2023 to the total amount of R25 684-09 subject to legislative deductions of tax and pension.
32. The notch of the applicant for the year 2022 is adjusted to R576436-77 and salary notch for the year 2023 is adjusted to R585083-32

AWARD

33. I find that this dispute is unfair labour practice related to benefits in terms section 186(2) of the LRA.
34. The application for unfair labour practice related to benefits is granted.
35. I direct the respondent to pay salary progression of the applicant for 2022 and 2023 at 1.5% per annum totalling to an amount of R25 684-09.
36. Salary notch of the applicant for the year 2022 is adjusted to R576 436-77 and salary notch for the year 2023 is adjusted to R585 083-32
37. I order that the amount in paragraph 35 being R25 684-09 as applicant’s salary progression for the years 2022 and 2023 to be paid on or before 30 June 2025.
38. No order is made on costs.

Signature:

Commissioner: Bongani Mtati
Sector: Basic Education

ELRC497-24/25EC