Case Number: ELRC828-24/25 GP
Commissioner: M.A. HAWYES
Date of Award: 13TH of March 2025

In the ARBITRATION between

Karen Geldenhuys
(Union/Applicant)

and

Department of Education: Gauteng
(Respondent)

AWARD
6.1. The Respondent is ordered to pay the Applicant an acting allowance from January 2023 to May 2023. (five months) The amount payable for January 2023 to March 2023 is R8268-75.
6.2. The amount payable from April 2023 to May 2023 is R5694-50. The total amount due and payable to the Applicant is R13 963-25.
6.3. The total amount (less any deductions for income tax) must be paid to the Applicant upon or before the 31st of March 2025.
6.4. Any payment made after the 31st of March 2025 will attract interest as described in the Prescribed Rate of Interest Act no 55 of 1975 (as amended). The current rate of interest is 11.50% from the 1st of November 2024.

DETAILS OF HEARING AND REPRESENTATION
1.1. The matter was scheduled for arbitration on the 21st of February 2025 at the Muldersdrift Primary school, Muldersdrift, Krugersdorp. The arbitration was finalised on the same day.
1.2. Ms. R. Visagie, a NAPTOSA union official, represented the Applicant.
1.3. Ms. C. Trent, a labour relations officer, represented the First Respondent.
1.4. After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 3rd of March 2025. The said arguments were timeously received and my award now follows.
1.5. The parties made use of one combined bundle of documents consisting of fifty-six pages.
1.6. Detailed notes and a digital recording was kept of the entire arbitration process.

ISSUE IN DISPUTE
2.1. Whether the effective nonpayment of the Applicant’s acting allowance is fair or not. If found to be unfair I must decide upon the appropriate relief.

BACKGROUND TO THE ISSUE
3.1. The Respondent employs the Applicant as a Senior Education Specialist (SES) at the Education Teacher Development Unit (ETD) at the Gauteng West District.
3.2. One Dr. G Deenanath retired as the District Curriculum Education Specialist (ES) at the ETD at the Gauteng West District, leaving an open position on a higher salary scale in the unit.
3.3. The Applicant was approached by Mr. Maanwane, her Chief Education Specialist (CES) to act in the position vacated by Deenanath and she accepted the position on the 9th of January 2023. .
3.4. Both Maanwane and the Applicant completed all the relevant documents at the Human Resources and Provision (HRP) unit on the same day and the officials of the HRP unit accepted and took the documents in without objection or query.
3.5. On the 7th of February 2023, the Applicant went to Mrs. Louisa Dhlamini to speak about another matter and Ms. Dhlamini informed her that her application was missing some documents.
3.6. The Applicant did not dispute the fact that certain documents were missing and she forwarded the outstanding documents to Dlamini on the same day, i.e. the 7th of February 2023 under the cover of an email.
3.7. The Applicant followed up on various occasions with the status of her documents and the payment of her acting allowance.
3.8. The date on which the submission went to the District Director for signature was the 27th of February 2023.
3.9. The date on which the submission went to Head Office was one month later on the 27th of March 2023. Ms. N. Molefe, Director THRS specifically noted that the submission had only been received at Head Office on the 22nd of March 2023.
3.10. The Applicant was only advised on the 20th of April 2023 that her acting in a higher position had been approved. The acting in a higher position was only approved until the 30th of May 2023.
3.11. It is common cause that the Personnel Administrative Measures (PAM) at C4.2.1) only permits the payment of acting allowances if the period of acting exceeds six weeks.

SURVEY OF PARTIES EVIDENCE AND ARGUMENT
4.1 The union led the evidence of the Applicant and two subpoenaed witnesses namely Mr. J. Radebe and Mr. X. Kheswa.
4.2 The Applicant’s testimony was for the most part the total of the common cause facts described above.
4.3 Radebe testified that he was the Acting assistant Director for conditions of service (COS) at the time that he dealt with the Applicant’s case.
4.4 Radebe referred to a circular dated the 26th of July 2022 by Mr. Edward Mosuwe, the then Head of Department (HOD).
4.5 Paragraph 2 of the circular reads that:
“No employee is allowed to assume and perform duties in a post or to assume duties in an acting position, without being in possession of an appointment letter signed by the HOD or his delegated authority.”
4.6 Radebe testified, somewhat stating the obvious, that the manager of the unit where someone is acting should have planned and prepared earlier for the Applicant’s appointment- like last year.
4.7 Radebe was then confronted with clause 4.2.2 of PAM which states:
“Compensation shall be backdated to the date on which the Applicant commenced acting”.
4.8 During the course of his testimony Radebe admitted that the provisions of the PAM carried more weight than a general circular from the HOD.
4.9 Radebe testified that the Applicant’s appointment letter was only signed by the last party at Head Office on the 14th of April 2023.
4.10 Neither Radebe nor Dlamini denied that the Applicant was officially acting from the 9th of January 2023.
4.11 Radebe acknowledged receiving the Applicant’s follow up emails but could explain why the emails were ignored except to say that his unit was only doing payment.
4.12 Dlamini, who dealt directly with the Applicant, was also subpoenaed to testify at the hearing but did not attend because she was apparently on annual leave about to embark on a journey on the Blue Train.
4.13 Radebe stated without being prompted that this was not a racial issue.
4.14 Xheswa testified that he was the deputy director for THRS at the district office.
4.15 Xheswa testified further that at the time that the Applicant was acting in the position he was not in his post.
4.16 Xheswa deposed further about the different functions of HRP and COS.
4.17 Xheswa testified that if blame was to be apportioned anywhere for the delay it would lie at the door of the HRP department.
4.18 Xheswa admitted that the provisions of PAM took precedence over internal memos by the HOD or his delegate.
4.19 Xheswa admitted further that clause 4.2.2 specifically mentioned that compensation for acting would be backdated to the date on which the educator commenced acting.
4.20 The Respondent did not lead additional evidence disagreeing that there had been unreasonable delay on the part of the Respondent’s officials in processing the Applicant’s acting documentation but argued that the payment of the acting allowance should be limited from the end of February 2023 to the end of May 2023 (three months).
4.21 The Respondent referred to one Mr. Molapi,(also described as the comparator) who had acted in the same position as the Applicant immediately after she had acted, from the 1st of July 2023.
4.22 Molapi had signed for his acting position on the 1st of June 2023 and the submission was done by the District Office even prior to his period of starting to act on the 1st of July 2023.
4.23 Molapi’s submission also went to the Director on the 30th of June 2023 (also prior to his acting period starting) but was processed much quicker.
4.24 Molapi’s submission was signed off on the 17th of July 2023 after he had commenced acting on the 1st of July until the 30th of September 2023.
4.25 Molapi testified that the reason the Applicant’s acting allowance should be paid from the 1st March 2023 was because a submission cannot be backdated as that would lead to an audit query because the date would have passed at the time of the submission.
4.26 Molapi also admitted that there were delays in the processing of the Applicant’s claim which cannot be explained.
4.27 Trent argued that if one applied the Molapi standard to the Applicant then one should consider that the Applicant only submitted outstanding documents to Dlamini on the 7th of February 2023 and if one applies the seventeen-day grace period applied to Molapi then the Applicant’s acting period should commence on the 16 + 7 = 23rd of February 2023 so effectively the 1st of March 2023.

ANALYSIS OF EVIDENCE AND ARGUMENT
5.1. The Applicant bears the onus of proving on a balance of probabilities that the failure to pay her acting allowance in a higher position was unfair.
5.2. The Applicant must also prove that she was entitled to be paid from the date that she physically commenced acting which is the 9th of January 2023. The question of the payment of additional compensation will be discussed and evaluated later if necessary.
5.3. I find that clause C 4.1.2 of PAM requires that the Applicant be appointed in writing to act. It doesn’t say by whom.
5.4. It is common cause that on the 9th of January 2023 Maanwane( CES) appointed the Applicant to commence acting in Dr Deenanath’s position. The appointment was reduced to writing in the form of minutes already referred to at page 9 of the bundle of documents.
5.5. The PAM published in 2022 is the consolidation of the terms and conditions of the employment of educators in terms of section 4 of the Employment of Educators Act, no of 1998 (EEA).
5.6. It is common cause that Maanwane had the authority to appoint the Applicant to act in the post. I find that the provisions of Clause 4.1.2 of PAM have been met as the Respondent (represented and duly authorised by Maanwane in writing) appointed the Applicant to act in the post.
5.7. What followed was a series of unexplained delays in processing the documents at the district office. The fact that the Applicant was not told that she needed to submit additional documents is the fault of the Respondent since this should have been done at the time the Applicant submitted her acting forms.
5.8. When the Applicant queried another matter on the 7th of February 2023, she was told for the first time that certain documents were outstanding. The person (Dlamini) who could have best explained why she did not follow up with the Applicant did not testify. As such I have no explanation why the Respondent through the Gauteng West district office did sign and dispatch the documents to Head Office timeously.
5.9. Trent argued that the Respondent actions in not expediting the processing of the Applicant’s acting paperwork was not deliberate in that various management positions within the district were vacant at the time of the issue.
5.10. She also submitted that the impact of the working conditions of the Applicant was not significant as she was still earning a salary.
5.11. I find that the Applicant has not proven on a balance of probabilities that the Respondent’s actions were deliberate or intentional.
5.12. I do find however that the Respondent, through its various authorised officials, acted negligently as they did not act as reasonable officials placed in the same position and this amounts to an unfair labour practice.
5.13. The Respondent, perhaps understandably, seeks to link the Applicant’s situation with the manner in which Molapi was dealt with by the Respondent. After consideration of the two cases I find that the Applicant was treated inconsistently to the way Molapi was treated.
5.14. In determining when the payment for the acting stint should start I am guided by clause C 4.2.2 OF PAM which states that : “Compensation (for acting)-my emphasis- shall be backdated to the date on which the educator commenced acting. I interpret the word “commenced” as being the date that the Applicant physically commenced acting. That date is the 9th of January 2023.
5.15. If I rely on the Acting HOD’s directive (which conflicts with the provisions of PAM) then it would lead to the anomalous situation where the Applicant could not claim a cent acting allowance, because then she would only be deemed to have acted from the last date signed by the last official which took place on the 14th of April 2023. (less than six weeks from the end of the acting period).
5.16. The provisions of PAM must be properly interpreted and the circular ignored because it does not amount to authoritative law on the question of conditions of service. The enabling subordinate legislation (PAM) together with the provisions of the EEA are the final word in determining educators conditions of service.
5.17. I find that the Applicant was effectively appointed to act on the 9th of January 2023 and I find that the Applicant is entitled to an additional acting allowance for an effective period of five months: i.e. from the 9 January 2023 to the 31st of May 2023. The amount due and payable to the Applicant is calculated in paragraph 6.1 of the award.
5.18. In conclusion I turn now to the question of whether to award compensation as a solatium to the Applicant for the experience that she had to undergo in waiting almost twenty-four months for her acting allowance.
5.19. At the conclusion of the arbitration I asked both parties representatives to address me on the question of whether I should award compensation in addition to the acting monies due to the Applicant.
5.20. The Applicant did not argue for this at all in their closing arguments. Instead, they asked me to order the charging of interest. The Respondent made fairly detailed submissions in arguing the principles and quantum of ordering compensation.
After consideration I have decided that I will not consider the question of compensation any further. I will , however, make a specific order for the payment of interest for any late payment of this award.

After consideration I have decided that I will not consider the question of compensation any further. I will , however, make a specific order for the payment of interest for any late payment of this award.

6. AWARD
   6.1. The Respondent is ordered to pay the Applicant an acting allowance from January 2023 to May 2023. (five months) The amount payable for January 2023 to March 2023 is R8268-75.
   6.2. The amount payable from April 2023 to May 2023 is R5694-50. The total amount due and payable to the Applicant is R13 963-25.
   6.3. The total amount (less any deductions for income tax) must be paid to the Applicant upon or before the 31st of March 2025.
   6.4. Any payment made after the 31st of March 2025 will attract interest as described in the Prescribed Rate of Interest Act no 55 of 1975 (as amended). The current rate of interest is 11.50% from the 1st of November 2024.

Mark Hawyes

Arbitrator