IN THE EDUCATION LABOUR RELATIONS COUNCIL

In the matter between

SAOU obo O Du Plessis Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: Anthony Walter Howden

HEARD: 13 March 2024

DATE OF AWARD: 14 March 2024

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (a) – alleged unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for Arbitration in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 7.3 of the ELRC Constitution: Dispute Resolution Procedures (As Amended 25 July 2023). The arbitration was held on 13 March 2024 via a Virtual Platform – Zoom.

2. The Applicant, Ms O Du Plessis – Persal Number 21675295, was present and was represented by Ms V Van Wyk from the South African Teachers Union (SAOU).

3. The Respondent, Department of Education – Eastern Cape, was represented by Mr E Hector from the Labour Relations Department.

ISSUES IN DISPUTE

4. This matter came before the Council in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether or not the Respondent committed an Unfair Labour Practice by not appointing the Applicant on the correct salary notch.

BACKGROUND TO THE DISPUTE

5. The Applicant, O Du Plessis, was employed by the Respondent as a Deputy Principal at Paul Sauer High School.

6. The Applicant applied for the promotion post of Principal at Paul Sauer High School and was promoted on 12 July 2019.

7. The Applicant was given an appointment letter that stated that she would be remunerated at R495 213.00 per annum, however when appointed only received R427 839.00 per annum. This has been taken up with the Respondent, however has still not been rectified.

8. The Applicant seeks that the Respondent correct her salary notch from R427 839.00 to R495 213.00 on the Persal System, make the necessary back pay and apply the adjustment on the Persal System to all her benefits.

SURVEY OF EVIDENCE AND ARGUMENT

9. It is common cause between the parties:
– That the Applicant was employed by the Respondent on 1 April 2008 as a Post Level 1 Educator.
– That prior to the promotion the Applicant was employed by the Respondent as a Deputy Principal at Paul Sauer High School from 24 April 2018.
– That the Applicant applied for the position of Principal at Paul Sauer High School (PL4).
– That the Applicant was appointed by the Respondent in the position of Principal at Paul Sauer High School on 12 July 2019.
– That the Applicant was given an appointment letter for the position which stated that the position was on salary notch R495 213.00 per annum.
– That the Applicant was however incorrectly appointed on the Persal System on salary notch R427 839.00 per annum.
– That the parties are in agreement that the Applicant was supposed to be appointed on salary notch R495 213.00 per annum.
– That the parties are in agreement that the Applicant needs to be back paid the difference since the appointment date.
– That the parties are in agreement that the Applicant must be placed on the correct salary notch of R495 213.00 per annum as per the appointment letter.

10. The issue in dispute is whether the Respondent committed an unfair labour practice by not appointing the Applicant on the correct salary notch on the Persal System.

11. The Applicant submitted a bundle of documents. None of the documents were in dispute and it was agreed that the documents’ contents were what it purported to be.

12. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

13. The Applicant’s Representative stated the following:
– That the Applicant was promoted and given an appointment letter.
– That the Applicant did not receive the adjustment for the promotion after being promoted.
– That the Applicant received all the benefits (Pay progression, etc), however at the incorrect salary notch.
– That the Applicant has made numerous attempts to resolve the issue.

The Respondent’s Submissions

14. The Respondent’s Representative stated that the Respondent is in agreement that the Applicant’s salary notch must be corrected.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

15. Section 186 (2) (a) of the LRA states:
“Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving – 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.”

16. It is common cause that the Applicant was promoted to the position of Principal on 12 July 2019.

17. From the submissions made by the parties it is evident that the dispute before the Council does not reside under the auspices of Section 186 (2) of the LRA and the Council therefore lacks the necessary jurisdiction to proceed with the matter to Arbitration.

18. The matter, which involves monies owing, may be better served under Clause 69 of the Council’s Constitution.

AWARD

19. The matter is dismissed.

Panellist: AW Howden
ELRC