IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA ZOOM

In the matter between

SAOU obo Craig Olivier and two others Applicant

and

Education Department of North-West Respondent

PANNELIST: Dr. GC. Van Der Berg
RULING: Finalised on 12 October 2023

Details of hearing and representation

1. The arbitration hearing took place on 30 August 2023 and 29 September 2023 via digital zoom conference, and it was scheduled for 9:00AM. The applicants, Craig Olivier, Mistique van der Westhuizen and Petrus Johannes Schutte van Wyk were represented by Johan Kruger an Official from SAOU. The respondent, Department of Education North-West, was represented by Martin Keetile, Labour Relations Practitioner. The applicants alleged an unfair labour practice regarding benefits in that their increments in terms of the Quality Management System (QMS) for 2022 were not paid and the last two applicants did not participate in the QMS evaluation due to absence.

Issue to be decided.

2. The applicants referred an unfair labour practice dispute regarding benefits in respect of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended to the ELRC.

3. I am firstly required to determine whether the respondent committed an Unfair Labour Practice (hereinafter an ULP) in terms of Section 186(2)(a) of the LRA by not paying the applicants their increments as prescribed by the QMS for 2022.

4. In terms of appropriate relief if I find that the respondent committed an ULP: (1) The applicants must be paid the prescribed increments after evaluation by the QMS for 2022.

Background to the Dispute

5. The applicants are employed by the Department of Education of North-West and the first applicant is the Principal at David Brink Primary School. Mistique van der Westhuizen is employed as a PL1 Educator and Petrus Johannes Schutte van Wyk also as a PL1 Educator. The Quality Management System is a performance management system for school-based educators designed to evaluate the performance levels of individuals to achieve high levels of performance. It is critical in assessing the extent to which educators are performing in line with their job description in order to achieve levels of accountability in their schools.
6. QMS incorporates the following: (1) Measuring the performance of educators in line with their respective roles and responsibilities; (2) Providing a basis for decisions on rewards, incentives, and other salary -related benefits for the applicable year; (3) Providing a basis for decisions on mechanisms to recognise good performance and address underperformance; (4) Consideration of the relevant contextual factors in conducting assessments. The school did submit the QMS scoresheets for Mr Craig Olivier, Ms Mistique van der Westhuizen and Mr Johannes Schutte van Wyk. All three applicants participated in the QMS assessment in 2022 but did not receive the 1.5% QMS.
7. The dispute was referred as an unfair labour practice regarding benefits to the ELRC. The case was set down for the arbitration hearing on 30 August 2023. The representative of the respondent did not join the online link and the arbitration was postponed to 28 September 2023. One witness of the applicants testified, and parties were then requested to submit closing arguments by 06 October 2023.

8. The parties did present opening statements and no closing arguments as agreed by 06 October 2023. Both parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered. The representative of the respondent called no witnesses and none of the applicants testified.

Survey of evidence and argument
Documentary evidence.
9. Only the applicant submitted a bundle of documents. The bundle of the applicant was marked as “A” with different sections. The respondent indicated that they are using the same bundle. The parties did not dispute the authenticity of the bundle.
Applicants’ evidence and arguments
The witness of the applicants, Guilty Molefinyana, Bojanala Circuit Coordinator QMS, EMS, PMDS after having been sworn in, testified as follows:
10. She stated that her position entails technical development and to assist teachers to develop and assists with assessments and train them as well as activities for self-development as part of the Collective Agreement of 2020. She visited David Brink Primary School several times in the beginning of 2022 to complete the workplan and it was completed as required. She visited the school during the second term to determine their readiness for assessment and then she followed up on the appraisals again. She stated that the school followed all the protocols as expected.

11. She referred to the email of Nadia Weitsz to herself on 17 November 2022 where the database for QMS was sent to her as requested. It contains the QMS composite score sheets for all three applicants and it was signed on 18 November 2022. The Department of Education indicated that they did not receive it for the three applicants, and she updated the school and the QMS score sheets were completed for the second and the third applicants as they were previously booked off and supplementary QMS score sheet were completed.

12. Under cross-examination she confirmed that the three (3) educators submitted QMS score sheets. The second and third educator was originally not appraised as they were on leave during the time it was supposed to be done. The score sheet for Craig Olivier was done. To receive the 1.5%, you should have been appraised. She advised for supplementary documents for the two educators that was not appraised, and they had to provide supporting evidence. The QMS policy states that if there is no score there is no payment as there is no default clause.

13. The score sheets were submitted on 17 November 2023 for all three (3) applicants according to the new policy and it was appraisals from January 2022 to date. The witness did not dispute that the necessary documentation was sent, and it fall within the implementation of the new date. It is clear from presented documentation that the first applicant, Craig Olivier received a supplementary payment on 09 May 2023 as authorised. The principal notified the witness that he received the QMS increment payment. The paid progression of the second applicant, Mistique van der Westhuizen and the third applicant Petrus Johannes Schutte wan Wyk were withheld as there was no score. The witness agreed that it was however later submitted as the last two applicants’ performance were re-assessed.

14. The witness stated that this issue was never discussed with the representative of the applicants, Dr Johan Kruger. She stated that the last two applicants were re-assessed on the prescribed timeline and therefore qualify for the 1.5% increment on QMS.

15. Under re-examination she confirmed that the two (2) educators received information why they were not assessed. They were put on the databases of the school. They were both on leave and they were re-assessed, and the school did comply.

Respondent’s evidence and argument
16. The representative of the respondent indicated that he is not going to call any witnesses and submitted that the first applicant, Craig Olivier, has been paid the 1.5% increment. The other two applicants did not meet the requirements and they were not included to be paid. After the testimony of the witness of the applicants he agreed that the second applicant, Mistique van der Westhuizen and the third applicant, Petrus Johannes Schutte van Wyk were re-assessed and therefore qualify to receive the 1.5% QMS. He stated that he will report back to the representative of the applicants, the ELRC and the commissioner what the amounts will be and the implementation thereof. He never reported back to anybody, nor did he present any closing statements.

Closing arguments
17. No closing arguments were received from the representative of the applicants and the respondent as ruled to be presented in writing by 06 October 2023.

Analysis of evidence and argument

18. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter.

19. The applicants referred an unfair labour practice dispute in terms of 186(2)(a) of the LRA regarding benefits. The applicants claimed that the respondent did not pay the applicants their increments as prescribed by the QMS for 2022. The panellist is expected to determine whether the respondent committed an unfair labour practice (ULP) in terms of section 186(2)(a) of the LRA and whether the respondent must pay the increments to the three (3) applicants.

20. Employees who alleged that they are victims of an unfair labour practice bear the onus of proving the claim on a balance of probabilities. Both parties agreed firstly that the first applicant, Craig Olivier, was paid according to the QMS system and therefore only a decision must be made about the payment of the second and the third applicants.

21. The witness of the applicants testified that she visited David Brink Primary School several times in the beginning of 2022 to complete the workplan and it was completed as required. She visited the school during the second term to determine their readiness for assessment and then she followed up on the appraisals again. She stated that the school followed all the protocols as expected.

22. She referred to the email of Nadia Weitsz to herself on 17 November 2022 where the database for QMS was sent to her as requested. It contains the QMS composite score sheets for all three applicants and it was signed on 18 November 2022. The Department of Education indicated that they did not receive it for the three (3) applicants, and she updated the school and the QMS score sheets were completed for the second and the third applicants as they were previously booked off and supplementary QMS score sheet were completed.

23. Under cross-examination she confirmed that the three (3) educators submitted QMS score sheets. The second and third educator was originally not appraised as they were on leave during the time it was supposed to be done. The score sheet for Craig Olivier was done. To receive the 1.5%, you should have been appraised. She advised for supplementary documents for the two educators that was not appraised, and they had to provide supporting evidence. The QMS policy states that if there is no score there is no payment as there is no default clause.

24. The score sheets were submitted on 17 November 2023 for all three (3) applicants according to the new policy and it was appraisals from January 2022 to date. The witness did not dispute that the necessary was sent and it fall within the implementation of the new date. It is clear from presented documentation that the first applicant, Craig Olivier received a supplementary payment on 09 May 2023 as authorised. The principal notified the witness that he received the QMS increment payment. The paid progression of the second applicant, Mistique van der Westhuizen, was withheld as there was no score. The witness agreed that it was however later submitted as the last two applicants’ performance were re-assessed. The witness stated that this issue was never discussed with the representative of the applicants, Dr Johan Kruger. She stated that the last two applicants were re-assessed on the prescribed timeline and therefore qualify for the 1.5% increment on QMS.

25. It is clear from the testimony of the witness of the respondent that the second applicant Mistique van der Westhuizen and the third applicant, Petrus Johannes Schutte was re-assessed and their score sheets on the QMS was sent in to the witness and circuit on 18 November 2022, Therefore to last two applicants also qualify for the increment bases on the 1,5% as mentioned in the new policy in 2022 on the QMS. In the Collective Agreement Number 2 of 2020 and subsequent memos in 2021 and 2022 it states that pay progression is not automatic but based on actual service in a particular period as determined in terms if this policy and based on the achievement of at least a satisfactory performance rating for the said period in line with department specific performance system. The department will pay a once off payment of at least 1.5% for educators with an acceptable performance rating.

26. Considering all the above, the last two (2) applicants were subjected to a ULP regarding benefits as envisaged by the LRA provisions. The respondent must pay to the two (2) applicants, QMS increments according to the policy, and it must be calculated by the respondent as agreed by the representative of the respondent. Considering the above I make the following award.

Award

27. The respondent, Education Department of the North-West did commit an unfair labour practice dispute in terms of 186(2)(a) of the LRA and the following two (2) applicants (1) Mistique van der Westhuizen and (2) Petrus Johannes Schutte, both Pl 1 educators, the 1.5% payment based on the new policy for 2022 on the QMS. The amounts to be paid by the Department of Education in North-West and paid over to the mentioned applicants by 30 November 2023 are as follows: Mistigue van der Westhuizen R4 569-00 and Petrus Johannes van Wyk R6 450-00.

Signature:
Basic Education