Panelist: Clint Enslin
Case No.: ELRC851-24/25EC
Date of Award: 14 February 2025

In the ARBITRATION between:

NAPTOSA obo Denver Gie
(Union / Applicant)

and

Department of Higher Education and Training

(Respondent)

Applicant’s representative: Advocate G Saayman (NAPTOSA)    
Applicant’s address:        

            Telephone:      
Telefax:        
                                                    Email        cosec@naptosa.org.za    

Respondent’s representative:    Advocate M Mali 
Respondent’s address:       


Telephone:      
Telefax:        
Email   mandisi@emcol.co.za  

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The arbitration was held East Cape Midlands TVET College (“ECM”), Brickfields Road, Kariega, on 4 February 2025.
2. The Applicant, Mr Denver Gie, was represented by Advocate Gavin Saayman, an official of NAPTOSA, a registered trade union. The Respondent, Department of Higher Education and Training, was represented by Advocate Mandisi Mali, Deputy Principal: Corporate Services at ECM, for the Respondent.

ISSUE TO BE DECIDED

3. Whether the Respondent’s failure to place the Applicant on a higher notch and pay him accordingly, after he obtained a higher qualification, amounts to an Unfair Labour Practice in terms of Section 186(2)(a) of the LRA, and if so;
4. Determine appropriate relief.

BACKGROUND TO THE ISSUES

5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

5.1 The Applicant is employed by the Respondent, as a PL1 lecturer.

5.2 He improved his qualification from a REQV 13 to a REQV 14, by obtaining an Advanced Diploma in TVET, with effect from 15 December 2021.

5.3 A2 (National Policy) at page 12 confirms that an Advanced Diploma TVET results in the REQV level moving up 1 level.

5.4 The move up in level is also confirmed in the PAM document (A1) Chapter B clause B.10.2.4

5.5 Notch 85 (old) referred to in A1 is now notch 164 (new).

5.6 The Applicant is entitled to move up to REQV 14 with effect from 15 December 2021.

5.7 The move to REQV14 entitled him to be moved to old notch 85, which is now notch 164.

5.8 The Applicant’s current notch should be R343 277 per annum.

5.9 As a result of the Respondent’s failure to implement the increased REQV level and notch for the Applicant from 15/12/2021, the Applicant is entitled to back pay in the amount of R193 571, 35.

6. The Respondent handed in 1 bundle, marked “R”. The Applicant handed in documents marked “A1” and “A2”. The parties handed in document “X” jointly. It was agreed that the said documents were what they purported to be. Document “X” contained the calculation of monies owed (quantum). It was calculated by the Respondent’s relevant department and parties agreed to the contents thereof.
7. The Applicant seeks to be placed on the correct notch 164 and also seeks back pay.
8. The matter was recorded electronically.

SURVEY OF EVIDENCE AND ARGUMENT

9. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
   terms of Section 138(7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
   evidence and arguments heard and considered in deciding this matter.

APPLICANT’S CASE

Mr Denver Gie

10. Mr Denver Gie, the Applicant testified and confirmed that he had in fact obtained an Advanced Diploma TVET effective 15 December 2021. He was on REQV13 at the time and had not been moved up to REQV 14 as yet. He read A1 B.10.2.4 into the record.

RESPONDENT’S CASE

11. The Respondent’s representative confirmed that he had nothing to dispute and that everything was common cause.

GENERAL

12. Both parties were afforded an opportunity to lead any further evidence and/or raise any issues in dispute. They both confirmed that there were no further issues in dispute and that they did not wish to lead any further evidence.

ANALYSIS OF EVIDENCE AND ARGUMENT

13. Section 186(2) of the LRA states that “Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving –
    (a) 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 a benefit to an employee. (Own underlining)
14. It is by now trite that an employee’s salary amounts to a benefit for purposes of section 186(2)(a) of the LRA. I am accordingly satisfied that the dispute is covered by the aforementioned section of the LRA.
15. All of the facts in this matter are common cause. These include, inter alia, that the Applicant is on an REQV13, that he obtained an Advanced Diploma TVET effective 15 December 2021, that this entitled him to be moved from REQV 13 to REQV 14 and accordingly up to old notch 85 (new notch 164), that the Respondent has failed to move him to the correct notch and that the new (correct) notch scale and back pay values for the Applicant are correct as contained in X.
16. A2 (DHET: National Policy on the Evaluation an Recognition of Qualifications for Employment of College Lecturers) in table 3 on page 12 confirms that an Advanced Diploma TVET equals 120 credits, NQF level 7 and results in REQV + 1.
17. A1 (extract from PAM document) at B.10.2.4 reads: “If a serving educator with REQV 13 (or lower) on post level 1, ………, improves his/her education qualification, which has the effect that his/her REQV improves to REQV 14, such an educator’s salary will adjust to notch code 85”.
18. Given all the above, I am satisfied that the Applicant was entitled to be moved up too old notch 85 (new notch 164) with effect from 15 December 2021. Also that the Respondent’s failure to move the Applicant to the correct notch amounted to an Unfair Labour Practice – relating to benefits. He is accordingly entitled to be placed on the correct notch and to receive back pay for the period from 15 December 2021.
19. As per X (which contains full breakdown of the calculations), which is agreed, the total back pay owing is R193 571,35 and is broken down as follows:
    19.1 15 December 2021 to 31 March 2022 = R16 636,10

19.2 1 April 2022 to 31 March 2023 = R57 777,00

19.3 1 April 2023 to 30 June 2023 = R14 920,50

19.4 1 July 2023 to 31 March 2024 = R45 432,00

19.5 1 April 2024 to 30 June 2024 = R15 855,75

19.6 1 July 2024 to 31 January 2025 = R42 950,00

AWARD

20. The Respondent, the Department of Higher Education and Training, has committed an Unfair Labour Practice, in terms of Section 186(2)(a) of the LRA – relating to benefits, against the Applicant, Mr Denver Gie, by failing to place him on old notch 85 (new notch 164) with effect from 15 December 2021.
21. The Respondent is ordered to place the Applicant on the correct notch of R343 277 per annum, with immediate effect.
22. As a result of Unfair Labour Practice, the Respondent is ordered to pay the Applicant an amount of R193 571, 35 less normal deductions, in back pay, for the period of 15 December 2021 until 31 January 2025.
23. The amount in paragraph 22 above, must be paid by no later than 28 March 2025.

Name: Clint Enslin
(ELRC) Arbitrator