In the matter between

SADTU obo MRS ZUKISWA GQOLA
(Applicant)

And

EASTERN CAPE DEPARTMENT OF EDUCATION
Respondent

DETAILS OF HEARING AND REPRESENTATIONS

1. This award is rendered in terms of section 138(7) of the Labour Relations Act, 66 of 1995 as amended (the LRA).
2. The dispute was referred for arbitration in terms of section 186(2) (b) of the LRA and the hearing was held on the 20th October 2020 via Zoom Virtual Conferencing.
3. Both parties were present. The Applicant, Mrs Zukiswa Gqola, was represented by Mr R Mtywara a Provincial Negotiator of SADTU, whereas the Respondent, Department of Education Eastern Cape, was represented by Mr R Eskok, Labour Relations Practitioner based in Port Elizabeth.
4. The hearing was digitally recorded and was finalised on the date of hearing. The Applicant submitted a bundle of documents to be utilised in the presentation of her case, such marked “Applicant Bundle A”.

BACKGROUND TO THE DISPUTE
5. The Applicant is employed as a Level 11 Senior Education Specialist, based in Uitenhage, Eastern Cape. At the time the dispute arose, being April 2017, the Applicant was employed as “SES PSOPP” with Persal No. 520 29832
6. In 2017 the Applicant assumed the Acting Position of DCES Resourcing from the period of 1 April 2017 to 31 December 2017.
7. It is this period for which the Applicant claims she was not paid an allowance for, such actions on behalf of the Respondent constituting an unfair labour practice.
8. The relief sought by the Applicant is to declare the refusal to pay the acting allowance by the Respondent as an unfair labour practice.
ISSUES
9. I am required to determine whether the refusal to by the Respondent to recognize that the Applicant was in an acting position from 1 April 2017 to 31 December 2017 was unfair labour practice or not. If I find that that it was unfair, to order an appropriate relief.

SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant’s evidence:
10. The Applicant testified under oath that she currently holds the position of Senior Education Specialist: Uitenhage, Level 11. In 2016, Mrs Brenda Subramanien was transferred to East London in December 2015.

11. The Acting CES for IDS&G, Mr AJ Hopa, drafted communication to the Acting District Director, Mr E Gorgonzola. Such written communication was to recommend that the Applicant be appointed to act as DCES Resourcing in the IDS&G Section and that such appointment should commence from 1 December 2015.

12. The Applicant stated that on the basis of such recommendation, she assumed the acting duties and was subsequently paid an acting allowance in 2017.

13. Again on 9 October 2017, the same communication from Mr AJ Hopa was addressed to Mr E Gorgonzola, recommending that the Applicant be appointed to act as DCES Resourcing with such appointment being recognized from 1 April 2017. The Applicant subsequently drafted correspondence to the Personnel Officer, Uitenhage District, on 9 October 2017 stating that she accepted the appointment of Acting Deputy Chief Education Specialist in the IDS&G Section of the Uitenhage District Office of the Department of Education.
14. The Applicant stated that she performed these duties from 1 April 2017 to 31 December 2017 but that all attempts to obtain payment since December 2017 had been fruitless. In her investigations and request to be remunerated such allowance, she was informed to contact her Union “if she wanted to be paid”. She was aware of other colleagues that lodged disputes and were subsequently paid their acting allowance.
15. The Applicant furthermore testified that it was unfair for her to be expected to perform a number of additional jobs at great expense to her without payment. The actions of the Respondent in this regard were abusive.
16. Under cross-examination, the Applicant admitted that she received no written formal communication indicating that she was appointed to act in the position. She assumed the duties on the premise of the recommendation letter of Mr Hopa. She furthermore stated that she was confused by the actions of the Respondent, as the same facts and circumstances were present in 2016, for which she was paid. She had no reason to substantiate why the circumstances would differ for 2017.
17. In closing, the Applicant’s representative submitted that they premised their dispute on the basis of Collective Agreement 8 of 2002 and prayed for an Order dictating that the actions of the Respondent were unfair.
The Respondent’s Evidence:
18. The Respondent led evidence in the form of testimony of Mr Lesley Eskok, Labour Relations Practitioner based in Port Elizabeth. Mr Eskok testified under oath that the acting allowance was for professionals whereby there is a need for someone to act in an absent post. The duty of the supervisor of the vacant post is to make a recommendation to the District Director.
19. Upon consideration of such, authorisation will be given for appointment. An offer letter is made and in the present circumstances this was not done. In closing, the Respondent representative submitted that proper procedures were not followed in terms of the Personnel Administrative Measures “PAM” and that the Applicant deliberately placed herself in a position whereby she did not have the authority or permission to act.
20. It was therefore submitted that her Application be dismissed.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS

21. Section 191 of the LRA provides that any employee alleging the unfair labour practice may refer the dispute in writing to a council, if the parties to the dispute fall within the registered scope of that council.

22. The question to be answered in the present dispute is to establish the fairness or otherwise of the Respondent’s failure or refusal to pay the Applicant an acting allowance from the period of 1 April 2017 to 31 December 2017.

23. The main issue in dispute, is whether or not there was an acting appointment.

24. This matter is about the interpretation and application of Education Labour Relations Council Resolution 8 of 2001 and Resolution 8 of 2002: “Payment of an Acting Allowance for An Educator acting in Vacant and Funded Post Vacant Post” (“the Resolution”).
25. The Resolution stipulates the conditions under which an employee will be entitled to an acting allowance.
26. Clause 1 of Annexure A of the Resolution provides that an educator, complying with the minimum requirement in paragraph 2 (2) of Chapter B of Personnel Administrative Measures, shall be appointed, in writing, by the Employer to act.
27. It was on the Applicant’s own tendered evidence that the document upon which she assumed her appointment to act in the post, was a letter from Mr AJ Hopa addressed to Mr E Gorgonzola, recommending that the Applicant be appointed to act as DCES Resourcing with such appointment being recognized from 1 April 2017.
28. Giving the correspondence its ordinary meaning, would simply provide that this was communication addressed from the Supervisor under whom the vacant post fell, (Mr AJ Hopa) to the Acting District Director: Mr E Gorgonzola, requesting that Mrs Gqola be recommended to act as DCES Resourcing in the IDS&G Section. This letter requesting her recommendation does not suffice to constitute an appointment to act.

29. Mrs Gqola could not provide any further communication or documentary evidence other than the documents of recommendation for 2016 and 2017.
30. On that basis, despite the sympathy I feel for Mrs Gqola having tendered her service under the mistaken impression that such was authorised, I cannot arrive at a conclusion that in terms of the applicable policies, she was appointed to act in the vacant post.
31. It is trite law that an Applicant challenging an unfair act on behalf of the Respondent bears the onus to prove that such occurred and that it was unfair. On the basis of the evidence proffered by the Applicant, this burden of proof has not been established nor the requirements met.
32. It is my finding that the Applicant has failed on a balance of probabilities to prove that she was appointed in terms of the applicable policies dictating such.
33. On such basis, I cannot grant her the relief sought.
34. It follows that in my assessment of the evidence and explanations given by the parties, that sufficient evidence was not tendered in order to support a version that the actions of the Respondent constituted an unfair labour practice.

35. The applicant has not succeeded in discharging the onus to prove her claim

36. In the light of the above I make the following award.
AWARD

a) The Applicant’s application fails.
b) No order as to costs is made.
Signature:
Catherine Willows
ELRC Panellist