In the ARBITRATION between:

Mashego, Cowell
(Applicant)
and

Mpumalanga Department of Education
(Respondent)

Union/Applicant’s representative: Ms. Ntebo Nkoenyane obo Mashego, C
Union/Applicant’s address: P O Box 236, Bushbuckridge, 1280
Telephone: 082 816 8860
Mobile: 082 411 8481
Telefax: N/A
Email: ntebo@hlapane.com and mshcow001@gmail.com

Respondent’s representative: Mr. Sifiso Khoza
Respondent’s address: Mpumalanga Department of Education
Private Bag X11341
Nelspruit
1200
Telephone: 013 – 766 5552
Facsimile: 013 – 766 5577
Mobile: 071 113 8397
Email: c.khoza@education.mpu.gov.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing between Mashego Cowell and the Mpumalanga Department of Education was held under the auspices of the Education Labour Relation Council (“ELRC”), at the Mpumalanga Department of Education, Bohlabela Regional Office, R533/Graskop Road, Bushbuckridge. The matter was set down for arbitration on 18 November 2020 in terms of section 186(2)(a) of the Labour Relations Act 66 of 1996 (“LRA’’).

2. The proceedings were conducted in English and were manually and digitally recorded. Mr. Sebastian Khuzwayo, ELRC interpreter, provided interpreting services from Xitsonga to English and vice versa.

3. The applicant was represented by Ms. Nebo Nkoenyane, an attorney from Hlapane Attorneys, while the respondent was represented by Mr. Sifiso Khoza, official of the Mpumalanga Department of Education. The respondent submitted its bundle of documents which was marked as bundle “R” and the applicant submitted its bundle, which was marked as bundle “A”.

PRELIMINARY ISSUES
4. No preliminary issues were raised by the parties.

ISSUES TO BE DECIDED
5. The dispute was referred to the ELRC by the applicant as an Unfair Labour Practice carried out by the respondent, in respect of section 186(2)(a) of the LRA.

6. I was required to determine whether the applicant qualified for and is eligible to receive payment for the incentive benefit in terms of the Government Gazette number 30678 of 2008.

BACKGROUND TO THE DISPUTE
7. The applicant is an educator at Alfred Matshine High School since 01 August 2016 to date. In 2018, his employment was terminated and upon referring a dispute relating to an unfair dismissal to the ELRC, an arbitration hearing was held in 2019, wherein it was ruled that the applicant be reinstated with full benefits retrospectively, effective 01 January 2018.

8. Prior to the applicant’s termination of employment, during 2016 and 2017, he taught grade 12 mathematics at the school and received the incentive benefit in terms of the Government Gazette number 30678 of 2008.

9. In applying the applicant’s reinstatement, the respondent settled all benefits due, except for the teachers’ incentive benefit payment in terms of the Government Gazette number 30678 of 2008, being the basis of the current dispute that the applicant referred.

10. The applicant claims that the respondent failed to reinstate all benefits due to him and should I find in his favour, he requires the respondent to reinstate this teacher’s incentive benefit in line with the conditions of the reinstatement agreement between him and the respondent from January 2018. The applicant also seeks to be awarded an order of costs and interest, in bringing this referral.

11. As the matter referred to the ELRC by the applicant relates to section 186(2) of the LRA, claiming that the respondent acted unfairly or omitted to act in a manner that gave rise to unfair conduct relating to the provision of benefits to an employee, the onus of proof rests upon the applicant for this claim to succeed.

12. To prove their respective cases, the applicant’s representative led documented evidence and called the applicant to testify in order to prove the applicant’s case, while the respondent led evidence by relying on documented evidence, cross-questioning the applicant, without calling any witnesses.

13. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Both parties did so in writing, and I have considered these in my award below.

SURVEY OF SUBMISSIONS AND ARGUMENTS

THE APPLICANT`S CASE:
The applicant, Mr. Cowell Mashego, testified under oath that:

14. He is an educator at Alfred Matshine High School, having commenced his employment there since 01 August 2016. Prior to his employment at Alfred Matshine High School, he was employed as a lecturer at the Mapulane College of Education. He attained a BSc degree in 1995 and a Higher Education Diploma in 1996.

15. During his employment at Alfred Matshine High School in 2016 and 2017, he taught mathematics to grades 10 – 12 (2016) and grades 11 – 12 (2017). He currently teaches mathematics at the school, but not to grade 12 learners.

16. He referred to the teachers’ incentive payment contained in the Government Gazette number 30678 of 2008 stating that any educator who qualified for this benefit by way of their qualifications and teaching of mathematics to grade 12 learners, was eligible to receive this as an incentive benefit. He was paid this benefit in 2016 and 2017 for teaching mathematics to grade 12 learners.

17. The incentive benefit paid to him in respect of 2016 and 2017, was based on a signed draft memorandum of agreement for the receipt of the incentive payment as contained in the Government Gazette number 30678 of 2008. He did not receive this benefit in 2018 as he was unable to teach mathematics at the school during 2018, due to an unfair dismissal.

18. He referred a dispute to the ELRC for unfair dismissal. The arbitrator found in his favour and he was reinstated retrospectively with effect from 01 January 2018. The respondent paid the applicant all salaries due from 01 January 2018 till January 2019 and all housing allowances due to him. His pension benefits were passed on to the Government Pension Fund. No teacher’s incentive benefit in respect of Government Gazette number 30678 of 2008 was paid to him.

19 On 25 April 2019, he submitted a letter to the respondent requesting to be paid for the teacher’s incentive benefit that was due to him. He claimed that because of his unfair dismissal, he was unable to teach at the school. Had he not been unfairly dismissed, he would have taught mathematics to the grade 12 learners, making him eligible to receive the benefit.

20. During his absence, the grade 12 mathematics pass rate at Alfred Matshine High School improved from 20% in 2017 to 44.3% for the 2018 academic year. This improvement in the pass rate was the result of his hard work, having taught the grade 10 and 11 learners in 2016 and 2017. Educators who were employed to teach grade 12 mathematics in 2018 received the accolades because of his hard work during 2016 and 2017.

21. When he commenced his employment at Alfred Matshine High School, the grade 12 mathematics pass rate was around 25%. Upon his commencement of employment on 01 August 2016, no discussions were held with the headmaster in respect of targets and expectations relating to the grade 12 mathematics pass rate. All the educators at the school who were eligible for the teachers’ incentive benefit, signed the draft incentive benefit agreement. Payment in respect of this benefit was paid into his bank account.

22. There was nothing that precluded him from receiving the incentive benefit contained in Government Gazette number 30678 of 2008 for the 2018 academic year. He was teaching a scarce subject (mathematics); he was teaching at a rural school (Alfred Matshine High School) and he possessed the required qualifications (BSc & HED) to qualify for the incentive benefit.

23. Under cross examination, the applicant stated that he was temporarily employed in 2016 and 2017, only being made a permanent employee upon his reinstatement in January 2019.

24. He conceded that in line with the criteria relating to the incentive benefit contained in Government Gazette number 30678 of 2008, the incentive scheme excluded any educator subjected to another agreement or directive, rehabilitation posting, suspension without pay or absence without pay.

25. He acknowledged that as contained in the incentive benefit agreement that emanated from the Government Gazette number 30678 of 2008, in order to be eligible for the incentive, the educator was required to conform to a standard of performance being “satisfactory or above”. He conceded that the incentive was not automatic, being performance-based and that it was reviewable annually, with a specific start-date and end-date.

26. The respondent put it to the applicant that he did not teach mathematics to grade 12 during 2018, which inferred that he was not entitled to receive the incentive benefit. The renewal of the incentive agreement was not automatic but based on his performance in respect of the grade 12 mathematics pass rate being satisfactory. This was not the case, as the pass rate at the end of 2017 was lower than when he had commenced teaching mathematics to grade 12 learners at the school. Even if the applicant had been teaching at the school where he was employed in 2018, his 2016/7 agreement would not have been renewed because of his failure to have improved the grade 12 mathematics pass rate.
Both parties closed their case.

ANALYSIS OF EVIDENCE AND ARGUMENTS

27. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.

28. The applicant based its case on the legal principle of supervening impossibility, claiming that because of his unlawful dismissal, he was unable to carry out his teaching duties of grade 12 learners. This would have made him eligible to receive the teachers’ incentive benefit. He claimed to have met all the required criteria as provided in the Government Gazette number 30678 of 2008. Having received the benefit in 2016 and 2017, it follows that he was also eligible to have received this for the 2018 academic year, save for the impossibility of performance being the result of an unfair dismissal.

29. In order to prove its case using the legal principle of supervening impossibility, the applicant would first need to prove that, in the absence of the supervening impossibility, at the time of carrying out his daily employment, he was eligible for the payment of the teacher’s incentive benefit claimed.

30. The applicant testified that to meet the criteria in terms of the relevant Government Gazette, an educator was required to possess the appropriate qualifications (REQV 13 or higher), teach a scarce subject (mathematics) to grade 12 learners and/or would need to teach this at a remote school.

31. During cross examination of the applicant, the respondent successfully rebutted the applicants claim that these were the only requirements for an educator to satisfy the criteria to be eligible for the teacher’s incentive benefit.

32. In referring to the Government Gazette number 30678 of 2008, the respondent submitted several further requirements. An educator would (1) be required to have entered an “incentive contract” with the employing department, which (2) would need to have been renewed annually with the educator. The renewal is (3) based on the educator’s satisfactory performance in respect of the pass rate of the subject being taught. The incentive scheme (4) excludes any educator subjected to another agreement or directive, rehabilitation posting, suspension without pay or absence without pay.

33. The draft memorandum of agreement in respect of teachers’ incentive benefits provides a commencement date and an end-date, renewable annually, for an educator to receive payments. The payment is subject to annual review with due regard to the maintenance of the performance at the level of “satisfactory” or above and is not payable when an educator vacates an incentivised post permanently or temporarily for any period of a month or longer.

34. To determine whether the applicant could claim the 2018 incentive benefit, it is pertinent to establish whether a benefit could be paid to an educator in the absence of contract between the educator and the employing department. If the existence of a contract was a requirement, was there a binding contract between the applicant and the respondent for the 2018 academic year?

35. The applicant testified that he had signed the draft agreement in 2016/7 to be eligible for the payment of the incentive benefit. He stated that after having entered the incentive contract with the respondent, the incentive benefit was paid to him. The applicant was absent from the incentivised post in 2018, for longer than a month. He confirmed that no valid, renewed incentive agreement existed between the applicant and the respondent, which infers that the requirement of these as qualifying criteria for eligibility was not properly satisfied, in line with the relevant Government gazette and the incentive contract.

36. By his own admission, the applicant testified that upon commencement of his employment at Alfred Matshine High School, the grade 12 mathematics pass rate was 25%. He corroborated the principle’s submission that the pass rate at the end of 2017 was 20% and that in the applicant’s absence during 2018, the pass rate at the end of 2018, was 44.3%. This clearly supports the respondent’s version that the applicant failed to meet the satisfactory performance standard required in terms of the signed agreement in 2016/7.

37. The applicant argued that had he not been unlawfully dismissed in 2018, he would have been eligible for the incentive benefit. Despite his retrospective reinstatement, based on the unsatisfactory performance of the applicant in respect of the pass rate at the end of 2017, being less than it was when he commenced employment at the school, I accept the respondent’s submission that despite the applicant’s absence from the incentivised post in 2018 for longer than a month, even if he had remained therein, the incentive agreement would not have been renewed. The applicant’s presence alone did not make him eligible for the payment of the incentive benefit, as contained in the Government Gazette.

38. For a contract to be legally binding it must contain four essential elements: (1) an offer, (2) an acceptance, (3) an intention to create a legal relationship and (4) a consideration (usually money). Despite the applicant arguing that the “incentive contract” was invalid as it was a draft and not a final contract, by his own admission he stated that an offer existed (he was given the contract to sign), he accepted the offer (signed the agreement), a legal relationship existed (he taught mathematics to grade 12 learners) and a consideration existed (he was paid).

39. I am satisfied that a legal and binding agreement was entered between the applicant and the respondent for 2016/7 and that the applicant was satisfied with the status quo that existed, else he would not have been paid for the incentive benefit. I am further satisfied that no binding agreement was entered into between the parties, or would have been entered into, for the 2018 academic year.

40. In the absence of an incentive agreement between the applicant and respondent for the 2018 academic year, the applicant’s absence from the incentivised position for longer than a month and the probability of his 2016/7 incentive agreement not having been renewed as a result of his failure to have maintained or improved on the pass rate of 25% subsequent to the commencement of his employment at the school, I am satisfied that, on a balance of probabilities, the applicant was not eligible for the payment of the teacher’s incentive benefit from 01 January 2020.

41. In MV Snow Crystal Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal 2008 (4) SA 111 (SCA), para 28, Scott JA said the following about the defence: ‘As a general rule impossibility of performance brought about by vis major or casus fortuitous will excuse performance of a contract. But it will not always do so. In each case it is necessary to ‘look to the nature of the contract, the relationship of the parties, the circumstances of the case, and the nature of the impossibility invoked by the defendant, to see whether the general rule ought, in the particular circumstances of the case, to be applied’.

42. In the matter of Solidarity obo Oelofse v Armscor (SOC) Ltd and Others (21 February 2018) LC, in interpreting the Remuneration Practice and Performance Practice, the court held that the purpose of a performance bonus is to reward the right kind of performance, which includes aspiring to organisational values and that these organisational aspirations are determined by way of the exercise of a discretion. Thus, despite having met the objective criteria for a bonus, the decision to pay a performance bonus to an Employee was always subject to the exercise of a discretion by the employer to ensure adherence to organisational objectives and values as well and since the arbitrator, accepted this to be the case, the LC agreed with his approach. It is furthermore trite that in employment law terms, and under the auspices of the unfair labour practice jurisdiction, there is no such thing as an unfettered discretion; the exercise of the discretion must always be subject to being tested against basic tenets of fairness.

Award

1. The applicant, Mashego Cowell, has failed to successfully discharge the onus in this matter to prove the respondent’s (the Provincial Department of Department of Education: Mpumalanga) unfair conduct in respect of its failure to pay a benefit.

2. As a result of the aforesaid, the applicant’s claim, referred under Case No. ELRC334-20/21, is dismissed, and the ELRC is ordered to close its file in this matter.

George Georghiades
ELRC Dispute Resolution Panellist