25 August 2026 – ELRC978-25/26EC

Panelist: Clint Enslin
Case No.: ELRC978-25/26EC
Date of Award: 24 August 2026

In the ARBITRATION between:

Janice Arries
(Union / Applicant)

and

Department of Higher Education and Training First Respondent

East Cape Midlands TVET College Second Respondent
(Respondents)

Applicant’s representative: Carlo Adams (Nehawu)
Applicant’s address:

Telephone:
Telefax:
Email

Respondent’s representative: Simphiwe Dlamini
Respondent’s address:

Telephone:
Telefax:
Email dlamini.s@dhet.gov.za

DETAILS OF HEARING AND REPRESENTATION

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 on-line via Teams, on 28 April; 1 June and 29 June 2026.
The Applicant, Ms Janice Arries, was represented/assisted by Mr Carlo Adams, an official of NEHAWU, a registered trade union. Both the First Respondent, Department of Higher Education and Training, and the Second Respondent, East Cape Midlands TVET College, were represented by Mr Simphiwe Dlamini, a Senior Labour Relations Officer of the Respondent.

ISSUE TO BE DECIDED
3. Whether the First Respondent’s failure to place the Applicant on a higher notch and pay her accordingly, after she 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

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 First Respondent, as a PL1 lecturer at East Cape Midlands TVET College.

5.2 She commenced her employment, with the First Respondent, on 1 April 2016.

5.3 Her current salary notch (as at 23 April 2026) is R307 335 per annum.

5.4 She is currently on a REQV 13.

5.5 She obtained a Bachelor of Education Degree (Senior and Further Education and Training Phases.

5.6 To date, the Applicant’s REQV level and notch have not been adjusted as a result of the above qualification having been obtained.

The Applicant handed in a bundle of documents, marked “A”. The Respondent handed in a bundle documents marked “R”. It was agreed that the said documents were what they purported to be. Document “X” contained the calculation of what monies would be owed (quantum), if the Applicant’s claim was successful (The First Respondent disputes that any monies are owing). Parties agreed that the contents and calculations of X would be correct if the Applicant’s claim was successful.
The Applicant seeks to have her REQV status and notch corrected, in line with PAM, and also seeks back pay since 1 July 2020.
I received written closing arguments by 6 July 2026.
The matter was recorded electronically.

SURVEY OF EVIDENCE AND ARGUMENT

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

Ms Janice Arries

The Applicant, Ms Janice Arries, testified that she completed her Bachelor of Education Degree (Senior and Further Education and Training Phases) on 30 June 2020 (per item 3 page 57). She received her certificate confirming the degree on 28 May 2021 (see item 3 page 54). R Item 14 page 246 was the Public College Administrative Measures Document, used to determine the REQV level and notch adjustments. B 7.1.3 of the said document confirmed the date she obtained her qualification, being 30 June 2020, was the date to be used and not when she received the certificate. Her degree qualified her for an REQV 14 status and same should have led to a move in salary scale to notch 164 as from 1 July 2020. This adjustment amounted to a vested benefit.
The Public College Administrative Measures Act (“PCAM”) has not officially been adopted and/or gazetted. As such recognition of REQV levels should be as per the PAM document. She had sent her proof qualification documents in, via e-mail, together with her application for a bursary to study for an honours degree on 16 October 2020. This was in line with clause 4.5 of PAM (see R Item 14 page 238). On 17 November 2021, she e-mailed HR where she had again sent through all her qualifications (see R Item 5 page 85). R Item 5 page 84 was an e-mail she had sent to HR, on 13 December 2021, querying the REQV issue. No response was received. R Item 5 page 82 was an e-mail she had sent to Abonga at HR, who was dealing with REQV, dated May 2021. She also copied the Campus Manager into this email. Again she received no response.
R Item 5 page 81 was an email she sent, on 13 September 2023, to HR after she had asked her colleagues for the form to adjust her REQV level. The Deputy Campus Manager was also copied in. It was the first time she had seen the said form. This e-mail included the Lecturer Qualification Improvement Form and all her qualifications, which were attached. Again, she received no response to same. R Item 5 page 80 was another e-mail she had sent, on 15 March 2024, to an email address she received from a colleague who was struggling with the same issue. She attached all previous e-mails and documents, however, she again got no response. On 5 May 2025, she sent an e-mail to Mr Abonga Mohamba, in response to a request for her to send her qualification again. (See R Item 5 page 75). As per R Item 5 page 74, he responded on 5 May 2025 thanking her and confirming that he would keep her updated.
R Item 5 page 70 was an e-mail, dated 22 September 2025, which she had sent to Mr Lizolomzi Blani (Assistant Director HR at the time.) His response was sent on 23 September 2025, per R Item 5 page 70. It confirmed that she was currently REQV 13 and that they were waiting for a response from the First Respondent in relation to qualification improvement for all employees. This was the final communication before she lodged a grievance. She was currently on salary level 6. It was supposed to have moved to level 7 when she qualified (old notch 85). In January 2026 there was a memo sent out requesting staff to inter-alia submit their qualifications, which she had done. Despite this her REQV level and notch were still not changed.
She confirmed that she was aware that the PAM document was for the Department of Basic Education. She was also aware that the DHET had a principle Act named, Continuing Education and Training Act. She also agreed that the Employment of Educator’s Act only applied to employees in Basic Education. Despite this, she submitted that the DHET used the Public Colleges Administrative Measures (“PCAM”) for qualification improvement. This document has not been legislated and as such PAM is applicable and used.

RESPONDENT’S CASE

Mr Simphiwe Dlamini

Mr Simphiwe Dlamini, the Respondents’ representative and a senior labour relations officer, testified that they had received a legal opinion on standardization (See said document), which was signed on 11 November 2024. The opinion was based on the case of a specific employee. A second broader legal opinion was then sought from the office of the state law advisor. As per the document “Legal opinion REQV”, dated 24 March 2025, the opinion was requested on 8 February 2025. At 2(a) and (b) of this document, two of the legal questions were, 2(a) what regulates the payment for improved qualifications of TVET and CET College lecturers and 2(b) whether the PAM document which is applicable to educators, as determined by the Minister of Basic Education in terms of section 4 of the Employment of Educators Act 76 of 1998 (as amended), equally applies to TVET and CET College lecturers employed in terms of the Continuing Education and Training Act 16 of 2006?
The said legal opinion concluded at paragraph 61 “It is apparent from the applicable legal prescripts that the PAM document applies to educators appointed under the Employment of Educators Act and not to lecturers at TVET and CET Colleges who fall within the ambit of the Continuing Education and Training Act.” At paragraph 62 “Clause 4 of the GPSSBC Resolution 5 of 2014, which gives effect to clause 7 of PSCBC Resolution 1 of 2012 and provides for the recognition of improved qualifications in the Public Service, will apply to Ms Mokitoe, Clause 4 of GPSSBC Resolution 5 of 2014 provides for a once-off cash bonus of 10% of her annual salary notch, which may not exceed the maximum notch of salary level 8, for an improved qualification. It must be noted that the cash bonus is not a salary adjustment or an amendment of salary notch, but a once-off cash bonus.”
Up to this point, the Respondent had paid in terms of PAM. They no longer did so after the said legal opinion as they discovered that they were using a measure that did not apply to DHET. They also became aware that the National Education Policy on Recognition and Evaluation of Qualifications (Government Gazette notice 108 of 10 February 2017) signed on 6 December 2016, by the then Minister of Education was the applicable policy and it confirmed the abovementioned legal opinion. The Continuing Education and Training Act, under Appointment of Management Staff, Lecturers and Support Staff in Public Colleges, at clause 20(2), stated: 1) “The staff of public colleges consists of persons appointed by –
(a) The Minister in terms of the Public Service Act in posts established on the organisational structure of the Department and identified as posts to the respective colleges; and
(b) The council in posts established in addition to posts contemplated in paragraph (a).
In view of the above, they could not continue paying in terms of PAM. They now used GPSSBC Resolution 5 of 2014, which sets criteria at paragraph 5.
The DHET did not have its own business unit to determine its own salary scales and levels and as such they benchmarked with the Department of Basic Education for now. They could not implement retrospective payment in terms of PAM due to the legal opinion and legislation as same would be non-compliant. The Applicant had sent her qualification in in October 2020 for an application for funding and not for recognition and as such the improvement in qualification would not have been picked up.

ANALYSIS OF EVIDENCE AND ARGUMENT

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)
The Applicant seeks to rely the PAM document to justify her claim for increase in REQV level and improved notch. The Respondent’s view is that PAM is not applicable to the Applicant and her claim. This is based on the legal opinion received as well as the legislation read in terms thereof. The Respondents’ representative confirmed that prior to them receiving this legal opinion and scrutinising it further in terms of the relevant legislation, they had indeed dealt with improved qualifications in terms of PAM, however, since the legal opinion and the confirmation of same in terms of legislation, they are no longer able to do so.
The essence of the legal opinion (dated 24 March 2025) is set out in paragraph 61 thereof, where it states: “It is apparent from the applicable legal prescripts that the PAM document applies to educators appointed under the Employment of Educators Act and not to lecturers at TVET and CET Colleges who fall within the ambit of the Continuing Education and Training Act.” At paragraph 62 “Clause 4 of the GPSSBC Resolution 5 of 2014, which gives effect to clause 7 of PSCBC Resolution 1 of 2012 and provides for the recognition of improved qualifications in the Public Service, will apply to Ms Mokitoe, Clause 4 of GPSSBC Resolution 5 of 2014 provides for a once-off cash bonus of 10% of her annual salary notch, which may not exceed the maximum notch of salary level 8, for an improved qualification. It must be noted that the cash bonus is not a salary adjustment or an amendment of salary notch, but a once-off cash bonus.”
The Respondents’ representative confirmed that they indeed now used GPSSBC Resolution 5 of 2014, which sets criteria at paragraph 5. The Applicant correctly points out that certain employees, similar to her, had been paid out in terms of PAM previously. It should, in my view, be remembered that prior to the legal opinion having been received (said legal opinion being dated 14 March 2025), even the Respondents themselves believed that payment and notch increases for qualifications were regulated by PAM and they in fact acted as if that was the case. Having heard Mr Dlamini’s explanation as to how the change in position came about and having read the legal opinion, I believe that the current position of the Respondents is the correct one. The PAM document, previously used, which the Applicant seeks to rely upon is simply not relevant to her as a lecturer at a TVET College, in so far as her current claim goes. The reasoning therefore is set out clearly at paragraph 61 of the legal opinion.
The Applicant has brought her current dispute, seeking to rely on PAM. As stated above, by Mr Dlamini as well as in the legal opinion supported by relevant legislation, PAM is not applicable to the Applicant as she is a lecturer at a TVET College. She in fact conceded to this but felt it should be used for her claim as it had been so used in the past. I have confirmed that I concur with the view expressed in the legal opinion as supported by the legislation. The legal opinion further confirms that the correct legislation, which is to be used in cases like that of the Applicant’s, is GPSSBC Resolution 5 of 2014. Mr Dlamini also confirmed that this is indeed the legislation they use now. This document, however, sets out criteria in paragraph 5 thereof and the process to be followed, for claims in terms thereof, at paragraph 6 thereof. Despite PAM having been used previously, it would be wrong to apply it on that basis, given that it is now clear that it is not applicable to the current situation (Applicant).
Given that the Applicant seeks to rely on PAM as the basis of her claim and that same is not applicable to her in the Department of Higher Education and Training, for reasons as set out above, and that there is no ELRC Collective Agreement relied upon which would bring the matter within the jurisdiction of the ELRC, I am of the view that the ELRC lacks the jurisdiction to entertain her dispute.

AWARD