Case Number: ELRC56-24-25GP
Commissioner: E Maree
Date of Award: 22 October 2024
In the ARBITRATION between
Mandla Ernest Mkhezwa
(Applicant)
And
Department of Higher Education & Training Gauteng
(Respondent)
Applicant’s representative: In Person
Respondent’s representative: Mr. S. Ubisi
Details of hearing and representation
1. The arbitration regarding the alleged unfair labour practice, referred in terms of section 191 of the Labour Relations Act 66 of 1995 (as amended), ‘’the LRA’’ was set down on 18 July 2024, 26 July 2024, 11 October 2024 and 18 October 2024 via ZOOM.
2. The applicant acted on his own behalf while the respondent was represented by Mr. S. Ubisi.
Issues to be decided
3. I must determine if the respondent committed an unfair labour practise when the applicant was not awarded certain benefits ( grade progression and a once off lump sum payment) subsequent to obtaining a formal qualification, namely the NQF 8.
Background to the dispute
4. The applicant obtained a NQF 8 qualification and provided the necessary proof thereof on 17 April 2023.
5. In terms of existing policies, the applicant is entitled to a once off payment that amounts to R107,827.27 as well as an upgrade to RQF14 with back pay calculated from 17 April 2023 to date of upgrade.
Survey of evidence and argument
6. The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but has nevertheless been taken into account.
7. It was common cause that the applicant obtained the qualification (NQF 8) and provided proof thereof on 17 April 2023. The necessary documentation had been provided to the DDG who has to sign but due to a back log had not done so.
8. Mr Ubisi submitted that the once-off payment due to the applicant had been calculated as R107,827.27 and that as soon as such had been paid, the applicant would be upgraded to RQF14 with back pay calculated from 17 April 2023 to date of upgrade.
9. Mr Ubisi pleaded that due to huge backlogs that the respondent be afforded 45 days to pay the amount and to effect the upgrade and concomitant back pay. The applicant indicated that 45 -days is too long and that other colleagues had already received their benefits.
Analysis of evidence and Arguments
10. I must determine if the respondent committed an unfair labour practice when the applicant was not paid the once off amount of R107,827.27 or was not upgraded to RQF14 with back pay calculated from 17 April 2023 to date of upgrade.
11. Section 186 (2) (a) of the LRA defines an unfair labour practice as follows:
(2) 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 dismissal for a reason relating to probation] or training of an employee or relating to the provision of benefits to an employee’’.
12. It is trite law that the onus in an unfair labour practice is on an applicant to prove that the conduct complained of, in this matter the once off payment and the upgrade (with concomitant back pay), constituted an unfair labour practise (Buffalo City Public FET College v CCMA & Other (P371/12) {2016) ZALCPE 18 (handed down on 4 November 2016) .
13. The salient issues in this matter are common cause namely that the applicant obtained the qualification (NQF8) and provided proof thereof on 17 April 2023. All the necessary documentation had been provided to the DDG who has to sign but due to a back log has not done so. In this regard the only plea on behalf of the respondent was that payments be done within 45-days due to ‘’huge backlogs’’.
14. Mr Ubisi submitted that the once-off payment due to the applicant had been calculated as R107,827.27 and stated that as soon as such had been paid, the applicant would be upgraded to RQF14 with back pay calculated from 17 April 2023 to date of upgrade.
15. In Mandla Skosana v CCMA and others (JR) 2160/15) (handed down on 6 March 2019) the Court held that in determining fairness, the proper context must be considered. There exists no separate requirement of procedural fairness in an alleged unfair labour practise. The proper enquiry thus entails whether the suspension of the benefit as had happened in that matter, was objectively justified and not irrational, arbitrary or mala fide. Contrary to an unfair dismissal dispute where a clear distinction is often drawn between substantive and procedural fairness. This is not the case when determining fairness in an unfair labour practise dispute and a more holistic approach based on all the evidence should be adopted.
16. The common cause submissions show that the applicant was subjected to an unfair labour practise and the onus to proof the existence of an unfair labour practise, was discharged.
Remedy
17. Section 193(4) of the LRA determines that ‘’an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation’’
18. In this matter the applicant is entitled to a once-off payment and to be upgraded to RQF14 with concomitant backpay.
Award
19. I therefore make the following award –
19.1. The respondent, the Department of Higher Education & Training Gauteng is ordered to pay the applicant Mr. Mandla Ernest Mkhezwa an amount of R107,827.27 on or before 20 November 2024;
19.2. The respondent is further ordered to upgrade the applicant to level RQF14 on or before 20 November 2024 and to pay the back pay concomitant to such upgrade on or before 20 November 2024 and as calculated from 17 April 2023.
Dated and sighed at Pretoria on 22 October 2024
Council Commissioner E Maree