In the arbitration between:

KAPP JESAJAH APPLICANT

and

GAUTENG DEPARTMENT OF EDUCATION RESPONDENT

ARBITRATION AWARD

1 . INTRODUCTION

.1 This is the award in the arbitration between Jesajah Kapp and the Gauteng Department of Education. The grievant was represented by Mr a Swartz of the National Union of Eductors and the department was represented by one of its deputy chief education specialists, Mr J Thipe. The arbitration was conducted in Johannesburg on 14 and 15 December 1999. Four witnesses testified and a bundle of documents was handed in.

2 . ISSUES

.1 At the commencement of the arbitration the parties informed me that they were in agreement that:

the grievant applied for the post of deputy chief education specialist (the post) during August 1996 and was subsequently appointed to the post by the department;
prior to the grievant’s appointment he was the principal at Sharonlea Primary School, which prior to broad banding was a level 5 post;
the Education Labour Relations Council’s Resolution 3 of 1996 broad banded post levels and there are 3 ranges within each band; and
the department reduced the grievant’s annual salary form R123 468 to R115 413 for the period 30 September 1998 to 30 August 1999.
.2 The issue I am asked to determine is whether the department was entitled to act as set out in paragraph 4 above.

3 .EVIDENCE

.1 The company called 3 witnesses. The grievant testified that during August 1996 he responded to an advertisement carried in the Sunday Times newspaper for the post. The post is advertised as a level 4 post which prior to broad banding would have been at post levels 5 and 6. According to the grievant, the advertisement implies a promotion because the duties of the person occupying the post far exceed those of a school principal. Since broad banding had only recently been introduced, the grievant telephoned the district director and was informed that the post was ‘definitely’ a level 6 post. The grievant then applied for and was subsequently appointed to the post, which he believed was a promotion. He would not have applied for the post if the district director had not told him it was a level 6 post because the post requires the grievant to work longer hours and he no longer qualifies for the school holidays.

.2 The grievant’s letter of appointment dated 10 July 1997 states that his salary position is R115 413, which is on the first notch of the post’s salary range. Prior to accepting the post and believing that his salary position had been incorrectly indicated, the grievant wrote to the then acting regional chief director, Dr Nwaila (Nwaila), requesting that the error be corrected. The grievant did not receive a reply from Nwaila and approached his district director, Staff Sithole (Sithole) to arrange that he be placed on the second notch within the range of the post.

.3 Sithole took the grievant’s request up and the grievant’s salary advise slip subsequently reflected that his annual salary had been increased from R115 413 to R123 468. However, shortly after 9 July 1998 the grievant received a letter from the department stating that it had been drawn to the department’s attention that his salary notch had been erroneously adjusted and that any overpayment would be deducted from his salary in due course. The overpayments were subsequently deducted from the grievant’s salary.

.4 Sithole was at the relevant time employed by the department as a district director. She testified that prior to the grievant accepting the post, she advised him to accept the post and if his salary position was not resolved the she undertook to discuss the grievant’s possible return to Sharonlea Primary School with the school’s governing body, alternatively to find the grievant a principal’s post elsewhere. Sithole confirmed that the grievant’s evidence relating to her and that the grievant was subsequently placed on the second notch within the range of the post.

.5 Nwaila is presently a chief director in the department’s north region and was at the relevant time the department’s acting chief regional director for the central region. He conceded that the decision to increase the grievant’s salary was erroneously taken by an official in his department who was not competent to take the decision. Nwaila did not know which official had taken the decision. As the then acting chief regional director, he accepts responsibility for that decision. During October 1998, Nwaila called a meeting of all interested parties aimed at resolving the grievant’s and other educators’ salary positions. Nwaila considered all the submissions and supporting documents and took the view that the grievant was not entitled to a salary increase because the post was advertised as a level 4 post and the grievant had applied for the post after broad banding had been introduced. The grievant was treated in the same way as other educators who were similarly effected.

.6 the department’s only witness was Colette Clarke (Clarke). She is employed by the department as a director of labour relations. She testified that broad banding came into effect on 1 July 1996 under which the old post levels 5 and 6 became the new post level 4. The post was advertised after 1 July 1996 and was therefore subject to the new status. The confusion around the post was caused by the an official in the department’s central regional office who was erroneously under the impression that the grievant’s appointment to the post was a promotion entitling him to a salary notch increase. The grievant’s appointment to the post was a translation and no a promotion. The department’s error was drawn to its attention by an educator, Ms Moonsamy, who is also a deputy education specialist, but who was on a salary notch lower that the grievant and to other deputy education specialists. An investigation followed, during which the error was discovered and subsequently rectified. The department is empowered to rectify its error in terms of the Regulations Regarding the Terms and Conditions of Employment of Educators (the regulations) promulgated under the Employment of Educators Act 76 of 1998 (the 1998 Act).

.7 According to Clarke, salary notches relate to conditions of service, which are nationally determined by the Minister of Education and the department is therefore not competent to amend the conditions. The fact that the grievant works longer hours and no longer qualifies for the school holidays places the grievant in a similar position to other persons in the department. In addition, the department’s offer of appointment (the offer) is clear concerning the grievant’s position and the conditions governing his appointment. If the grievant was unhappy with the offer, he need not have accepted the post.

4 . ARGUMENT

.1 Mr Swartz argued that the department was not entitled to reduce the grievant’s salary for the reasons set out below.

.2 Firstly, the department’s offer was contradictory because the grievant’s salary position remains at R115 413 per annum yet paragraph 3 of the offer congratulates the grievant on his transfer (my italics) and trusts that his service in the higher post (my italics) will be very successful.

.3 Secondly, the grievant’s position is unique. Not only did the grievant obtain confirmation from the district director that the post was a level 6 post but prior to accepting the post he wrote to Nwaila requesting that the salary position set out in the offer be adjusted. When the grievant did not receive a reply to that letter he approached Sithole for assistance following which the grievant’s salary position was adjusted.

.4 Thirdly, the grievant’s salary adjustment implied a deliberate decision and not a mere clerical error, which decision binds the department. That decision, Swartz submitted, was taken by Nwaila.

.5 Finally, the grievant had been unfairly treated because there are many other educators in a similar position to the grievant who, having been placed on the next notch within the range of their respective positions, had retained their salary positions.

.6 Mr Thipe argued firstly, that the post was clearly advertised as a level 4 post, that the offer clearly states the grievant’s salary position and that the offer is subject to the relevant applicable laws governing the employment of educators.

.7 Secondly, that the grievant was not obliged to accept the offer and could have reverted to his previous post as a principal.

.8 Thirdly, the grievant’s salary is a term and condition of his employment. The Minister of Education determines the salaries and other conditions of employment in terms of section 3(2) of the 1998 Act. Any action by an official in the department which is not in accordance with section 3(2) would be unlawful. The decision by one of the Department’s officials to adjust the grievant’s salary was not in accordance with that section and is therefore unlawful.

.9 Finally, the department is entitled to reduce the grievant’s salary under regulation 13 of the regulations promulgated under the 1998 Act.

5 .ARGUMENT OF THE PARTIES

5.1 It may well be that paragraph 3 of the department’s offer is ambiguous. However, paragraph 1 of the offer clearly states that the post is a level 4 post and that the grievant’s salary position is R115 413. Further, paragraph 2 states that the transfer (my italics) is subject to the provisions of the Educator’s Employment Act, 1994, (the Employment Act) and the regulations promulgated in terms of the Employment Act and any amendments to that Act and its regulations. The 1998 Act is the successor to the Employment Act.

5.2 Regulation 13(1) of the regulations provides that:

“If an incorrect salary on appointment, transfer or promotion or an incorrect advancement of salary was awarded or granted to an educator, or if the correct salary was awarded or granted but at a time when or in circumstances under which it should not have been awarded or granted to him or her, the employer shall correct the educator’s salary or salary advancement commenced, notwithstanding the fact that the educator concerned was unaware that an error had been made in the case where the correction amounts to a reduction of his or her salary”.

5.3 It follows that despite the representation made by the district director to the grievant concerning the level of the post, the efforts if Sithole and the decision of the official in the department to adjust the grievant’s salary, the department is entitled under regulation 13(1) to correct an incorrect salary granted to an educator.

5.4 Mr Swartz made much in argument that Nwaila took the decision to increase the grievant’s salary. In my view it is irrelevant who took the decision within the department. The grievant’s appointment to the post was a translation and not a promotion and he did not therefore acquire any right to a salary notch increase. Salary notches relate to conditions of service and under section 4 of the Act are nationally determined by the Minister of Education. It follows that the department is not competent to take such a decision and any such decision taken by one of its officials would therefore by ultra vires (beyond the officials’s legal authority). To uphold the grievant’s claim would result in binding the department to an act which was ultra vires and thereby accord legal validity to an ultra vires act, which is legally untenable. See Khani v Premer, Free State and Others 1999(20 SA 863(0) at 869 B – C. There was also no evidence to support Mr Swartz’s submission that the grievant was unfairly treated when compared to other educators in a similar position to the grievant.

5.5 The evidence reveals that the grievant was ill advised by certain of the department’s officials. There is no doubt that the grievant has been inconvenienced by the actions of officials within the department. It is incumbent on the department to ensure that its officials do not act in such a manner.

6 . THE AWARD

6.1 I accordingly determine that the department was entitled to reduce the grievant’s annual salary from R123 468 to R115 413 for the period 30 September 1998 to 30 August 1999.

________________________
ARBITRATOR
TREVOR BAILEY

24 January 2000

EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD

CASE NUMBER PSES GAAR009894 GP
APPLICANT JESAJAH KAPP
RESPONDENT DEPARTMENT OF EDUCATION
NATURE APPOINTMENT/PROMOTION
ARBITRATOR TREVOR BAILEY
DATE OF ARBITRATION 14 AND 15 DECEMBER 1999
VENUE JOHANNESBURG

REPRESENTATION:

APPLICANT MR A SWARTZ
RESPONDENT MR J THIPE

AWARD:

1 I accordingly determine that the department was entitled to reduce the grievant’s annual salary from R123 468 to R115 413 for the period 30 September 1998 to 30 August 1999.

DATE OF AWARD 24 JANUARY 2000